      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00094-CV



Center for Food Safety, John Does 1 and 2, Darla Cherry, and Jennifer Lopez, Appellants

                                                 v.

David Lakey, in his official capacity as the Commissioner of the Texas Department of State
     Health Services, and the Texas Department of State Health Services, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
      NO. D-1-GN-10-004362, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION

               Appellants Center for Food Safety,1 John Does 1 and 2, Darla Cherry, and

Jennifer Lopez sued appellees the Texas Department of State Health Services (DSHS) and its

Commissioner David Lakey, seeking injunctive, declaratory, and mandamus relief to compel them

to administer and enforce section 821.003 of the Texas Health and Safety Code. See Tex. Health

& Safety Code § 821.003. Appellees filed a plea to the jurisdiction, and the trial court granted the

plea. For the reasons that follow, we affirm the trial court’s order dismissing appellants’ claims.


                                        BACKGROUND

               At the crux of the parties’ dispute is section 821.003 of the Health and Safety Code,

which addresses the treatment of live birds. See id. Appellants, several Texas residents and the


       1
          The Center for Food Safety describes itself as a national public interest group dedicated
to protecting its members from the risks of unsafe food sources.
Center for Food Safety, sued DSHS and its commissioner seeking to compel DSHS to enforce

section 821.003.2 They alleged that egg producers were operating in violation of section 821.003,

that DSHS had a mandatory, ministerial duty to enforce the section, and that it had failed to

discharge that duty, thereby threatening the health and safety of Texas citizens because “unsanitary

conditions in Texas egg production facilities” were a “serious public health risk,” “caused primarily

by operation practices including overcrowding cages with too many hens” and that “[t]hese

conditions increased the likelihood of Salmonella and other food-borne disease outbreaks from eggs

destined for human consumption.”

               Section 821.003 is found within Title 10 (“Health and Safety of Animals”), Chapter

821 (“Treatment and Disposition of Animals”), and Subchapter A (“Treatment of Animals”).

Subsection (a) of the section lists the persons that are subject to its requirements:


       a)      This section applies to a person who receives live birds for transportation or
               for confinement:

               (1)     on wagons or stands;
               (2)     by a person who owns a grocery store, commission house, or other
                       market house; or
               (3)     by any other person if the birds are to be closely confined.




       2
        Appellants also initially sued the Texas Health and Human Services Commission, the
Department of Agriculture, the Texas Animal Health Commission, and their respective
commissioners but later nonsuited them.

                                                  2
Id. § 821.003(a). Subsections (b) to (e) then describe requirements for treating live birds, such as

requiring “clean water and suitable food” and not exposing the birds to “undue heat or cold.” Id.

§ 821.003(b)–(e).3

                DSHS and its commissioner filed a plea to the jurisdiction and motion for summary

judgment.4 Among the grounds raised in their plea, they argued that DSHS did not have a mandatory

duty to enforce section 821.003, and, therefore, that appellants did not have standing because they



       3
           Subsections (b) to (e) of section 821.003 state in their entirety:

       (b)      The person shall immediately place the birds in coops, crates, or cages that
                are made of open slats or wire on at least three sides and that are of a height
                so that the birds can stand upright without touching the top.

       (c)      The person shall keep clean water and suitable food in troughs or other
                receptacles in the coops, crates, or cages. The troughs or other receptacles
                must be easily accessible to the confined birds and must be placed so that the
                birds cannot defile their contents.

       (d)      The person shall keep the coops, crates, or cages in a clean and wholesome
                condition and may place in each coop, crate, or cage only the number of birds
                that have room to move around and to stand without crowding each other.

       (e)      The person may not expose the birds to undue heat or cold and shall
                immediately remove all injured, diseased, or dead birds from the coops,
                crates, or cages.

Tex. Health & Safety Code § 821.003(b)–(e).
       4
          DSHS challenged the trial court’s jurisdiction based on sovereign immunity and appellants’
lack of standing. See Andrade v. NAACP, 345 S.W.3d 1, 7 (Tex. 2011) (“Generally, a citizen lacks
standing to bring a lawsuit challenging the lawfulness of governmental acts.”); Patterson v. Planned
Parenthood, 971 S.W.2d 439, 442 (Tex. 1998) (explaining that standing and ripeness focus on “the
need for a concrete injury for a justiciable claim to be presented”); Texas Ass’n of Bus. v. Texas Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (“The general test for standing in Texas requires that
there ‘(a) shall be a real controversy between the parties, which (b) will be actually determined by
the judicial declaration sought.’”).

                                                   3
had failed to state a valid claim under section 821.003. Appellants filed a response, and both parties

submitted evidence to support their positions.

                  After a hearing in 2013, the trial court granted the plea and dismissed appellants’

claims for lack of subject matter jurisdiction. In its order, the trial court stated the following grounds

for its ruling:


        •         The Court finds that while Section 821.003 of the Health & Safety Code has
                  a sanitation component, the intent of the statute is to prevent animal cruelty.
                  Defendants may consider violations of Section 821.003 for purposes of their
                  primary authority to prevent communicable diseases and may report
                  violations under Section 821.003 to other authorities, but the primary
                  enforcement mechanism for Chapter 821 is through peace officers and animal
                  control officers not Defendants.

        •         The Court also finds that Defendants’ ability to address the potential for
                  disease transmission is extensive in egg farms. Defendants have the authority
                  to inspect such egg farms under their general powers, particularly in light of
                  their enumerated powers under Chapter 81 including Sections 81.004,
                  81.021, 81.061, and 81.064. Additionally, state and local officials may assist
                  federal agencies with federal requirements regarding salmonella in eggs
                  within its own jurisdiction pursuant to federal regulations as shown by 21
                  C.F.R.§ ll8.12(c) and (d).[5]

        •         Defendant State Health Services and its Commissioner have the authority to
                  inspect egg farms since a potential outbreak could affect human health.
                  Given the repeated national examples of humans becoming sick from
                  salmonella and other diseases being spread by unsanitary conditions at farms
                  or other food production facilities, Defendants are not restricted to only
                  taking regulatory or administrative action after an outbreak of such
                  communicable diseases occurs.




        5
         Section 118.12 addresses enforcement and compliance with the production, storage, and
transportation of shell eggs, authorizes the federal Food and Drug Administration to inspect egg
production establishments, and allows state and local cooperation. See 21 C.F.R. § 118.12.

                                                    4
       •       While Defendants do not lack authority to investigate egg farms regarding
               their sanitary conditions, they are given broad discretion in how and when to
               exercise that power. Accordingly, the Court finds that it lacks jurisdiction to
               provide the remedy requested by Plaintiffs.


This appeal followed.


                                            ANALYSIS

               In their sole issue, appellants contend that the trial court erred by granting appellees’

plea to the jurisdiction because DSHS and its commissioner (collectively DSHS) have a mandatory,

nondiscretionary duty to enforce section 821.003. They urge that section 821.003 is a “health law”

within the meaning of section 12.021 of the Health and Safety Code and that section 12.021 imposes

a mandatory duty on DSHS to “administer and enforce the health laws of this state.” See Tex. Health

& Safety Code § 12.021 (stating that the “commissioner shall administer and enforce the health laws

of this state under the board’s supervision”).6 They urge that “shall means shall” in section 12.021,

see Tex. Gov’t Code § 311.016(2) (“‘Shall’ imposes a duty.”), which in turn creates an affirmative

duty to enforce the health laws including section 821.003.

               This appeal is from the grant of a plea to the jurisdiction, but appellants’ issue turns

on statutory construction. Our standard of review in either context is de novo and well-established.


       6
           The parties join issue with whether section 12.021 applies to DSHS. Section 12.021
expressly refers to the commissioner of the Texas Department of Health. Tex. Health & Safety Code
§ 12.021. In 2003, the Texas Department of Health and the Board of Health were abolished and their
powers transferred to newly formed agencies, including DSHS. See id. § 11.003 (noting that Texas
Board of Health and Texas Department of Health were abolished in 2003 and that “the powers and
duties of those entities under this chapter were transferred to other agencies”), § 1001.071 (listing
responsibilities of DSHS); see also H.B. 2292, 78th Leg., R.S., ch. 198, § 1.19, 2003 Tex. Gen. Laws
198. For purposes of this appeal, we assume without deciding that section 12.021 applies to DSHS.

                                                  5
See Texas Mun. Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007) (stating

standard of review of statutory construction); see also Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004) (stating standard of review of trial court’s ruling on plea to

jurisdiction). We begin with the plain language of section 821.003, reviewing it in the context of

the broader statutory scheme. See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean

Water, 336 S.W.3d 619, 628 (Tex. 2011) (construing statute in context of statutory scheme);

Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) (citing City of Rockwall

v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008)) (construing “the text according to its plain and

common meaning unless a contrary intention is apparent from the context or unless such a

construction leads to absurd results”); 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008)

(considering statute’s “role in the broader statutory scheme”).

               As previously stated, section 821.003 is found within Title 10, titled “Health and

Safety of Animals,” Chapter 821, titled “Treatment and Disposition of Animals,” and Subchapter

A, titled “Treatment of Animals.”7 The other subchapter of chapter 821, subchapter B titled

“Disposition of Cruelly Treated Animals,” provides the procedures for enforcing violations of

subchapter A. It sets out the procedures to obtain a warrant to seize an animal, a hearing with

possible dispositions for the animals, and an appeal.             See Tex. Health & Safety Code

§§ 821.021–.026.




       7
         In addition to section 821.003, subchapter A also has a section defining “animal,” a section
addressing the treatment of impounded animals, and a section addressing the knowledge and acts of
a corporate agent or employee. See Tex. Health & Safety Code §§ 821.001–.004.

                                                 6
               Within subchapter B, section 821.022 contains the starting point for enforcing

subchapter A violations. Titled “Seizure of Cruelly Treated Animals,” it states:


       a)      If a peace officer or an officer who has responsibility for animal control in a
               county or municipality has reason to believe that an animal has been or is
               being cruelly treated, the officer may apply to a justice court or magistrate in
               the county or to a municipal court in the municipality in which the animal is
               located for a warrant to seize the animal.

       (b)     On a showing of probable cause to believe that the animal has been or is
               being cruelly treated, the court or magistrate shall issue the warrant and set
               a time within 10 calendar days of the date of issuance for a hearing in the
               appropriate justice court or municipal court to determine whether the animal
               has been cruelly treated.

       (c)     The officer executing the warrant shall cause the animal to be impounded and
               shall give written notice to the owner of the animal of the time and place of
               the hearing.


Id. § 821.022; see also id. § 821.021(1) (defining “cruelly treated” to include “tortured,”

“unreasonably deprived of necessary food, care, or shelter,” and “cruelly confined”).

               Under the plain reading of section 821.022, the legislature expressly places

responsibility on local law enforcement officers to enforce chapter 821, including section 821.003,

by authorizing the officers to take action if they have “reason to believe that an animal has been or

is being treated cruelly.” See id. § 821.022. Further, section 821.003’s placement in chapter 821 of

title 10 makes clear that its focus is upon the manner of treatment of animals. In contrast, other

chapters of the Health and Safety Code expressly address the protection of human health, as opposed

to animal cruelty. See, e.g., id. § 11.002 (creating Texas Board of Health and Texas Department of

Health “to better protect and promote the health of the people of this state”), § 12.001(b)(2)



                                                  7
(requiring Board of Health to “examine, investigate, enter, and inspect any public place . . . as the

board determines necessary for the discovery and suppression of disease and the enforcement of any

health and sanitation law of this state”), § 81.021 (requiring Board of Health to “exercise its powers

in matters relating to protecting the public health to prevent the introduction of disease into

the state”).

               Appellants concede that a purpose of section 821.003 is to protect against the cruel

treatment of animals, but they urge that, on its face, the section has dual purposes. They argue that

an additional purpose is public health and sanitation, and that this purpose makes the statute a

“health law” within the scope of section 12.021. Appellants point to the required minimum

sanitation conditions, such as the prompt removal of dead birds, see id. § 821.003(e), which they

assert has the effect of preventing and controlling the transmission of communicable diseases, and

the inclusion of persons who are in the food supply chain. Id. § 821.003(a) (including a “person who

owns a grocery store, commission house, or other market house”). To support their dual purpose

argument, appellants contrast section 821.003 with section 821.002 and point to sections of

chapter 829.

               Section 821.002(a) requires “[a] person who impounds or causes the impoundment

of an animal” to “supply the animal with sufficient wholesome food and water during its

confinement.” Id. § 821.002(a). Appellants argue that, in contrast with section 821.003, section

821.002 does not have an additional purpose of public health and sanitation and that the difference

between the two sections makes sense because impounded animals are not kept for human food

production or consumption. But impounded animals under chapter 821 may be sold for food



                                                  8
production or consumption. See id. § 821.024 (allowing public auction of impounded animals).

Further, addressing impounded animals separately from live birds makes sense in the context of the

statutory scheme. Section 821.002 applies to “[a] person who impounds or causes the impoundment

of an animal under state law or municipal ordinance,” such as an animal—including a bird—that

has been seized and impounded. The section then applies to persons such as officers who seize

animals under section 821.022 and persons who work at facilities such as animal shelters. See id.

§§ 823.001 (defining “animal shelter” to mean “facility that keeps or legally impounds . . .

animals”), 821.022(c) (officer executing warrant shall cause the animal to be impounded).8 In

contrast, section 821.003 primarily addresses private facilities or individuals who own or transport

live birds.

               As to chapter 829, appellants urge that it shows that the legislature “recognized the

direct link between animal welfare and human health and safety.” Sections within the chapter

require the Department to “prescribe the standards and curriculum for basic and continuing education

animal control courses” and to offer basic animal control courses. See id. §§ 829.003(a), .004. But

the legislatively prescribed requirement that DSHS offer animal control courses actually supports

that DSHS does not have a mandatory, nondiscretionary duty to enforce 821.003. In contrast with

the express requirements in chapter 829, chapter 821 does not contain a provision expressly requiring

DSHS to enforce section 821.003. See City of Rockwall, 246 S.W.3d at 629 (declining to read

additional words into statute in construing statute); Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000)


        8
         Subsection (b) of section 821.002 also allows “any person” to provide food and water as
necessary if the animal is “without necessary food and water for more than 12 successive hours.”
Tex. Health & Safety Code § 821.002(b).

                                                 9
(courts “should not presume to add” to statute when legislature has demonstrated it “clearly knew”

how to add phrase in other parts of statute). Rather, it expressly provides a mechanism for the

enforcement of section 821.003 through local law enforcement.

                Further, the legislature separately granted DSHS authority with discretion to

investigate egg production facilities in other chapters of the Health and Safety Code, such as

chapter 81. See, e.g., Tex. Health & Safety Code §§ 81.003 (defining communicable disease to

include “illness that occurs through the transmission of an infectious agent or its toxic products from

a reservoir to a susceptible host, either directly, as from an infected person or animal, or indirectly

through an intermediate plant or animal host”), .021 (requiring board to “exercise its power in

matters relating to protecting the public health to prevent the introduction of disease into the state”),

.061 (requiring department to “investigate the causes of communicable disease and methods of

prevention” and authorizing it to “investigate the existence of communicable disease in the state”),

.064 (authorizing department or health authority to inspect “a public place” to prevent communicable

disease and defining “public place” to mean “all or any portion of an area, building or other structure,

or conveyance that is not used for private residential purposes, regardless of ownership”).

                Appellants argue that an officer’s authority to enforce section 821.003 is dependent

on the receipt of information from DSHS. Appellants urge that, because DSHS has refused to

investigate egg production facilities and report purported violations to appropriate officers, the

officers are unaware of violations and unable to exercise their enforcement authority. Thus,

appellants contend there is no current enforcement of section 821.003, “egg producers continue to

freely operate in violation of the law,” and, if DSHS does not have a duty to enforce the statute, “no



                                                   10
agency in Texas has the duty to ensure basic sanitary conditions in Texas egg producing facilities.”

Appellants, however, concede that DSHS “has extensive authority to address sanitation issues in

egg-production facilities under the agency’s general powers” and that “the only enforcement

mechanism within chapter 821 itself is through peace and animal control officers.”

               We also note that other governmental entities are authorized to inspect egg production

facilities. See, e.g., 21 C.F.R. § 118.12 (authorizing the federal Food and Drug Administration to

inspect egg production establishments); Tex. Health & Safety Code § 81.064 (authorizing “health

authority” to inspect public places). And section 821.003’s requirement that an officer “have reason

to believe” and to obtain a warrant to seize an animal squares with the section’s inherent penal

nature. See Granger v. Fold, 931 S.W.2d 390, 392 (Tex. App.—Beaumont 1996, orig. proceeding)

(recognizing that defendant subject to civil proceeding under chapter 821 “entitled by right to all

those guarantees affording full due process” because defendant may be subject to “loss, forfeiture

and confiscation” of the animal under section 821.023); see also Tex. Penal Code § 42.09 (offense

of cruelty to livestock animals).

               Reading the plain language of section 821.003 in the context of the statutory scheme,

we decline to construe section 12.021 to place a mandatory, nondiscretionary duty on DSHS to

enforce section 821.003 as requested by appellants. See Texas Citizens for a Safe Future & Clean

Water, 336 S.W.3d at 628.

                                         CONCLUSION

               We conclude that the trial court correctly found that it did not have jurisdiction over

appellants’ claims against DSHS and its commissioner. See Miranda, 133 S.W.3d at 227. Thus, we



                                                 11
overrule appellants’ issue and affirm the trial court’s order that granted appellees’ plea to the

jurisdiction.9



                                         __________________________________________

                                         Melissa Goodwin, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: February 19, 2014




        9
          Because we construe the statute based on its plain language, we do not address the parties’
arguments about legislative history. See Tex. Gov’t Code § 311.023(3) (stating that court “may
consider among other matters . . . legislative history”); see also id. § 311.016(1) (“‘May’ creates
discretionary authority or grants permission or a power.’”); City of Round Rock v. Rodriguez,
399 S.W.3d 130, 137 (Tex. 2013) (“When a statute is clear and unambiguous, we do not resort to
extrinsic aides such as legislative history to interpret the statute.”) (citations omitted). Further, given
our conclusion that the trial court correctly determined that it did not have jurisdiction, we do not
address other possible jurisdictional barriers to appellants’ claims, such as sovereign immunity or
other possible grounds for concluding that appellants lack standing. See Andrade, 345 S.W.3d at
7 (addressing standing generally); Texas Dep’t of Ins. v. Reconveyance, 306 S.W.3d 256, 258–59
(Tex. 2010) (deeming allegations and requested declaration “in substance ultra vires claims” and
dismissing claims against governmental entity); City of El Paso v. Heinrich, 284 S.W.3d 366,
372–73 (Tex. 2009) (explaining that suits seeking to restrain official conduct that is ultra vires of an
agency’s statutory or constitutional powers “cannot be brought against the state, which retains
immunity, but must be brought against the state actors in their official capacity” because “‘acts of
officials which are not lawfully authorized are not acts of the State’”) (citation omitted).

                                                    12
