Untitled Texas Attorney General Opinion ( 1980 )

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
p. 909
” .
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
p. 910
. -
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
p. 911