                               ATTORNEY            GENERAL          OF TEXAS
                                            GREG        ABBOTT




                                             September 25,2006



The Honorable William E. Parham                          Opinion No. GA-0466
Waller County Criminal District Attorney
836 Austin Street, Suite 103                             Re: Whether a constable may provide animal
Hempstead, Texas 77445                                   control without the approval of the commissioners
                                                         court of his county (RQ-0465-GA)

Dear Mr. Parham:

      You ask whether a constable may provide animal control without the approval of the
commissioners court of his county.’

       Animal control in Texas is governed by two statutes: chapter 821 of the Health and Safety
Code and chapter 826 of the Health and Safety Code, the Rabies Control Act of 1981. We will
address those provisions in turn.

         Chapter 821 imposes certain duties upon a peace officer who “has reason to believe that an
animal has been or is being cruelly treated.” TEX. HEALTH & SAFETY CODE ANN. § 821.022(a)
(Vernon Supp. 2006). The term“peace officer” includes aconstable. TEX.CODECRIM. PROC. ANN.
art. 2.12 (Vernon Supp. 2006). Thus, a constable “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 anim,al.” TEX. HEALTH & SAFETY CODE ANN. 9 821.022(a) (Vernon Supp. 2006). If the
court issues the warrant, the constable must “cause the animal to be impounded.” Id. 5 821.022(c).
Therefore, while a constable may perform these duties if he has reason to believe that an animal has
been or is being cruelly treated, nothing in chapter 82lauthorizes a constable to provide general
animal control.

        We next turn to chapter 826, which provides that the Texas Board of Health2 or its designee,
“with the cooperation of the governing bodies of counties and municipalities, shah administer the



          ‘See Letter from Debra S. Mergel, Wailer County Assistant Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Mar. 14, 2006) (on file with the Opinion Committee, also availablenf
http://www.oag.state.rx.us) [hereinafter Request Letter].

         ‘The Board is now a part ofthe Health and Human Services Commission. See Act of June 2,2003,7Sth Leg.,
RX, ch. 198, $8 l.Ol-.09,2003     Tex. Gen. Laws 611,61 l-23. Because chapter 826 still refers to the “State Board of
Health,” we will, throughout this opinion, use that designation.
The Honorable William E. Parharn - Page 2               (GA-0466)



rabies control program established by this chapter.” Id. 5 826.01 l(a) (Vemorr2003). See generally
Tex. Att’y Gen. Op. No. GA-0367 (2005). In implementing its rabies control program, “the
governing body of a municipality and the commissioners court of a county may adopt ordinances or
rules” that require “the registration of each dog and cat within the jurisdiction” of the county. TEX.
HEALTH & SAFETYCODEANN. 5 826.03 l(a) (Vernon 2003). Chapter 826 “and the rules adopted
by the [State Board of Health] under this chapter are the minimum standards for rabies control.” Id.
5 826.012. “The governingbodyofamunicipalityor          thecommissioners courtofacountymayadopt
this chapter and the standards adopted by the board.” Id. 5 826.013. A commissioners court “may
adopt ordinances or rules that establish a local rabies control program in the county and set local
standards that are compattble with and equal to or more stringent than the program established by
this chapter and the rules adopted by the board.” Id. 5 826.014(a) (emphasis added). Ordinances
or rnles adopted by a commissioners court “supersede this chapter and the rules of the board within
that county so that dual enforcement will not occur.” Id. 5 826.014(b). If, however, a municipality
adopts ordinances or rules that establish a local rabies control program, those regulations “supersede
ordinances or rules adopted by the county in which the municipality is located,” chapter 826, and
board rnles “so that multiple enforcement will not occur.” Id. 5 826.015(b).

        You indicate that Wailer County “has not enacted an animal control ordinance” under chapter
826. Request Letter, supra note 1, at 2. As we have noted, section 826.014 states only that a
commissioners court “may adopt ordinances or rules that establish a local rabies control program in
the county.” TEX. HEALTH& SAFETYCODEANN. 5 826.014(a) (Vernon 2003). The word “may”
ordinarily “creates discretionary authority or grants permission or a power.” TEX.GOV’TCODEANN.
5 3 11.O16(l) (Vernon 2005). Thus, Waller County is not statutorily required to enact an animal
control ordinance. Unless and until Wailer County does so, the provisions of chapter 826 and rules
adopted thereunder by the State Board of Health govemthe rabies control program in Wailer County.

        Another portion of chapter 826, however, declares that a “commissioners court                skull
designate an offrcer to act as the local rabies control authority for the purposes of this chapter.” TEX.
HEALTH& SAFETYCODEANN. 5 826.017(a) (Vernon 2003) (emphasis added). The word “shall”
ordinarily “imposes a duty.” TEX.GOV’TCODEAWN.            5 3 11.016(2) (Vemon2005). Section 826.017
also provides that, “[elxcept as restricted by board rule, the officer designated as the local rabies
control authority may be the county health officer, municipal health officer, animal control officer,
peace officer, or any entity that the commissioners court or governing body considers appropriate.”
TEX.HEALTH& SAFETYCODEANN. 5 826.017(b) (Vernon 2003). Accordingly, a commissioners
court has a duty to designate a rabies control officer, and may choose that officer from among the
persons or entities described in section 826.017(b). A constable is a “peace officer” who may be
selected in this manner. See TEX. CODEGRIM.PROC.ANN. art. 2.12 (Vernon Supp. 2006) (“The
following are peace officers:         . (2) constables, deputy constables, and those reserve deputy
constables who hold a permanent peace officer license’issued under Chapter 1701, Occupations
Code.“).

        Section 826.017 ofthe Health and Safety Code makes clear that a commissioners court is the
proper entity to designate a rabies control officer. Animal control or rabies control is not among the
prescribed duties of a constable listed in section 86.021 of the Local Government Code. See TEX.
The Honorable William E. Parham - Page 3              (GA-0466)



<OC. GOV’T CODE   ANN. 5 86.021 (Vernon Supp. 2006). Although a constable may be authorized
by his commissioners court to serve as the rabies control officer, a constable may not so designate
himself.

        We note that section 822.033 of the Health and Safety Code, which previously required a
constable, inter alia, to kill a dog that was known to have attacked domestic animals and fowl, was
renumbered and amended in 2003, deleting the passage in subsection (d) referring to a constable.
See Act of May 30,2003,78thLeg.,          R.S., ch. 1002, § 1,2003 Tex. Gen. Laws 2941,2942. At
present, a constable has no statutorily-assigned duty under chapter 822. And as we indicated earlier
regarding chapter 826, nothing in chapter 822 permits a constable to designate himselfas the “animal
control authority” for purposes of chapter 822.
The Honorable William E. Parhsm - Page 4             (GA-0466)




                                      SUMMARY

                      Chapter 821 of the Health and Safety Code requires a
              constable to take certain actions if he believes that an animal has been
              or is being crnelly treated, but it does not permit a constable to
              designate himself as an animal control offricer. A commissioners
              court is required by section 826.017, Health and Safety Code, to
              designate an officer to act as the local rabies control authority in the
              unincorporated areas of the county. A constable may be authorized
              by the commissioners court to act in that capacity, but a constable
              may not so designate himself.

                                              Very truly yours j




RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
