                                ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                                  August 14, 2008



The Honorable Tony Goolsby                                  Opinion No. GA-0654
Chair, Committee on Administration
Texas House of Representatives                              Re: Whether the holder of a rehabilitation permit
Post Office Box 2910                                        from the Parks and Wildlife Department is exempt
Austin, Texas 78768-2910                                    from the application of section 822.102(a)(5) of
                                                            the Health and Safety Code with regard to
                                                            dangerous wild animals not covered by the permit
                                                            (RQ-0679-GA)

Dear Representative Goolsby:

       You ask whether the holder of a rehabilitation permit from the Parks and Wildlife
Department is exempt from the application of section 822.1 02(a)(5) of the Health and Safety Code
with regard to dangerous wild animals not covered by the permit. 1

        Subchapter E, chapter 822 of the Health and Safety Code relates to "dangerous wild
animals." Section 822.1 03 (a) thereofdeclares that "[a] person may not own, harbor, or have custody
or control of a dangerous wild animal for any purpose unless the person holds a certificate of
registration for that animal issued by an animal registration agency.,,2 TEX. HEALTH & SAFETY CODE
ANN. § 822.103(a) (Vemon2003). Chapter 822 defines a "dangerous wild animal" to include a lion,
tiger, ocelot, cougar, leopard, cheetah, jaguar, bobcat, lynx, serval, caracal, hyena, bear, coyote,
jackal, baboon, chimpanzee, orangutan, gorilla, "or any hybrid" of one of these animals. Id.
§ 822.101(4).

        Another section of chapter 822 lists a number of exceptions to the registration requirement
of section 822.103(a), among them governmental agencies, research facilities, and zoos. Id.
§ 822.102(a)(1)-(3) (Vernon Supp. 2007). Whereas the exceptions for governmental agencies,
research facilities, and zoos apply to those entities directly, other exceptions apply to the animals


         lLetter from Honorable Tony Goolsby, Chair, Committee on Administration, Texas House ofRepresentatives
to Honorable Greg Abbott, Attorney General of Texas (Feb. 20, 2008) (on file with the Opinion Committee, also
available at http://www.texasattorneygenera1.gov) [hereinafter Request Letter].

          2" Animal registration agency" is defined as "the municipal or county animal control office with authority over
the area where a dangerous wild animal is kept or a county sheriffin an area that does not have an animal control office."
TEX. HEALTH & SAFETY CODE ANN. § 822.101(1) (Vernon 2003).
The Honorable Tony Goolsby - Page 2                    (GA-0654)



themselves. One of these exceptions states that subchapter E does not apply to: "(5) an injured,
infirm, orphaned, or abandoned dangerous wild animal while being rehabilitated, treated, or cared
for by a licensed veterinarian, an incorporated humane society or animal shelter, or a person who
holds a rehabilitation permit issued under Subchapter C, Chapter 43, Parks and Wildlife Code."
Id. § 822.102(a)(5) (emphasis added) [hereafter "exception 5"].

        A rehabilitation permit issued under subchapter C, chapter 43 ofthe Parks and Wildlife Code
is granted with respect to a limited class of animals. Subchapter C, chapter 43 relates to "Permits
for Scientific Research, Zoological Collection, Rehabilitation, and Educational Display," and section
43.022 thereof declares that "[n]o person may collect, hold, possess, display, transport, release, or
propagate protected wildlife for the purposes of this subchapter without a pe"rmit issued under this
subchapter." TEX. PARKS & WILDLIFE CODE ANN. § 43.022(a) (Vernon 2002). Section 43.021
defines the term "protected wildlife" as:

                  all indigenous mammals, indigenous birds, indigenous reptiles,
                  indigenous amphibians, indigenous fish, and other indigenous aquatic
                  life the taking, collecting, holding, possession, propagation, release,
                  display, or transport of which is governed by a provision ofthis code
                  other than this subchapter or by a [Parks and Wildlife] commission
                  rule adopted under any provision of this code other than this
                  subchapter and includes endangered species.

Id. § 43.021. Thus, under section 43.022, only "indigenous mammals" may be the subject of a
rehabilitation permit.

        While a rehabilitation permit issued under section 43.022 of the Parks and Wildlife Code
pertains only to "indigenous mammals," chapter 822 of the Health and Safety Code pertains to
"dangerous wild animals," a class that includes mammals that are not indigenous, such as tigers and
gorillas. 3 It has been suggested that section 822.102(a)(5) of the Health and Safety Code, by
declaring that the subchapter is not applicable to an animal in the care of a person who holds a
rehabilitation permit issued under subchapter C, chapter 43 of the Parks and Wildlife Code, would
exempt such an individual from the registration requirement ofchapter 822 ofthe Health and Safety
Code for any of the dangerous wild animals listed therein and would thereby entitle a person with
a rehabilitation permit to possess or care for a dangerous wild animal of any kind. See Request
Letter, supra note 1, at 2.

       Although such a construction of section 822.102 could follow from a literal reading of
exception 5 in isolation, we believe that it is contrary to the legislative intent ofthe statute when read


        3you indicate that only four ofthe animals listed as "dangerous wild animals" in chapter 822 ofthe Health and
Safety Code are "indigenous," specifically: "cougars, bobcats, bears, and coyotes." Request Letter, supra note 1, at 1.
Although we have found no judicial decision defming the word "indigenous," its common meaning is "originating or
occurring naturally in a particular place; native." NEW OXFORD AMERICAN DICTIONARY 865 (2001). The scope ofthe
Parks and Wildlife Code is limited to the state of Texas, and thus "indigenous animals," are "native to Texas."
The Honorable Tony Goolsby - Page 3             (GA-0654)




in context of chapter 822, subchapter E as a whole. See Continental Cas. Co. v. Downs, 81 S.W.3d
803,805 (Tex. 2002) (citing section 311.011(a) ofthe Code Construction Act for the proposition that
words and phrases in statutes should be read in context and stating, "we consider a statute as a
whole, not its provisions in isolation"); Helena Chern. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.
2001) ("We should not give one provision a meaning out of harmony or inconsistent with other
provisions, although it might be susceptible to such a construction standing alone."). The manifest
purpose of chapter 822, subchapter E is to protect the public's health and safety and provide a
humane environment for dangerous wild animals. See TEX. HEALTH & SAFETY CODE ANN.
§§ 822.1 04(b)-(d) (application requirements for dangerous wild animal), 822.107 (liability insurance
required for property damage and bodily injury caused by dangerous wild animal), 822.110 (attack
by animal; escape ofanimal; liability), 822.111 (a) (power to promulgate rules for confining animals
that protect the public's health and safety, prevent escape by animals, and provide a safe and humane
environment for an animal) (Vernon 2003). According to an analysis prepared by the House
Research Organization, supporters of the bill that enacted chapter 822 said that it "would balance
the need to protect the public safety while preserving the right to own dangerous wild animals."
HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. H.B. 1362, 77th Leg., R.S. (2001).

        Moreover, the chapter 43 permit granted is specific to an animal or species. Rules of the
Parks and Wildlife Department describe the process for obtaining a rehabilitation permit. Rule
69.44(a), for example, provides that "[a]ctivities authorized by a permit issued under this section
shall be made only by the permittee(s) or subpermittee(s) named on the permit." 31 TEX. ADMIN.
CODE § 69.44(a) (Tex. Parks & Wildlife Dep't, Wildlife Rehabilitation Permits, General Provisions)
(2008). Rule 69.46 sets forth the requirements relating to permit applications. Such applications
must be "made on forms supplied by the department." Id. § 69.46(a) (Application for Permit). The
permit application, in tum, requires an applicant to "list the species you propose to rehabilitate,"
and to "state animal handling care experience." See TEX. PARKS & WILDLIFE DEP'T, WILDLIFE
REHABILITATION PERMITS, WILDLIFE REHABILITATION APPLICATION, Form PWD 1052- W7000,
ayailable at http://tpwd.state.tx.us/business/permits/land/wildlife/#rehab (last visited July 22, 2008).
An issued rehabilitation permit specifically states, as item number 8: "The following wildlife species
are authorized by this permit to be received and possessed for rehabilitation purposes only." See
TEX. PARKS & WILDLIFE DEP'T, REHABILITATION PERMIT (example) (on file with the Opinion
Committee). Finally, subchapter E's protective regulations are cumulative of other state laws and
are not intended to change other laws, particularly those addressing similar subjects. Section
822.116(a) expressly provides: "This subchapter [E] does not affect the applicability of any other,
law, rule, order, ordinance, or other legal requirement of this state or a political subdivision of this
state." TEX. HEALTH & SAFETY CODE ANN. § 822.116(a) (Vernon 2003); see also id. § 822.116(b)
("This subchapter does not prevent a municipality or county from prohibiting or regulating by
ordinance or order the ownership, possession, confinement, or care of a dangerous wild animal.").

        Consistent with the purpose and operation of subchapter E, exception 5 cannot be read to
alter or expand the controls and requirements to which persons are subject under "other laws,"
"rules," or "legal requirements," such as subchapter C, chapter 43 of the Parks and Wildlife Code.
In particular, such a conclusion would authorize a person who holds a pennit to rehabilitate a
songbird to care for a tiger or a gorilla without the necessity of obtaining a certificate of registration
The Honorable Tony Goolsby - Page 4          (GA-0654)



under section 822.103. The Legislature, which as we have observed, enacted chapter 822 in part to
protect the public from dangerous wild animals, could not have intended to entrust the care of a
particular dangerous wild animal to a person who had no expertise in the handling ofthat animal nor
the proper facilities to confine it.

        Exception 5, when read in context ofsubchapter E as a whole and consistent with that portion
ofthe Parks and Wildlife Code to which it refers and the permits granted pursuant thereto, does not
allow a permit holder to care for the entire group of.dangerous wild animals listed in section
822.101(4) of the Health and Safety Code and outside the scope ofa chapter 43 permit. Rather, it
is limited to those dangerous wild animals for which a rehabilitation permit has been issued under
the authority of section 43.022 of the Parks and Wildlife Code. We conclude, then, that the holder
ofa rehabilitation permit from the Parks and Wildlife Department is not exempt from the application
of section 822.1 02(5) of the Health and Safety Code with respect to animals not covered by that
permit.
The Honorable Tony Goolsby - Page 5         (GA-0654)




                                     SUMMARY

                      The holder ofa rehabilitation permit from the Texas Parks and
              Wildlife Department is not exempt from the application of section
              822.1 02(5) ofthe Health and Safety Code with respect to animals not
              covered by that permit, Le., those animals that are not indigenous to
              Texas.

                                            Yours very truly,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
