                                 The Attorney General of Texas
                                                  December 31, 1984
JIM MAlTOX
Attorney General

                               Eonorable Mark Whit<%                          Opinion No.    JM-294
Supreme Court Building
P. 0. BOX 12548                Governor of Texas
Austin. TX. 7871 l- 2W         P. 0. Box 12428, Capitol     Station           Re: State authority to destroy
51214752501                    Austin, Texas   787 1.1                        privately  owned starving    or
Telex 91olS74.13S7                                                            diseased animals
TeIecODier 5121475.0266

                               Dear Governor White:
714 Jackson. Suite 700
Oallas. TX. 75202.4506               Your request Letter describes   a series of events which occurred
2tU742~8944
                               over the course of several months last winter and vhich caused the
                               starvation  of numa~ous horses.   You indicate that
4824 Alberta Ave.. Suite 160
El Paso. TX. 79%5-2793                    [allthough  the situation    seems to have now abated
915633.3484                               s-hat,     your opinion is needed In order to be
                                          ready tcl taka prompt action          if  the present
.Jol Texas. Suite 700
                                          situation.  becomes aggravated      and to determine
Houslon. TX. 77002-3111                   vhat, if any.     new legfslatfon   may be needed to
7131223-5886                              alleviate!  suffering   of animals which might be
                                          trapped in. similnr circumstances    in the future.
806 Broadway. Suite 312
Lubbock, TX. 79401.3479
                                      Fortunately,    the situation    did not become aggravated and, because
8061747-5238                   of generous help ~frclmmany concerned individuals             and associations.   the
                               situation    was actually      alleviated      shortly    after   we received    your
                               letter.     Nevertheless,     your letter      expressed    concern for much more
4309 N. Tenth. Suite B
                               than just informs:1 advice about immediate. emergency .action.                   Your
MeAllen. TX. 78!301-lSS5
SlZ’S52-4547                   request called      fox extensive     research on the authority         of the Texas
                               Animal Realth Cmission          and “s      other agency or official”        to order
                               the destruction      of privately-owned       animals dying of starvation.        YOU
MO Main Ptua, Suite 400        seek .auch information.        in part,      “to determine vbat , if any, new
San Antonio. TX. ?a2052797
                               legislation    may be needed. . . .‘I Although this office            cannot suggest
512122~4191
                               new legislation      an,d no proposed legislation        has been submitted to us
                               for legal consider a,tion, we can set forth the parameters of the law as
An Equal ODD~rt~nilyl          it presently exists.
Allirmatlve Action EF’Dtovn-
                                    The on19 state agency with clear authority        to identify and order
                               the deatruction~        certain     animals   is  the Texas Animal Health
                               Commission.    There was never any question about whether the Cammission
                               may order     the dwtruction     of “diseased”     animals;  there Is clear
                               authority   for aucll action.     See Tex. Agric. Code 1161.041; Cluck v.
                               Texas Animal Eeall:b Commlaaio~ 501 S.W.2d 412 (Tex. Civ. App. - San
                               Antonio   1973, w&:    ref’d    n.r.e.1;    Nunley v. Texas Animal Health




                                                               p. 1314
Honorable   Mark White - Page :!        (JM-294)




Commission, 471 S.W.2d 144 (Tex.               Civ.   App. -   San Antonio   1971.   writ
ref’d n.r.e.1.

       The pivotal    question    raised by your letter         is whether the term
“disease”     encompasses    atmvation.       You refer       to the comission’a
authority    to order the desl:ruction      of “starving z diseased animals,”
the word “or” suggesting        alternative     findings.      Information    supplied
la connection      with your :cequest indicates           that the starvation        of
horses takes weeks and that there exists a “point of no return,” after
which veterinarians      agree that the animal cannot be saved.             After this
point,    however, the animal. may suffer          for several     days more before
dying.      Consequently,     the primary      concern     expressed     la    for  the
prevention of potential       suffering   during this period.

      As indicated,      there was never a question in this case about the
Texas Animal Realth Coarmisaion’s authoritv          to order the destruction       of
“diseased”     animals.     See ‘lex. Agric.    Code 4161.041;     Nunley v. Texas
Animal Health Commission, in                 With regard to the scope of the
commission’s     authority to wt with regard to “disease.”          the commission
is governed by the -fundalsental rul;            that,  in addition      to express
powers,    administrative      agencies   have only the powers necessary            to
carry out reasonably        the :lagislative    purpose of the law that guides
the agency.      Southwestern Savings and Loan Association           of Houston v.
Falkner.     331 S.W.2d 917 I?ex.        1960); Housing Authority       of City of
Dallas    v. Higginbotham,        143 S.W.Zd 79 (Tex.       1940).     Accordingly,
statutory     terms such as “disease”         must be read in the context           of
leglalatlvely     intended purposes.

       Section    161.041(a)    of the Texas Agriculture        Code authorizes         the
Texas Animal Bealth Commission to protect                  livestock      from certain
s ecified     diseases.     and subsection      (11) authorizes       protection      from
*iseases                 recognil:ed     as   cmnicable         by    the     veterinary
profession.”       No one sugge:rts that starvation       is itself      a communicable
disease.     Additionally,     tbr cosasisaion.     in its discretion.       “may act to
eradicate      or   control     a12r disease       that   affects      livestock     . . .
regardless     of whether the disease is communicable.”             (Emphasis added).
Agric. Code 5161.041(b).           Starvation   and extremely adverse conditions
could clearly       cause’ a t’zreat of communicable or non-communicable
disease     upon which the cwrmission.            in its discretion,           could    act
pursuant to the Agriculture             Code’s grant of authority            to “act     to
eradicate      or    control     say disease       that   affects      livestock     . . .
regardless     of whether the disease is communicable.”             (Emphasis added).
 Id.     Nevertheless,       the    nature    and extreraity       of     circumstances
sufficient     to warrant an exercise        of the police     power depend on fact
determinations      which we cannot address in the opinion process.

       Apparently,   the veterinary    profession    Is, at present.  unsettled
 as to whether starvation       Itself    actually    constitutes  a “disease.”
 Section   161.041(a)(ll)    expressly     ties    the determination    of what




                                          p.     1315
Ronorable   Mark White - Page 3      (JM-294)




constitutes   a communicable disease     to the standard practice            of the
veterinary  profession.    Section   161.041(b)      refers   to 9      “disease,”
communicable or not. which affects       livestock;      it does not expressly
tie    the meaning of “disease”       to the standard          practice     of   the
veterinary  profession.   Neu,ertheleas,    reference     to such expert advice
is implicit  In the whole scheme of animal disease control set forth in
the Agriculture    Code.  The determination      of whether starvation         could
be a “disease”    depends upor, adjudicative      facts and agency expertise
which are outside the auth>,rity of this office           to decide.     Moreover,
we must construe the commicwion’s authority over “disease”              within the
context of the meaning of t,h.e term intended by the legislature             in the
Agriculture   Code and with%1 constitutional        limits on the exercise         of
the powers conferred.

      The coarmiaaion’a powr          to control    “disease”    by ordering    the
destruction    of privately-owed.       diseased animals involves      an exercise
of the police power for the public welfare.             Because the law in Texas
regards     animals    as    private    property,    animal     owners   have   all
traditional    property    rights    in their animals; accordingly,       both the
taking of property        and th.e procedure      involved    in the taking are
relevant.     See Nunley v. Texas Animal Health Commission. supra;              see
also Dibrell        City of Coli&.       172 S.W. 550 (Tex. Civ. App. - Aus=
1914. writ ref’d).

       Exercise   of the poli~:e power of the state in designating             and
consigning to death diseased animals is not a “taking or damaging” of
property     proscribed    by ;;rticle    I.   section     17 of     the    Texas
Constitution,    nor a “taklnf” under the Fifth and Fourteenth Amendments
to the United States Constftution      because a compelling public interest
exists.    See Nunley v. Texas Animal Health Commission. supra; Attorney
General Opinions H-148 (19 v3); WW-835 (1960).          Since the Nunlee case
was decided,      however.    the Texas Supreme Court held,         in another
context,    that property ma:, not be taken without compensation under
certain circumstances,      even in the exercise    of the police  power.      See
City of Austin v. Teague, 570 S.W.Zd 389 (Tex. 1978); see also e
v. City of Waco. 396 S.W.2d 103 (Tex.              1965);   San Antonio River
Authority v. Levis,     363 S.W.2d 444 (Tex. 1962).         The constitutional
teat is whether the public need outweighs the private loss.              city of
Austin v. Teague. eupra at 393.

     With regard to the EF,cedure required,             the court    in Nunley v.
Texas Animal Health Coxnnission
                           --   stated that

                In the area of health,     where administrative
            orders have as i.beir purpose the elimination        of
            disease   or the prevention    of its   spread,     the
            courts have demor,strated a willingness  to dispense
            with the requirement of a hearing,      particularly




                                     p.   1316
Aonorable   Mark White - Page #i         (al-294)




            where the administrative          decision   ia based on test
            or inspection.

471 S.W.2d at 148.   The exectzise of such power without a hearing was
upheld because of the compeIL:Ling public interest  present and because
the admlnistrative declslon ‘KPS based on a test or inspection.  -Id.

       If the legislature         had intended the term “disease”              within the
Agriculture     Code to include           starvation,      it would necessarily        have
Included     provisions      for different         administrative       procedures.     The
considerations       applicable        t.0 an administrative           determination      of
starvation     as a “disease”         may differ       from the tests       applicable    to
traditional     diseases.       The procedural        problem is compounded by the
danger that private           property     will    be taken “solely”         to alleviate
suffering.      The Agriculture!         Code provides        the Texas Animal Health
Commission with “0 authorit>, to order destruction                   of stanting animals
solely on the basis of allev:‘.ating             suffering.      In the other instances
in which the legislature             has authorized
                                     _--                    such action,      a much more
extensive     administrative       procedure hasp been provided,            presumably to
protect    the due process an& property Interests                  of the animal owners
involved.     -See  V.T.C.S.    art.    182a,   012(b),   4.

      Consequently,      given tlw unsettled       status    of starvation      as a
“disease”    within the context. of the Agriculture            Code and given the
importance      traditionally      a,ccorded    by   the    legislature      to    the
constitutional     rights which are affected       by the commission’s      actions,
we conclude that the leglsl~~ture did not intend the term “disease”                  to
encompass starvation         alone as a disease       as a matter of law.           As’
indicated    previously,     howev ::e, depending upon the adjudicative         facts
involved,    starvation     could clearly    cause a disease threat upon which
the commission could act pursuant to                Agriculture     Code’s grant of
authority    to “act to eradicate        or control    any disease      that affects
livestock    . . . regardless       elf whether the disease      is cmnlcable.”
5161.041(b).

       Although the Agriculture    Code fails   to provide the Texas Animal
 Realth Cos+ssion      with tha! authority    to order the destruction      of
 privately-owned   starving   animals for the purpose of alleviating       the
 animals’ suffering,     a statate  which is applicable    to certain   local
 public officials    does provide some authority    to do so.  -See V.T.C.S.
 art. 182a.

       Article 182a.       V.T.C.S, :, authorizes   certain   actions         to   prevent
 cruelty to animals.        The act: provides,   in pertinent part:

                  Section 1. In this Act ‘cruelly       treated’ means
              tortured,     seriously    overworked,       unreasonably
              abandoned,    unreasonably
                            --              deprived     of   necessary
              food,   care,  or slsm,      cruelly   confined.    caused




                                         p. 1317
Honorable Hark White - Page 5            (JM-294)




          to fight        with ancther    animal,   or otherwise   cruelly
          treated.

              Sec. 2.    (a)    If a county sheriff,       constable,
          or    deputy   cons,ctble   or    an officer       who has
          responsibility       Yor    animal     control      In      an
          incorporated    cir:; or town has reason to believe
          that an animal -ias        been or is being cruelly
          treated,    he may apply to a justice        court in the
          county where the-animal       is located    for a warrant
          to seize the anLna1.         On a showing of probable
          cause to believe-chat       the animal has been or is
          being cruelly     trcdlted. the court shall issue the
          warrant and set a time within             10 days for a
          hearing in the c.ourt to determine whether the
          animal has been cruelly          treated.      The officer
          executing the wal’rant shall cause the animal to be
          impounded and sl~~ll give .written         notice    to the
          owner of the animal of the time and place of the
          justice   court hez.ring.

               (b)    If the owner of the animal is found guilty
           in county court of a violation         of Section 42.11,
           Penal Code, invo:lving the animal, this finding is
          .prima facie       evidence    at’ the hearing     that the
           animal has been cruelly treated.          Statements of an
           owner made at a hearing provided for in this Act
           are not admissible In a trial         of the owner for a
           violation    of Secl:ion 42.11. Penal Code. After all
           interested     partit!s have been given an opportunity
           to present evide;ce       at the hearing      if the court
           finds    that the &ner        of an animai has cruelly
           treated the anirm?., the court shall order a public
           sale of the animal by auction.          If the court does
           not find that th; owner of the animal has cruelly
           treated     the aniell.     the court shall      order the
           animal returned 1x1 the owner.

              .   .   .   .

              [Sec. 31 (c)     ‘If the officer  is unable to sell
          the animal at au&on.        he may cause the animal to
          be destroyed or 121~ give the animal to a nonprofit
          animal     shelter,-    pound,   or  society   for  the
          Protection    of an:$&.

          (Emphasis added).




                                         p. 1318
Honorable Mark White - Page 6         (.I%294)




      Article   182a thus provLdes some local authority         to work through
the justice    court co order the destructionof       privately-owned    animals
dying of starvation.       The (act, however, provides a necessary but very
time-consuming procedure to protect         the interests    of animal owners.
See also      art.   182a.    $4   (appeal   by animal     owner authorized).
Accordingly,    the act provli.es little   help for situations     which require
more immediate action,      such as the one presented here.

      No other state or 10~1 agency or offlclal           presently   holds the
authority    to order the destruction   of privately-owned    animals that are
dying of starvation.       In article   182a, the legislature       evidenced  a
willingne&      to view animals as something more than personal property
subject    to the uncontrolled   use or abuse of their owners. Until the
legislature    views animals a,s something other than Inanimate personal
property,     however,  the constltutlonal     protections     to which their
owners are entitled        may prevent     Immediate emergency action         to
alleviate    suffering.

                                    SIIMMARY

                The Texas Animal Realth Commission has only the
            authority     to exercise  powers reasonably necessary
            to    control     and prevent      "disease."        Although
            starvation     and extremely adverse conditions          could
            clearly cause azhreat       of "disease,"      star9etion    is
            not, as a matter of law, s disease                within the
            meaning of the Texas Agriculture              Code, section
            161.021 et seq.

                Article    182a, V.T.C.S.,     authorizes    specified
            local    government: officials     to work through the
            justice    court to tdeal with privately-owned      animals
            dying of starva.tion.         No other state or local
            agency or offic:ial     presently    holds the authority
            to order        the  destruction     of   privately-owned
            animals that are ,dying of starvation.




                                                   JIM        MATTOX
                                                   Attorney    General of Texas

 TOE GREEN
 First Assistant    Attorney   General




                                       p.   1319
Honorable Mark Uhlte - Page 7     (JM-294)




DAVID R. RICHARDS
Executive Assistant Attoruey    General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINIONCOMITTEE

Rick Gilpin, Chairman
Susan Garrison
Tony Guillory
Susan Eenricks
Jim Hoellinger
Jennifer Riggs




                                  p. 1320
