                       The Attorney              General of Texas
                                             December 4, 1980

MARK WHITE
Attorney General

                   Honorable Joe Resweber                    Opinion No. NW-285
                   Harris County Attorney
                   1001 Preston, Suite 634                   Re: Application    of rabies control
                   Houston, Texas 77002                      statutes

                   Dear Mr. Resweber:

                          Harris County adopted rabies control regulations pursuant to article
                   2372m, V.T.C.S., which authorizes (but &es not require) the commissioners
                   court of any county to do so. Subsequently, in 1979, the legislature enacted
                   article 4477-6a, V.T.C.S., a statewide rabies control measure administered
                   by the Texas Board of Health that did not expressly repeal article 2372m.
                   You ask if Harris County is sdject to the 1979 statute and if the county is
                   required thereunder to hold animals for an additional 15 days following the
                   final day of a rabies quarantine.

                          The recent legislation, among other things, places mandatory rabies
                   control responsibilities upon cities, towns, and counties, and requires that
                   cats, as well as dogs, be vaccinated. Although the two statutes have several
                   similar provisions, there are significant differences.        For example, the
                   criminal penalty for failing to vaccinate a dog is different.

                          Under the 1979 statute, a knowing failure of a dog owner to vaccinate
                   a dog at the proper time is a Class C misdemeanor offense for which a $200
                   fine is the maximum penalty.       See V.T.C.S. art. 4477-6a, S8; Penal Code
                   S12.23. Under article 2372m, the offense is a misdemeanor for which
                   penalties are graduated.    The maximum penalty for a first offense is a $50
                   fine; for the second, a $100 fine; and for each subsequent offense, 60 days in
                   jail and/or a $200 fine. V.T.C.S. art. 2372m, S3.

                          The penalties imposed by article 4477-6a apply only to persons who
                   violate its requirements that dogs and cats be vaccinated, certificated and
                   registered as required by the Texas Board of Health, and to persons who
                   bring into the state animals listed by the board as constituting a danger to
                   the public health because of the high probability that they carry rabies.
                   V.T.C.S. art. 4477-6a, S8. Although section 2 of the act gives the Texas
                   Board of Health other rule-making powers, article 4477-6a &es not attach a
                   penalty to violations of the board’s other rules. Conversely, article 2372m
                   subjects dog owners to its penalties for violating any provision of any order
                   of the commissioners court promulgated pursuant to the act or any provision




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Honorable Joe Resweber     - Page Two      (MN-285)




of any regulation established by the court, and authorizes the court to establish all
regulations necessary for the control of domestic animals to prevent the introduction
or spread of rabies, including requirements for restraint, quarantine, and reporting.
cf. V.T.C.S. art. 192-3 (dogs at large); Attorney General Opinion MW-154 (1980).

       A criminal statute that indicates an intention to repeal prior laws may have that
effect notwithstandirg    a failure to expressly so provide. See Lane v. State, 305 S.W.
2d 595 (Tex. Crim. App. 1957); 16 Tex. Jur. 2d Criminal Law-l, at 107. In our opinion,
the enactment of article 4477-6a deprived Harris County of the power to enact or
enforce orders or regulations requiring the quarantine, vaccination, or certification of
dogs for rabies except as provided by rule of the Texas Board of Health under the
authority of article 4477-6a. In Attorney General Opinion MW-167 (1980) we concluded
that section 1.03(b) of the Texas Penal Code makes conduct embraced by statutes such
as article 4477-6a, V.T.C.S., “conduct covered by” the code within the meaning of
article 1.08 of the Penal Code, which reads:

           No governmental subdivision or agency may enact or enforce a
           law that makes any conduct covered by this code an offense
           stiject to a criminal penalty. . . .

       The Penal Code and article 4477-6a were enacted subsequent to the most recent
amendment of article 2372m, and notwithstand&       its failure to expressly so provide,
we believe the 1979 legislation worked a partial repeal of article 2372m to the extent
of conflict.   See Attorney General Opinion M-1150 (1972).        Harris County is thus
subject to theprovisions     of article 4477-6a, V.T.C.S., and must comply with its
requirements. Section 5 thereof provides:

           (a) The local health authority shall quarantine for at least 10
           days any animal that the authority has probable cause to believe
           is rabid or has attacked an individual.

           . . . .

           (f) . . .   The local health authority may sell and retain the
           proceeds,    keep, grant, or destroy an animal that the owner or
           custodian    does not take possession of on or before the 15th day
           following   the final day of the quarantine.

       The “15 day” requirement applies only to animals not diagnosed as rabid and for
whom an owner does not make other arrangements.     Owners of animals quarantined are
required by the act to pay to the local health authority the reasonable costs of
quarantining and disposing of the animal. Id. If an owner has not done so within the 15
day period, the health authority may takFaction      as allowed by the statute.    Rule
301.58.03.008(a) of the Texas Department      of Health, published March 4, 1980, in
Volume 5, No. 17 of the Texas Register specifies that unowned animals may be
destroyed for purposes of rabies diagnosis prior to the end-quarantine          period,
and that owned animals may be disposed of according to written agreements with the




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        Honorable Joe Resweber    - Page Three     (MN-285)




        owners, and rule 301.58.03.007(a) allows local health authorities       to permit home
        quarantine of owned animals under certain conditions. Thus, it will not be necessary
        for Harris County to hold animals for the additional 15 day period in every case.

               The fact that the county has contracted for use of city of Houston facilities and
        services in its rabies control effort &es not alter the situation.       Article 4477-6a,
        V.T.C.S., is applicable to cities as well as counties.     The provisions of the statute
        govern quarantine facilities and practices of the city of Houston employed for the
        account of Harris County. See Tex. Dept. of Health, Rule 301.58.03.008, 5 Tex. Reg.
        814 (1980) (Rabies Control andradication    Rule). -Cf. Attorney General Opinion MW-113
        0979).

                                             SUMMARY
                       Harris County is subject to the rabies control and eradica-
                   tion provisions of article 4477-6a, V.T.C.S.

                                                     Very truly yours,




                                                     Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Bruce Youngblood
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Acting Chairman
        Jon Bible
        Rick Gilpin
        Peter Nolan
        Bruce Youngblood




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