Can a Texas constable run animal control on his own, without the county commissioners court approving it?

TX AG Opinion GA-0466: Can a constable provide animal control on his own?

Plain-English summary

The Waller County Criminal District Attorney asked whether a constable could provide animal control without the approval of the county commissioners court. The Attorney General said no, the constable cannot take that role on his own initiative, and walked through the two animal-control statutes to explain why.

The first is chapter 821 of the Health and Safety Code, which deals with cruelly treated animals. A constable is a "peace officer," and chapter 821 lets a peace officer who has reason to believe an animal has been or is being cruelly treated apply to a court for a warrant to seize the animal and, if the warrant issues, impound it. So a constable has real duties when cruelty is suspected, but the AG noted that nothing in chapter 821 authorizes a constable to provide general animal control.

The second is chapter 826, the Rabies Control Act of 1981. Under that chapter, the State Board of Health (now part of the Health and Human Services Commission) runs the rabies control program with the cooperation of counties and cities. A commissioners court may adopt its own local rabies control ordinances, but it is not required to. Waller County had not adopted such an ordinance, so chapter 826 and the board's rules governed by default there.

The key provision is section 826.017, which says a commissioners court "shall designate an officer to act as the local rabies control authority." The word "shall" imposes a duty, so the commissioners court has to designate someone. The statute lets that officer be a county or municipal health officer, an animal control officer, a peace officer, or any entity the court considers appropriate. A constable is a peace officer who can be chosen this way. But the choice belongs to the commissioners court. Animal or rabies control is not among the constable's statutory duties (the list in Local Government Code section 86.021 does not include it), so a constable may serve as rabies control authority only if the commissioners court authorizes it, and a constable cannot designate himself.

The opinion added a historical note: section 822.033 of the Health and Safety Code once required a constable to kill a dog known to have attacked domestic animals and fowl, but that reference to a constable was deleted when the statute was renumbered and amended in 2003. As of this opinion, a constable had no assigned duty under chapter 822 and could not name himself the animal control authority under that chapter either.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The animal-cruelty and rabies-control statutes in chapters 821, 822, and 826 of the Health and Safety Code, and the constable's duties in Local Government Code section 86.021, may have changed since 2006. Anyone weighing a constable's animal-control authority today should check current law rather than relying on this opinion.

Who this opinion affected (as of 2006)

Constables: The opinion told them they had cruelty-related duties under chapter 821 (seeking a seizure warrant and impounding a mistreated animal), but no power to take on general animal or rabies control on their own. They could serve as the local rabies control authority only if the commissioners court designated them.

Commissioners courts: The opinion explained that section 826.017 imposes a duty to designate a local rabies control authority, and that the court may pick a peace officer such as a constable, a health officer, an animal control officer, or any entity it considers appropriate.

Counties without a local ordinance: For a county like Waller that had not adopted its own chapter 826 ordinance, the opinion explained that chapter 826 and the State Board of Health's rules governed the rabies control program by default.

Common questions

Can a constable provide general animal control without the commissioners court's approval?
No. The opinion concluded a constable may not designate himself as the animal or rabies control authority. The commissioners court is the body that designates the local rabies control officer, and it may choose a constable, but the constable cannot self-appoint.

Does a constable have any animal-related duties?
Yes, under the cruelty statute. The opinion explained that chapter 821 lets a constable who has reason to believe an animal is being cruelly treated apply for a warrant to seize the animal and, if granted, impound it.

Who designates the local rabies control authority?
The commissioners court. The opinion read section 826.017's "shall designate" as a mandatory duty, and noted the court may pick a county or municipal health officer, an animal control officer, a peace officer, or any entity it considers appropriate.

What happened to the old law about constables killing attacking dogs?
The opinion noted that section 822.033, which once required a constable to kill a dog known to have attacked domestic animals and fowl, was renumbered and amended in 2003 to delete the reference to a constable, leaving the constable with no assigned duty under chapter 822.

Background and statutory framework

A constable is a "peace officer" under Texas Code of Criminal Procedure article 2.12 (Vernon Supp. 2006). Chapter 821 of the Health and Safety Code lets a peace officer who has reason to believe an animal is being cruelly treated seek a seizure warrant and impound the animal (Tex. Health & Safety Code Ann. § 821.022(a), (c) (Vernon Supp. 2006)), but it does not authorize general animal control.

Chapter 826, the Rabies Control Act, places administration with the State Board of Health (now part of the Health and Human Services Commission, see Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 1.01-.09, 2003 Tex. Gen. Laws 611, 611-23) and lets a commissioners court adopt local rabies ordinances (§§ 826.011(a), 826.012, 826.013, 826.014(a), (b), 826.015(b), 826.031(a) (Vernon 2003); see Tex. Att'y Gen. Op. No. GA-0367 (2005)). Section 826.017 requires the commissioners court to designate a local rabies control authority and lists who may be chosen, including a peace officer (§ 826.017(a), (b)). The Government Code's construction rules confirm "shall" imposes a duty and "may" grants discretion (Tex. Gov't Code Ann. § 311.016(1), (2) (Vernon 2005)). Animal control is not among a constable's listed duties (Tex. Loc. Gov't Code Ann. § 86.021 (Vernon Supp. 2006)), and the former constable duty in section 822.033 was deleted in 2003 (Act of May 30, 2003, 78th Leg., R.S., ch. 1002, § 1, 2003 Tex. Gen. Laws 2941, 2942).

Citations

Statutes:

• Tex. Health & Safety Code Ann. § 821.022(a), (c) (Vernon Supp. 2006); §§ 826.011(a), 826.012, 826.013, 826.014(a), (b), 826.015(b), 826.017(a), (b), 826.031(a) (Vernon 2003); § 822.033
• Tex. Code Crim. Proc. Ann. art. 2.12 (Vernon Supp. 2006)
• Tex. Gov't Code Ann. § 311.016(1), (2) (Vernon 2005)
• Tex. Loc. Gov't Code Ann. § 86.021 (Vernon Supp. 2006)
• Act of May 30, 2003, 78th Leg., R.S., ch. 1002, § 1, 2003 Tex. Gen. Laws 2941, 2942; Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 1.01-.09, 2003 Tex. Gen. Laws 611, 611-23

Prior opinions:

• Tex. Att'y Gen. Op. No. GA-0367 (2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0466
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0466.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 25, 2006

The Honorable William E. Parham
Waller County Criminal District Attorney
836 Austin Street, Suite 103
Hempstead, Texas 77445

Opinion No. GA-0466

Re: Whether a constable may provide animal control without the approval of the commissioners court of his county (RQ-0465-GA)

Dear Mr. Parham:

You ask whether a constable may provide animal control without the approval of the commissioners court of his county.

Animal control in Texas is governed by two statutes: chapter 821 of the Health and Safety Code and chapter 826 of the Health and Safety Code, the Rabies Control Act of 1981. We will address those provisions in turn.

Chapter 821 imposes certain duties upon a peace officer who "has reason to believe that an animal has been or is being cruelly treated." TEX. HEALTH & SAFETY CODE ANN. § 821.022(a) (Vernon Supp. 2006). The term "peace officer" includes a constable. TEX. CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2006). Thus, a constable "may apply to a justice court or magistrate in the county or to a municipal court in the municipality in which the animal is located for a warrant to seize the animal." TEX. HEALTH & SAFETY CODE ANN. § 821.022(a) (Vernon Supp. 2006). If the court issues the warrant, the constable must "cause the animal to be impounded." Id. § 821.022(c). Therefore, while a constable may perform these duties if he has reason to believe that an animal has been or is being cruelly treated, nothing in chapter 821 authorizes a constable to provide general animal control.

We next turn to chapter 826, which provides that the Texas Board of Health or its designee, "with the cooperation of the governing bodies of counties and municipalities, shall administer the rabies control program established by this chapter." Id. § 826.011(a) (Vernon 2003). See generally Tex. Att'y Gen. Op. No. GA-0367 (2005). In implementing its rabies control program, "the governing body of a municipality and the commissioners court of a county may adopt ordinances or rules" that require "the registration of each dog and cat within the jurisdiction" of the county. TEX. HEALTH & SAFETY CODE ANN. § 826.031(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. § 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. § 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. § 826.014(a) (emphasis added). 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. § 826.014(b). If, however, a municipality adopts ordinances or rules that establish a local rabies control program, those regulations "supersede ordinances or rules adopted by the county in which the municipality is located," chapter 826, and board rules "so that multiple enforcement will not occur." Id. § 826.015(b).

You indicate that Waller County "has not enacted an animal control ordinance" under chapter 826. Request Letter, supra note 1, at 2. As we have noted, section 826.014 states only that a commissioners court "may adopt ordinances or rules that establish a local rabies control program in the county." TEX. HEALTH & SAFETY CODE ANN. § 826.014(a) (Vernon 2003). The word "may" ordinarily "creates discretionary authority or grants permission or a power." TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 2005). Thus, Waller County is not statutorily required to enact an animal control ordinance. Unless and until Waller County does so, the provisions of chapter 826 and rules adopted thereunder by the State Board of Health govern the rabies control program in Waller County.

Another portion of chapter 826, however, declares that a "commissioners court . . . shall designate an officer to act as the local rabies control authority for the purposes of this chapter." TEX. HEALTH & SAFETY CODE ANN. § 826.017(a) (Vernon 2003) (emphasis added). The word "shall" ordinarily "imposes a duty." TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 2005). Section 826.017 also provides that, "[e]xcept as restricted by board rule, the officer designated as the local rabies control authority may be the county health officer, municipal health officer, animal control officer, peace officer, or any entity that the commissioners court or governing body considers appropriate." TEX. HEALTH & SAFETY CODE ANN. § 826.017(b) (Vernon 2003). Accordingly, a commissioners court has a duty to designate a rabies control officer, and may choose that officer from among the persons or entities described in section 826.017(b). A constable is a "peace officer" who may be selected in this manner. See TEX. CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2006) ("The following are peace officers: . . . (2) constables, deputy constables, and those reserve deputy constables who hold a permanent peace officer license issued under Chapter 1701, Occupations Code.").

Section 826.017 of the Health and Safety Code makes clear that a commissioners court is the proper entity to designate a rabies control officer. Animal control or rabies control is not among the prescribed duties of a constable listed in section 86.021 of the Local Government Code. See TEX. LOC. GOV'T CODE ANN. § 86.021 (Vernon Supp. 2006). Although a constable may be authorized by his commissioners court to serve as the rabies control officer, a constable may not so designate himself.

We note that section 822.033 of the Health and Safety Code, which previously required a constable, inter alia, to kill a dog that was known to have attacked domestic animals and fowl, was renumbered and amended in 2003, deleting the passage in subsection (d) referring to a constable. See Act of May 30, 2003, 78th Leg., R.S., ch. 1002, § 1, 2003 Tex. Gen. Laws 2941, 2942. At present, a constable has no statutorily-assigned duty under chapter 822. And as we indicated earlier regarding chapter 826, nothing in chapter 822 permits a constable to designate himself as the "animal control authority" for purposes of chapter 822.

SUMMARY

Chapter 821 of the Health and Safety Code requires a constable to take certain actions if he believes that an animal has been or is being cruelly treated, but it does not permit a constable to designate himself as an animal control officer. A commissioners court is required by section 826.017, Health and Safety Code, to designate an officer to act as the local rabies control authority in the unincorporated areas of the county. A constable may be authorized by the commissioners court to act in that capacity, but a constable may not so designate himself.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Debra S. Mergel, Waller County Assistant Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Mar. 14, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. The Board is now a part of the Health and Human Services Commission. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 1.01-.09, 2003 Tex. Gen. Laws 611, 611-23. Because chapter 826 still refers to the "State Board of Health," we will, throughout this opinion, use that designation.