Can a Texas county penalize a dog owner for a public nuisance because the dog barks too much?

Plain-English summary

Bandera County adopted a Rabies and Animal Control Order in 2009 that defined a "public nuisance" to include letting an animal disturb the neighborhood with excessive barking. The 2009 order set no penalty for that, so in 2022 the commissioners court amended it to make excessive barking a misdemeanor with a notice-and-penalty framework. County Attorney Janna Lindig asked the AG whether the county had authority to enact that 2022 modification. The AG's answer was no.

The reasoning starts with how limited Texas counties are. Article V, section 18(b) of the Constitution lets a commissioners court exercise powers over "county business," but the Texas Supreme Court has long held this does not itself confer general authority; it instead limits what the Legislature may hand to a commissioners court. Counties and county officials "possess only such powers and privileges as have been expressly or impliedly conferred upon them," so "the legal basis for any action taken must be grounded ultimately in the constitution or statutes."

That defeats the county's first argument, that the order serves the public interest. A commissioners court "has no general police power, such as that possessed by the State and by the many municipalities." Cities have express statutory authority to adopt police regulations for "good government, peace, or order"; counties do not.

The county's second argument leaned on the Rabies Control Act of 1981, which lets a county adopt a local rabies-control program and "require . . . that each dog . . . be restrained by its owner," with a Class C misdemeanor for failing to do so. The county argued "restrained" is broad enough to include reining in excessive barking. The AG disagreed. Reading "restrain" by its plain meaning and in context, the AG concluded it refers to controlling an animal's movement (holding it back, confining it, depriving it of liberty), not its noise. The Act's other references to restraint (its quarantine definition, the separate statutory definition of "restraint" as a chain, leash, or tether) all point to physical movement, and courts describe section 826.033 as addressing "the restriction of roaming animals." So the Act does not authorize a barking order.

Finally, the AG addressed the nuisance framing directly. The Act lets a county declare a "stray dog or cat" a public nuisance, and the general county nuisance-abatement statute does not reach barking dogs. Crucially, unlike municipalities, counties have not been given authority to "define and declare what constitutes a nuisance." A commissioners court "cannot expand the definition of 'nuisance' without coordinate statutory or constitutional authority." That the 2009 order had never been challenged did not give the county power it never had.

What this means for you

If you are a county commissioner

Based on this opinion, a county cannot create and penalize a barking-dog nuisance on its own. A commissioners court has no general police power, and the Rabies Control Act's authority to require dogs be "restrained" covers movement, not noise. The AG concluded a county cannot define or expand what counts as a nuisance the way a city can. Any county order penalizing barking needs a specific statutory or constitutional grant the AG did not find.

If you are a county attorney

The opinion holds the Bandera County modification order exceeded the commissioners court's authority. The fact that an older order went unchallenged does not cure the lack of authority. If a county wants to reach noise problems, the path the AG points to is the Legislature, not a locally invented nuisance definition.

If you are an animal control officer

The opinion ties county animal-control authority under the Rabies Control Act to physical restraint and roaming, not barking. Enforcement actions premised on a barking-as-nuisance theory rest on authority the AG concluded the county does not have.

If you are a dog owner

The opinion concludes Bandera County's order penalizing owners for a dog's excessive barking was beyond the county's authority. It does not address whether a city ordinance, a private nuisance lawsuit, or a future statute could reach the same conduct.

Common questions

Q: Can a Texas county fine me because my dog barks too much?
A: Based on this opinion, no. The AG concluded a commissioners court lacks authority to penalize a dog owner for excessive barking, because counties have no general police power and no statute grants that authority.

Q: Doesn't the Rabies Control Act let the county require dogs to be "restrained"?
A: Yes, but the AG concluded "restrained" means controlling the animal's movement (leashing, penning, confining), not controlling its barking.

Q: Why can a city regulate barking but not a county?
A: The AG explained that municipalities have express statutory authority to adopt police regulations and to "define and declare what constitutes a nuisance," while counties do not.

Q: The old 2009 order was never challenged. Doesn't that make it valid?
A: No. The AG concluded that an unchallenged order does not give the commissioners court authority it never possessed under the Constitution or statutes.

Q: Can a county ever address a barking-dog problem?
A: The opinion does not foreclose a future statutory grant or other legal remedies; it holds only that, as the law stood, the county lacked authority to enact the penalty order described.

Background and statutory framework

A county commissioners court exercises only the powers over "county business" conferred by the Constitution and state law (Tex. Const. art. V, § 18(b)), and that phrase limits rather than confers authority (Bland v. Orr, 39 S.W. 558 (Tex. 1897); Sun Vapor Elec. Light Co. v. Kenan, 30 S.W. 868 (Tex. 1895)). Counties "possess only such powers and privileges as have been expressly or impliedly conferred upon them" (State v. Hollins, 620 S.W.3d 400, 406 (Tex. 2020) (quoting Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 430 (Tex. 2016))), so any action "must be grounded ultimately in the constitution or statutes" (Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993); Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)). A commissioners court "has no general police power" of the kind cities possess (Upton Cnty. v. Brown, 960 S.W.2d 808, 818 (Tex. App.—El Paso 1997, no pet.); cf. Tex. Loc. Gov't Code § 51.001(1)).

The Rabies Control Act of 1981 establishes a statewide rabies-control program (Tex. Health & Safety Code §§ 826.001–.055). A commissioners court may adopt the state minimum standards (id. § 826.013) or its own local program with compatible, equal-or-stricter standards (id. § 826.014(a)), and may require that "each dog . . . be restrained by its owner," with a Class C misdemeanor for failure to restrain (id. §§ 826.033(a)(1), 826.034). Reading "restrain" by its plain meaning in context (Tex. Gov't Code § 311.011(a); Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d 725, 735 (Tex. 2024); Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405 (Tex. 2016); Sunstate Equip. Co. v. Hegar, 601 S.W.3d 685, 690 (Tex. 2020)), the AG concluded it contemplates an animal's movement, confirmed by the Act's quarantine definition (id. § 826.002(9)(B)) and the separate definition of "restraint" as a chain, leash, or tether (id. § 821.101(7)), and by courts describing section 826.033 as addressing "the restriction of roaming animals" (Garza v. Ochoa, 2021 WL 2231931, at *2–3 (Tex. App.—Corpus Christi-Edinburg 2021, no pet.)).

On nuisance authority, the Act lets a county declare a "stray dog or cat" a public nuisance (Tex. Health & Safety Code § 826.033(a)(2)), and the general county nuisance statute does not reach barking dogs (id. § 343.011(c)). Unlike municipalities, counties have no authority to "define and declare what constitutes a nuisance" (cf. Tex. Loc. Gov't Code § 217.002(2)), and a commissioners court "cannot expand the definition of 'nuisance' without coordinate statutory or constitutional authority" (Guynes, 861 S.W.2d at 863).

Citations and references

Statutes:
- Tex. Health & Safety Code § 826.033 — local rabies-control program; restraint requirement; stray-animal nuisance
- Tex. Loc. Gov't Code § 217.002 — municipal authority to define and declare a nuisance (counties lack this)
- Tex. Const. art. V, § 18(b) — commissioners court powers over county business

Key cases:
- State v. Hollins, 620 S.W.3d 400 (Tex. 2020) — counties hold only expressly or impliedly conferred powers
- Upton Cnty. v. Brown, 960 S.W.2d 808 (Tex. App.—El Paso 1997, no pet.) — a commissioners court has no general police power

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0491
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2025/kp-0491.pdf

Original opinion text

KEN PAXTON
Attorney General of Texas

June 25, 2025

The Honorable Janna Lindig
Bandera County Attorney
Post Office Box 656
Bandera, Texas 78003

Opinion No. KP-0491

Re: Authority of a county commissioners court to enact an order penalizing a dog owner for a public nuisance due to the dog's excessive barking (RQ-0557-KP)

Dear Ms. Lindig:

You ask whether the Bandera County commissioners court may enact an order penalizing a dog owner for causing a public nuisance due to the dog's excessive barking. As background, you tell us the county adopted a Rabies and Animal Control Order in 2009 which, among other things, defined a "public nuisance" to include "allowing an animal to[] . . . [c]ause a disturbance by excessive barking or noise making near the private residence of another or to the extent that the barking or noise disturbs the peace or quiet of any neighborhood or can be heard from within the residence of another." Request Letter at 2 (referring to subsection 1.32(4) of the 2009 order). You explain that this order failed to establish consequences for an owner causing a public nuisance as defined by subsection 1.32(4). Id. To address this concern, the commissioners court adopted an order in 2022 that modified the 2009 order by penalizing a dog owner for committing a public nuisance under subsection 1.32(4). Id. at 3–4. The modification order created a misdemeanor offense and set forth a framework for notice and penalties. Id. at 4. You ask this office whether the county had "the authority under its official duties and powers to enter" the modification order. Id. at 6. We begin by examining the authority of a commissioners court.

[Footnote 1: See Letter and Attachments from Hon. Janna Lindig, Bandera Cnty. Att'y, to Hon. Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 8, 2024) ("Request Letter" and "Attachments," respectively).]

Limited Authority of Counties

Article V, subsection 18(b) of the Texas Constitution authorizes a county commissioners court to "exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State." TEX. CONST. art. V, § 18(b). The Texas Supreme Court has long held that this provision does not "immediately confer jurisdiction upon [commissioners courts] over the county business[] . . . nor authority generally over such business." See, e.g., Bland v. Orr, 39 S.W. 558, 559 (Tex. 1897); Mills Cnty. v. Lampasas Cnty., 40 S.W. 403, 404 (Tex. 1897) (observing the same). Instead, the reference to "county business" acts as a limitation on the scope of power the Legislature may confer on the commissioners court. Sun Vapor Elec. Light Co. v. Kenan, 30 S.W. 868, 868 (Tex. 1895) ("The powers which the legislature may require [the commissioners court] to exercise are confined by [article V, section 18] to county business[] . . . ."). Political subdivisions of the State "possess only such powers and privileges as have been expressly or impliedly conferred upon them," and "[t]he authority vested in Texas counties—and county officials—is [therefore] limited." State v. Hollins, 620 S.W.3d 400, 406 (Tex. 2020) (per curiam) (quoting Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 430 (Tex. 2016)). As such, "the legal basis for any action taken [by a commissioners court] must be grounded ultimately in the constitution or statutes." Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993); see also Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941).

Lack of General County Police Power

You first assert that "[t]he matter addressed by the August 25, 2022, Modification Order is one affecting the public interest." Request Letter at 4. As you observe, courts have recognized that the powers and duties given to commissioners courts "include aspects of legislative, executive, administrative, and judicial functions." See, e.g., Henry v. Cox, 520 S.W.3d 28, 36 (Tex. 2017) (quoting Ector Cnty. v. Stringer, 843 S.W.2d 477, 478 (Tex. 1992)); see also Request Letter at 5. You suggest that the general power and duties of the commissioners court are thus broad enough to authorize the adoption of the modifying order, adding that "[m]unicipalities are given the power to adopt such rules/orders." Request Letter at 5.

We disagree. To be sure, it is true that the state government generally possesses authority "to promote the public convenience or the general prosperity[] [and] promote the public health, the public morals, or the public safety." Lombardo v. City of Dallas, 73 S.W.2d 475, 479 (Tex. 1934). But a "commissioners court has no general police power, such as that possessed by the State and by the many municipalities under the law." Upton Cnty. v. Brown, 960 S.W.2d 808, 818 (Tex. App.—El Paso 1997, no pet.) (citing Travis Cnty. v. Colunga, 753 S.W.2d 716, 720 (Tex. App.—Austin 1988, writ denied)); accord Comm'rs Ct. of Harris Cnty. v. Kaiser, 23 S.W.2d 840, 841 (Tex. App.—Galveston 1929, writ ref'd); see also, e.g., TEX. LOC. GOV'T CODE § 51.001(1) (providing municipalities with express authority to "adopt[] . . . an ordinance, rule, or police regulation that[] . . . is for . . . good government, peace, or order"). As previously explained, "the legal basis for any action taken [by a commissioners court] must be grounded ultimately in the constitution or statutes." Guynes, 861 S.W.2d at 863; see also Canales, 214 S.W.2d at 453; Anderson, 152 S.W.2d at 1085.

Chapter 826 of the Health and Safety Code

You also suggest the Rabies Control Act of 1981 (the "Act") serves as a source of authority for the order underlying your inquiry. See Request Letter at 5–6. The Act establishes a statewide program to control and prevent the spread of rabies to persons through the vaccination, registration, restraint, and potential quarantine of dogs and cats. See generally TEX. HEALTH & SAFETY CODE §§ 826.001–.055. The executive commissioner of the Health and Human Services Commission "adopt[s] rules necessary to effectively administer" the Act which, along with the chapter itself, serve as "the minimum standards for rabies control." Id. §§ 826.011(b), .012. A commissioners court may adopt these minimum standards as its own, id. § 826.013, or it "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 [Chapter 826] and the department rules adopted" thereunder, id. § 826.014(a). Further, section 826.033 authorizes a commissioners court establishing a local rabies control program "adopt ordinances or rules under Section 826.014 . . . to require," among other things, that "each dog . . . be restrained by its owner." Id. § 826.033(a)(1); see also id. § 826.034 (making failures or refusals "to restrain" a Class C misdemeanor). You therefore contend that the ordinary meaning of "restrained" is not limited to being "leashed, penned, [or] confined" and can include county orders—like that here—requiring an owner to "restrain" excessive barking. Request Letter at 6.

Again, we disagree. Words not defined in a statute are given their plain meaning, read in context, and construed according to the rules of grammar and common usage. TEX. GOV'T CODE § 311.011(a). Courts generally consult dictionaries to determine an undefined term's common meaning. Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d 725, 735 (Tex. 2024); see also Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018). "If an undefined term has multiple common meanings, . . . [courts] will apply the definition most consistent with the context of the statutory scheme." Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405 (Tex. 2016). Courts also strive to interpret each term consistently in every part of the statute. Sunstate Equip. Co. v. Hegar, 601 S.W.3d 685, 690 (Tex. 2020). In addition to dictionaries, courts also "consider the term's usage in other statutes, court decisions, and similar authorities." Id. at 702 (quoting Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 35 (Tex. 2017)). Courts likewise "strive to give [a] provision a meaning that is in harmony with other related statutes." Rodriguez, 547 S.W.3d at 838. Ultimately, the "essential task in interpreting [a] statute is to carry out the Legislature's intent." Gilbert v. El Paso Cnty. Hosp. Dist., 38 S.W.3d 85, 89 (Tex. 2001).

To "restrain" means "to hold back from action; keep in check or under control," but it also means "to deprive of liberty, as by arrest or the like." RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1642 (2d unabridged ed. 1987); see also id. at 1108 (defining "liberty" as "freedom from captivity, confinement, or physical restraint"). This common understanding of "restrain" is confirmed by the Act's other references to restraint, which contemplate an animal's movement—suggesting a similar construction here. See Sunstate Equip., 601 S.W.3d at 690. For example, the Act's definition of "quarantine" refers to "strict confinement of an animal . . . under restraint by closed cage or paddock." TEX. HEALTH & SAFETY CODE § 826.002(9)(B) (emphasis added); compare, e.g., id. § 821.102(b) (prohibiting unlawful restraint), with id. § 821.101(7) (defining "restraint" to "mean[] a chain, rope, tether, leash, cable, or other device that attaches a dog to a stationary object or trolley system"). Texas courts have likewise described section 826.033 as a delegation of authority over "the restriction of roaming animals, such as dogs, to local governmental entities." Garza v. Ochoa, No. 13-20-00143-CV, 2021 WL 2231931, at 2–3 (Tex. App.—Corpus Christi-Edinburg June 3, 2021, no pet.) (mem. op.) (emphasis added); see also, e.g., Smith v. Doyle, No. A14-93-00316-CV, 1994 WL 88855, at 5 (Tex. App.—Houston [14th Dist.] Mar. 10, 1994, no writ) (emphasizing that the purpose of the Act "is to protect people from animal bites that might transfer rabies").

[Footnote 2: The county's 2009 order defines "restraint" in an identical manner. See BANDERA COUNTY, TEX., RABIES AND ANIMAL CONTROL ORDER § 1.33 (Apr. 9, 2009).]

At bottom, the Act's use of the term "restrained" plainly contemplates freedom of movement—not barking. We therefore conclude that the Act does not countenance the orders referenced in your request.

County Authority to Remedy Nuisances

Your letter closes by noting that the recent modification order "is an effort on the part of [the] [c]ommissioners [c]ourt to remedy a public nuisance." Request Letter at 6. But the fact that the county's authority to adopt the 2009 order "has not been challenged," id. at 2, does not change that the commissioners court cannot exercise authority it does not possess under either "the constitution or statutes," Guynes, 861 S.W.2d at 863; see also, e.g., Canales, 214 S.W.2d at 453.

The Act expressly cabins the commissioners court's authority to "adopt ordinances or rules under Section 826.014" by providing that "each stray dog or cat [may] be declared a public nuisance." TEX. HEALTH & SAFETY CODE § 826.033(a)(2) (emphasis added). Neither does the county's general authority to abate public nuisances extend to barking dogs. Id. § 343.011(c) (defining "public nuisance"). Unlike municipalities, the Legislature has not vested commissioners courts with the authority to "define and declare what constitutes a nuisance." Cf. TEX. LOC. GOV'T CODE § 217.002(2) (granting this authority to municipalities). Suffice it to say the commissioners court cannot expand the definition of "nuisance" without coordinate statutory or constitutional authority. See Guynes, 861 S.W.2d at 863; see also, e.g., Canales, 214 S.W.2d at 453.

S U M M A R Y

A county commissioners court does not possess authority to enact an order penalizing a dog owner for a "public nuisance" due to the dog's excessive barking where, as here, no statute confers such authority to the commissioners court.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

JOSHUA C. FIVESON
Chair, Opinion Committee