Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 14,2005
The Honorable Mike Stafford Opinion No. GA-0367
Harris County Attorney
10 19 Congress, 15 th Floor Re: Whether Harris County Animal Control must
Houston, Texas 77002 provide to a private corporation that contracts
with the City of Houston information made
confidential under chapter 826 of the Health and
Safety Code (RQ-033%GA)
Dear Mr. Stafford:
You ask whether Harris County Animal Control (“HCAC”) must provide to a private
corporation that contracts with the City of Houston (the “City”) information made confidential under
chapter 826 of the Health and Safety Code.’
I. Backwound
The Rabies Control Act of 198 1, chapter 826 of the Health and Safety Code, provides that
the Texas Board of Health2, “or its designee, with the cooperation of the governing bodies of
counties and municipalities, shall administer the rabies control program established by this chapter.”
TEX. HEALTH & SAFETY CODE ANN. 9 826.01 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. Ij 826.012. “The governing body of a municipality or the commissioners court of
a county may adopt this chapter and the standards adopted by the board.” Id. fj 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 compatible 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).
Ordinances or rules 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. 8 826.014(b). Like a county,
a municipality may, by ordinance or rule, establish a local rabies control program “and set local
standards that are compatible with and equal to or more stringent than: (1) the ordinances or rules
‘See Letter from Marva Gay, Assistant County Attorney, Harris County, to Honorable Greg Abbott, Texas
Attorney General (Apr. 11,2005) ( on f11e with Opinion Committee, also available at http://www.oag.state.tx.us).
2Now a part of the Health & Human Services Commission (see Act of June 2,2003, 78th Leg., R.S., ch. 198,
H.B. 2292, $6 1 .Ol-.09, 2003 Tex. Gen. Laws 611); we refer herein to the former designation.
The Honorable Mike Stafford - Page 2 (GA-0367)
adopted by the county in which the municipality is located; and (2) the program established by this
chapter and the rules adopted by the board.” Id. 8 826015(a). Ordinances or rules adopted by a
governing body of a municipality “supersede ordinances or rules adopted by the county in which the
municipality is located, this chapter, and the rules of the board within that municipality so that
multiple enforcement will not occur.” Id. § 826.0 15(b). Thus, a municipality’s ordinances and rules
with regard to rabies control supersede chapter 826, Board of Health rules, and county ordinances
and rules, provided that the municipality’s ordinances and rules are at least as stringent as, inter alia,
chapter 826 of the Health and Safety Code and the county ordinances and rules.
Section 826.031 of the Health and Safety Code authorizes “[t)he governing body of a
municipality . . . [to] adopt ordinances or rules under Section . . . 826.015 requiring the registration
of each dog and cat within the jurisdiction of the municipality . . . .” Id. 5 826.03 1(a). In addition,
66[t]he enforcing agency may collect a fee set by ordinance for the registration of each dog or cat and
may retain the fees collected.” Id. 5 826.03 l(c). Section 826.021 provides:
(a) Except as otherwise provided by board rule, the owner of
a dog or cat shall have the animal vaccinated against rabies by the
time the animal is four months of age and at regular intervals
thereafter as prescribed by board rule.
(b) A veterinarian who vaccinates a dog or cat against rabies
shall issue to the animal’s owner a vaccination certificate in a form
that meets the minimum standards approved by the board.
(4 A county or municipality may not register or license an
animal that has not been vaccinated in accordance with this section.
Id. 5 826.021 (emphasis added).
Pursuant to its authority under chapter 826, the City by ordinance requires, with certain
exceptions, that “[n]o person shall own, keep, possess, or have control over any dog or cat within
the city unless such person has a current city license for such dog or cat.” HOUSTON, TEX.,
ORDINANCES,art. IV, Div. 1, 9 6-86(a) (1985). The ordinance states that “[a] person may obtain
a license for a cat or a dog . . . by completing the appropriate application therefor, paying the
prescribed license fee, and furnishing proof of vaccination against rabies.” Id. 5 6-86(c). Another
provision declares that “[n]o animal license shall be issued unless there is exhibited to the licensing
authority a certificate by a veterinarian showing that the animal to be licensed has been inoculated
with a rabies vaccine approved by the U. S. Department of Agriculture’s Veterinary Biologics
Division in accordance with the recommendations of the manufacturer, and that such vaccination
will not expire prior to the issuance of the license.” Id. 5 6-9 1.
You indicate that HCAC “has received a letter from PetData, Inc. (‘PetData’), which
apparently has a contract with the City of Houston Bureau of Animal Regulation and Care . . . to
collect animal licensing fees. PetData is requesting that [HCAC] periodically submit to PetData a
The Honorable Mike Stafford - Page 3 (GA-0367)
record of each rabies vaccination administered to dogs and cats owned by residents of the City of
Houston, including the owner’s name, address, and phone number.“3 You contend that HCAC is
prohibited from releasing such information to PetData by section 826.02 11 of the Health and Safety
Code, which provides the following:
(a) Information contained in a rabies vaccination certificate
or in any record compiled from the information contained in one
or more certificates that identifies or tends to identify an owner or
an address, telephone number, or other personally identifying
information of an owner of a vaccinated animal is confidential and
not subject to disclosure under Chapter 552, Government Code [the
Public Information Act] .4
(b) The information may be disclosed only to agovernmental
entity for purposes related to the protection of public health and
safety. A governmental entity that receives the information, including
a county or municipality that registers dogs and cats under Subchapter
D, must maintain the confidentiality of the information, may not
disclose the information under Chapter 552, Government Code, and
may not use the information for a purpose that does not directly
relate to the protection ofpublic health and safety.
(c) A person commits an offense if the person distributes
information that is confidential under this section. An offense under
this subsection is a misdemeanor punishable by:
(1) a fine of not more than $1,000;
(2) confinement in the county jail for not more than 180
days; or
(3) both the fine and confinement.
Act of May 25200579th Leg., R.S., ch. 1235, $ 1,2005 Tex. Sess. Law Serv. 3993,2993 (to be
codified as amended TEX. HEALTH & SAFETY CODE ANN. 5 826.0211) (emphasis added).
3See Brief from Marva Gay, Assistant County Attorney, Harris County, to Honorable Greg Abbott, Texas
Attorney General, at 1 (April 11, 2005) (on file with Opinion Committee) [hereinafter Brief].
(a) was the only provision in section 826.02 11 that was amended in the Seventy-ninth Legislative
Session.
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In your view, PetData is not a governmental entity under subsection (b) of section 826.02 11.
Nor, you contend, is PetData collecting the information for purposes “relate[d] to the protection of
public health and safety;” rather, you state that “PetData appears to operate solely as a collection
agent for the City. PetData is seeking confidential owner information to generate revenue for the
City of Houston by collecting a license fee from owners of already-vaccinated dogs and cats.
Collecting and generating revenue is a purpose that may not ‘directly relate to the protection of
public health and safety’ as is required by sections 826.0211 (b) and 826.03 1 l(b) of the Health and
Safety Code.” See Brief, supra note 2, at 4.
II. Analysis
As we have noted, municipal ordinances or rules regarding a rabies control program
supersede both ordinances and rules adopted by a county and rules promulgated by the State Board
of Health, provided that such ordinances and rules are at least as stringent as the standards set
forth in chapter 826 of the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN.
$ 826.015(b) (V emon 2003). One of the provisions found in chapter 826 is the prohibition against
disclosure of information contained in a rabies vaccination certificate to anyone other than a
“governmental entity.” See id. 5 826.0211 (b). You argue that, even if HCAC is required to disclose
the information contained in a rabies vaccination certificate to the City itself, it need not disclose that
information to PetData, which, as a private corporation and mere agent of the city, is not a
“governmental entity.” Moreover, you contend, such disclosure to PetData is prohibited by section
826.0211 (b) of the Health and Safety Code, and that statute prescribes criminal penalties for its
violations. See Brief, supra note 2, at 3-4.
The term “governmental entity” is not defined in chapter 826 of the Health and Safety Code.
The term is, however, defined in numerous other Texas statutes. See, e.g., TEX. FAM. CODE ANN.
8 101.014 (Vernon 2002) (“‘governmental entity’ means the state, a political subdivision of the
state, or an agency of the state”); TEX. GOV’T CODE ANN. 5 572.056(c) (Vernon 2004)
(“‘governmental entity’ means the state, a political subdivision of the state, or a governmental entity
created under the Texas Constitution or a statute of this state”); id. 8 2058.00 1(c) (Vernon 2000)
(“‘governmental entity’ means the state or an agency or political subdivision of the state”);
TEX. LAB. CODE ANN. § 91.001(9) (Vernon Supp. 2004-05) (“‘governmental entity’ means this
state, or an agency, county, or municipality of this state”); TEX. TRANSP. CODE ANN. 5 441 .001(4)
(Vernon 1999) (“‘governmental entity’ means a municipality, a county, or the department [of
Transportation]“). We have found no instance in which the term “governmental entity” has been
defined to include a private company. Thus, we agree that PetData is not a “governmental entity”
as that term is used in section 826.01 l(b) of the Health and Safety Code.
It has been suggested,5 however, that the following provision authorizes the county to
disclose to PetData, as an agent for the City, the information contained in a rabies vaccination
certificate and made confidential by section 826.0211 of the Health and Safety Code. Section
826.016 of the Health and Safety Code provides:
‘See Brief fromChristopher A. Richey, President, PetData, to Honorable Greg Abbott, Texas Attorney General,
at 6 (May 26,2005) (on file with Opinion Committee).
The Honorable Mike Stafford - Page 5 (GA-0367)
The governing body of a municipality and the commissioners court
of a county may enter into contracts or agreements with public or
private entities to carry out the activities required or authorized under
this chapter.
TEX. HEALTH & SAFETY CODE ANN. 5 826.016 (Vernon 2003). This provision is an affirmative
grant to local governments to enter into contracts “to carry out the activities required or authorized
under this chapter.” Id. One of the activities authorized by chapter 826 is the registration and
licensing of animals. See id. 5 826.03 l(a) (governing body of a municipality may adopt ordinances
or rules requiring the registration of dogs and cats). Section 826.0 16 does not, in our view, furnish
the authority to ignore a specific prohibition of chapter 826, i.e., that information contained in a
rabies vaccination certificate that identifies or tends to identify a pet owner may be disclosed only
to another “governmental entity.”
We conclude that, because PetData is not a “governmental entity,” Harris County Animal
Control is prohibited from disclosing to PetData any “information contained in a rabies vaccination
certificate or in any record compiled from the information contained in one or more certificates that
identifies or tends to identify an owner or an address, telephone number, or other personally
identifying information of an owner of a vaccinated animal.” Id. § 826.0211 (a)!
6See supra note 3.
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SUMMARY
Because PetData is not a “governmental entity,” Harris
County Animal Control is prohibited from disclosing to PetData
any “[i]nformation contained in a rabies vaccination certificate or in
any record compiled from the information contained in one
or more certificates that identifies or tends to identify an owner or
an address, telephone number, or other personally identifying
information of an owner of a vaccinated animal is confidential and
not subject to disclosure under Chapter 552, Government Code.”
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee