 * OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN    CORNYN




                                          October 3,200l



Mr. Ron Allen                                        Opinion No. JC-042 1
Executive Director
Texas Board of Veterinary Medical Examiners          Re: Whether a veterinarian may refuse to return
333 Guadalupe, Suite 2-330                           an animal if its owner is unable or unwilling to
Austin, Texas 78701-3998                             pay for the veterinary medical services rendered,
                                                     and related questions (RQ-037%JC)


Dear Mr. Allen:

        You have requested our opinion regarding the options available to a veterinarian if the owner
of an animal is unable or unwilling to pay for veterinary medical services rendered to the animal.
For the reasons explained below, we conclude that the veterinarian has a lien on an animal for whom
he has rendered medical services, but that the lien is not possessor-y. Furthermore, such an animal
may not be considered “abandoned” for purposes of section 801.357 of the Texas Occupations Code
so long as the owner makes a good faith effort to reclaim it.

        You first ask whether a veterinarian may refuse to return an animal to its owner if the latter
is unable or unwilling to pay for the veterinary medical services rendered.    For purposes of this
question, we assume that the veterinarian has not mailed the notice required by section 801.357 of
the Occupations Code. See discussion infia pp. 4-5.

          Domestic animals are deemed to be personal property in Texas. Bueckner v. Hamel, 886
S.W.2d 368,370 (Tex. App.-Houston [lst Dist.] 1994, writ denied). The delivery by the owner of
an animal into the custody of a veterinarian for purposes of receiving medical care is in the nature
of a bailment.    Four elements are necessary to create a bailment: (1) the delivery of personal
property by one person to another in trust for a specific purpose; (2) acceptance of such delivery;
(3) an express or implied contract that the trust will be carried out; and (4) an understanding under
the terms of the contract that the property will be returned to the transferor or dealt with as the
transferor directs.   Yoakum Grain, Inc. v. Energy Indus., Inc., 5 11 S.W.2d 95, 98 (Tex. Civ.
App.-Corpus Christi 1974, no writ). A mere bailment does not in itself create a lien on property in
the possession of the bailee. See Alice Pipe & Supply Co. v. Harroun, 195 S.W.2d 852,854 (Tex.
Civ. App.-San Antonio 1946, writ ref d n.r.e.) (once purpose of bailment is fulfilled, bailee has
obligation to return bailed property to owner, even in the absence of express requirement to do so).
Thus, we must determine whether a veterinarian holds a lien on an animal delivered to him for the
 Mr. Ron Allen    - Page 2                        (JC-042 1)




 purpose of medical treatment. Five types of lien are recognized in Texas: (1) contractual; (2)
 constitutional; (3) common law; (4) statutory; and (5) equitable. See 50 TEX.JUR. 3D Liens $5 2,12,
 41 (2000).

           A lien may be created by contract. Creation of a contractual lien results fi-om the language
  of the contract, and is based upon the intent of the parties. Inwood N. Homeowners Ass ‘n v. Harris,
  736 S.W.2d 632,634 (Tex. 1987). The language need not be explicit, but may be inferred from the
  parties’ statements and conduct. Edinburg Theatres, Inc. v. Richter, 367 S.W.2d 354,356 (Tex. Civ.
  App.-San Antonio 1963, no writ). If the veterinarian and the owner of the animal create a lien on
  the animal by contract, they may include therein any conditions not prohibited by law, including a
. provision that the veterinarian may refuse to return possession of the animal until all charges have
  been paid. You do not indicate that you are concerned about liens created by contract.

          Article XVI, section 37 of the Texas Constitution provides that “[mlechanics, artisans and
 material men, of every class, shall have a lien upon the buildings and articles made or repaired by
 them for the value of their labor done thereon, or material furnished therefor.” TEX. CONST. art.
 XVI, 8 37. A lien created under article XVI, section 37 extends to artisans who repair or otherwise
 enhance the value of personal property.       Christian v. Boyd, 222 S.W.2d 157, 160 (Tex. Civ.
 App.-Fort Worth 1949, no writ). A veterinarian has never been held to be a “mechanic, artisan or
 material man” for purposes of this constitutional provision. In Cotton Belt State Bank, Timpson v.
 Roy H. Hatcheries, Inc., 35 1 S.W.2d 325,326 (Tex. Civ. App.-Waco 1961, no writ), the court said
 that a person whose business it was to custom-hatch eggs was not entitled to a lien under article XVI,
 section 37. In our opinion, the same may be said for veterinarians.

          A common-law lien is a right in one person to retain that which is in his or her possession,
 but belongs to another, until certain demands of the person in possession are satisfied. City of
 Ingleside v. Johnson, 537 S.W.2d 145, 152 (Tex. Civ. App.-Corpus Christi 1976, no writ). This
 kind of lien arises by implication of law and is founded generally on the right to the lien as a result
 of the established usage of a particular trade. Id. Many of the cases recognizing common-law liens
 in Texas relate to the banking industry. See, e.g., San Felipe Nat ‘IBank v. Caton, 668 S. W.2d 804,
 805 (Tex. App.-Houston      [ 14th Dist.] 1984, no writ). You do not indicate, and we have found no
 information that would suggest, that common-law possessor-y liens are part of the “established
 usage” of the veterinary profession.

          The fourth category of liens consists of those created by statute. Although statutory liens do
 not require possession in order to be effective, many of them are deemed by statute to be possessory.
 Byrne v. Williams, 45 S.W.2d 336,339 (Tex. Civ. App.-Amarillo 1931, writ ref d). Subchapter A,
 chapter 70 of the Property Code recognizes a number of possessor-y liens, such as those for laundry
 and dry cleaning, for storage of motor vehicles, and for items such as dies, molds and patterns left
 in the custody of a plastic fabricator. See TEX.PROP.CODEANN. $0 70.002, ,004, ,009 (Vernon 1995
 & Supp. 2001). The only statutory lien potentially relevant to a veterinarian is that created by
 section 70.003, which provides, in relevant part:
Mr. Ron Allen    - Page 3                         (JC-0421)




                (a) A stable keeper with whom an animal is left for care has a lien on
                the animal for the amount of the charges for the care.

         We have been apprised of no case that suggests that a veterinarian may reasonably be
denominated a “stable keeper.” A “stable,” in the context of housing for animals, is defined as “[a]
building fitted with stalls, loose-boxes, rack and manger and harness appliances, in which horses are
kept. Formerly used in a wider sense: a building in which domestic animals, as cattle, goats, etc.
are kept.” XVI OXFORDENGLISHDICTIONARY 43 l(2d ed. 1989). A veterinarian’s office would not
in most circumstances meet this definition of “stable.” We assume for purposes of this opinion that
your question refers to veterinarians who do not also operate stables. Furthermore, your question
asks us to assume that the veterinarian has performed medical services on an animal. One court has
held that a lien under section 70.003 of the Property Code “allows liens for property that is stored,
not for property on which work was performed.” Dob ‘s Tire & Auto Ctr. v. Safeway Ins. Agency,
923 S.W.2d 715, 719-20 (Tex. App.-Houston           [lst Dist.] 1996, writ dism’d w.0.j.). We thus
conclude that section 70.003, which creates a possessor-y lien on certain items, does not apply to a
veterinarian who performs medical services on an animal.

         The last category of liens available in Texas is that of equitable liens. An equitable lien is
a right to have particular property subjected to the payment of a debt. 50 TEX. JUR. 3D Liens $j 15
(2000). It is ordinarily based on an implied contract arising out of the relationship of the parties and
the circumstances      of their dealings.     Richards v. Suckle, 871 S.W.2d 239, 241-42 (Tex.
App.-Houston [ 14th Dist.] 1994, no writ); seegenerally, Houston Nat ‘1Exch. Bankv. De Blanc, 247
S.W. 897,900-01 (Tex. Civ. App.-Beaumont           1923, no writ). The purpose of an equitable lien is to
enforce a purchase money obligation not otherwise secured. GXG, Inc. v. Texacal Oil & Gas, 977
S.W.2d 403, 427 (Tex. App.-Corpus Christi 1998, pet. denied). It is available only when the
claimant has no adequate remedy at law. Hoarel Sign Co. v. Dominion Equity Corp., 910 S.W.2d
140, 143 (Tex. App.-Amarillo       1995, writ denied). In the absence of an express equitable lien, a
court may declare that an implied lien exists, based on general considerations of right and justice as
applied to the relations of the parties and the circumstances of their dealings. Richards, 87 1 S.W.2d
at 241-42. Possession ordinarily remains with the debtor in an equitable lien. 50 TEX. JUR. 3~ Liens
8 15 (2000).

         After reviewing these five types of lien, we conclude as follows: A veterinarian has neither
a constitutional, common-law, nor statutory lien on an animal for which he has performed medical
services. A veterinarian has a contractual lien for such services only if his contract with the animal’s
owner specifically so provides. It follows that a veterinarian, in the usual circumstances, at most
holds an equitable lien on the animal for those services. Because an equitable lien is not possessory,
a veterinarian may not refuse to return the animal to the owner merely because the owner is
unwilling or unable to pay for the medical services rendered. Furthermore, refusal to return the
animal may amount to conversion. Conversion “occurs when one who is unauthorized wrongfully
assumes and exercises dominion and control over another’s property, to the exclusion of the true
owner’s rights, even though possession of the property may have originally been acquired by lawful
Mr. Ron Allen - Page 4                                        (JC-0421)




means.” Bosworth v. Gulf Coast Dodge, Inc., 879 S.W.2d 152,158 (Tex. App.-Houston                                [ 14th Dist.]
1994, no writ).

         You next ask whether a veterinarian may, pursuant to section 801.357 of the Occupations
Code, dispose of an animal on the grounds that it has been “abandoned” by the owner. Specifically,
you ask us to assume that “the owner makes a good faith effort to arrange with the veterinarian to
make installment payments and otherwise insists that he wants the animal returned, but the
veterinarian considers such arrangements to be unsatisfactory and refuses to return the animal to the
owner.“* Once again, for purposes of this question, we assume that the veterinarian has not mailed
the notice authorized by section 801.357 of the Occupations Code. See discussion infra pp. 4-5.

          “Abandonment is the relinquishment of a right by the owner [of property] with the intention
to forsake and desert it.” Tex. Water Rights Comm ‘n v. Wright, 464 S.W.2d 642,646 (Tex. 1971).
“The term ‘abandoned’ . . . is a question of fact to be ascertained from all the facts and
circumstances.” Fender v. Schaded, 420 S.W.2d 468,473 (Tex. Civ. App.-Tyler 1967, writ ref d
n.r.e.); see also Lopez v. State, 797 S.W.2d 272,273 (Tex. App.-Corpus Christi 1990, writ denied).
When the concept is applied to personal property, it includes an intent by the owner to leave the
property free to be appropriated by another person. R.R. Comm ‘n of Tex. v. Waste Mgmt. of Tex.,
Inc., 880 S.W.2d 835,843 (Tex. App.-Austin 1994, no writ). Because you have asked us to assume
that the owner “makes a good faith effort to arrange with the veterinarian to make installment
payments and otherwise insists that he wants the animal returned,” we conclude as a matter of law
that the owner in such circumstances has not “abandoned” his animal. Request Letter, supra note
 1, at 1.

        We next consider the options available to a veterinarian who has complied with the statutory
notice requirements of section 801.357 of the Occupations Code. That statute provides:

                   (a) A veterinarian may dispose of an animal that is abandoned in the
                   veterinarian’s care if the veterinarian:

                             (1) gives the client, by certified mail to the client’s
                             last known address, notice of the veterinarian’s
                             intention to dispose of the animal; and

                             (2) allows the client to retrieve the animal during the
                             12 days after the date the veterinarian mails the
                             notice.

                   (b) A veterinarian may not dispose of an animal under Subsection (a)
                   if:



          ‘Letter from Mr. Ron Allen, Executive Director, Texas Board of Veterinary Medical Examiners, to Honorable John Comyn,
Texas Attorney General at 1 (Apr. 25,200l) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. Ron Allen - Page 5                            (JC-0421)




                        (1) a contract between     the veterinarian   and client
                        provides otherwise; or

                        (2) after notice is given under Subsection (a), the
                        veterinarian    and client agree to extend      the
                        veterinarian’s care of the animal.

                (c) The client’s contact of the veterinarian by mail, telephone, or
                personal communication does not extend the veterinarian’s obligation
                to treat, board, or care for an animal unless the veterinarian and client
                agree to extend the veterinarian’s care of the animal.

                (d) An animal is considered abandoned on the 13th day after the date
                the veterinarian mails the notice under Subsection (a) unless an
                agreement is made to extend the care for the animal.

                (e) Notice given by a veterinarian under Subsection (a) does not
                relieve a client of liability to pay for treatment, boarding, or care
                provided by the veterinarian.

TEX. OCC. CODE ANN. 4 801.357 (Vernon 2001). Subsection (a) of section 801.357 permits the
owner to retrieve the animal “during the 12 days after the date the veterinarian mails the notice.”
The statute does not specify that either payment or a promise to pay is a condition for retrieval
during this period. Thus, even if a veterinarian has complied with the statutory notice requirements,
he must release the animal to its owner on demand during the first 12 days after mailing the requisite
notice, without regard to the owner’s inability or unwillingness to pay the accrued charges. As of
the 13th day, however, the statute deems the animal to be “abandoned.” In that case, the animal may
be “appropriated by another person,” and accordingly, the veterinarian may dispose of the animal
as he sees fit. R.R. Comm’n of Tex., 880 S.W.2d at 843.

        You also ask whether, during the period an animal is held by a veterinarian for nonpayment
of medical charges, the veterinarian is “obligated to continue medical treatment of the animal if
required for the well being of the animal.” Request Letter, supra note 1, at 1. We note that we have
determined that a veterinarian may not hold an animal for nonpayment of fees if the owner demands
his animal’s return. We thus limit our answer to those situations in which the animal’s owner has
not demanded its return.

         In a bailment for the mutual benefit of the parties, and in the absence of a special contract,
the bailee is held to an ordinary or reasonable degree of care. See Trammel1 v. Whitlock, 242 S. W.2d
157, 159 (Tex. 1951). Section 42.09 of the Penal Code provides that a person commits a class A
misdemeanor [state jail felony] if he, inter alia, “fails unreasonably to provide necessary food, care,
or shelter for an animal in his custody.” TEX. PEN. CODEANN. 8 42.09(a)(2) (Vernon Supp. 2001).
One Texas court has said that the term “necessary food,’ means “food sufficient in both quantity and
Mr. Ron Allen    - Page 6                         (JC-0421)




quality to sustain the animal in question, and the sufficiency of the quantity in terms of pounds and
bushels can only be determined in relation to the quality in terms of nutrition.” Cross v. State, 646
S. W.2d 5 14,5 16 (Tex. App.-Dallas 1982, writ ref d). By analogy, we believe that “necessary care”
includes whatever medical care is necessary “to sustain the animal in question.”

         Finally, you ask whether a veterinarian who provides “necessary treatment . . . and also
boarding fees” may charge the owner for such services “[dluring the period that [the] animal is held
by the veterinarian for nonpayment of. . . medical fees.” Request Letter, supra note 1, at l-2.
Again, we note that a veterinarian may not hold an animal for nonpayment of fees if the owner
demands the animal’s return. As discussed above, when the veterinarian has furnished notice to the
animal’s owner in accordance with section 80 1.357 of the Occupations Code, the statute itself
provides that such notice “does not relieve a client of liability to pay for treatment, boarding, or care
provided by the veterinarian.” Even when a veterinarian has not provided notice, we believe it is
clear that because a veterinarian is obligated by law to provide necessary care to the animal,
including medical and boarding services, he may recover from the owner expenses for performing
those services, and that he may have an equitable lien on the animal for payment. As previously
noted, the purpose of an equitable lien is “to enforce a purchase money obligation not otherwise
secured.” GXC, Inc., 977 S.W.2d at 427. Thus, a veterinarian who provides “necessary treatment”
to an animal in his custody is entitled to recover from the owner the veterinarian’s reasonable
charges for performing that treatment, as well as boarding fees.
Mr. Ron Allen - Page 7                          (JC-0421)




                                       SUMMARY

                        If a veterinarian has complied with the notice requirements of
               section 801.357 of the Texas Occupations Code, he must, during the
               first 12 days after mailing the notice, release to the owner upon
               demand an animal for which he has performed veterinary medical
               services, without regard to the inability or unwillingness of the owner
               to pay the accrued charges. On the 13th day after the veterinarian has
               mailed the notice, the animal is deemed “abandoned,” and the
               veterinarian may dispose of the animal as he sees fit. If the
               veterinarian has not complied with the statutory notice requirements,
               he may not at any time refuse to return the animal to its owner upon
               demand. A veterinarian may have an equitable lien on an animal for
               which he has performed medical services, but such lien is not
               possessory. A veterinarian is required by both common and criminal
               law to continue medical treatment for an animal in his custody if such
               care is required for the animal’s well-being.       A veterinarian who
               provides necessary treatment to an animal in his custody is entitled to
               recover from the owner the veterinarian’s reasonable expenses in
               performing that treatment and boarding the animal.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
