Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director// Ellen Jefferson, D.V.M. v. Ellen Jefferson, D.V.M.// Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director

ACCEPTED

03-14-00774-CV

6707027

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/28/2015 3:45:25 PM

JEFFREY D. KYLE

CLERK

No. 03-14-00774-CV

RECEIVED IN

3rd COURT OF APPEALS

IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS

DISTRICT

8/28/2015 3:45:25 PM

OF TEXAS AT AUSTIN

JEFFREY D. KYLE

Clerk

ELLEN JEFFERSON, D.V.M.

Appellant,

vs.

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS

AND NICOLE ORIA, IN HER OFFICIAL CAP A CITY AS EXECUTIVE

DIRECTOR,

Appellees.

On Appeal from the 250 Judicial District Court

Of Travis County, Texas

AMICUS CURIAE BRIEF ON BEHALF OF

BEST FRIENDS ANIMAL SOCIETY ·

MARTHA DICKIE

State Bar No. 00000081

mdickie@abdlawfinn.com ,

JACOB SCHEICK

State Bar No. 24060563

j scheick@abdlawfirm.com

Almanza, Blackbum & Dickie, LLP

2301 S. Capital of Texas Hwy., Bldg. H

Austin, Texas 78746

(512) 474-9486

(512) 478-7151 - Fax

COUNSEL FOR AMICUS CURIAE

BEST FRIENDS ANIMAL SOCIETY

TABLE OF CONTENTS

INDEX OF AUTHORJTIES .................................................................................... iii

INTEREST OF AMICUS CURAIE

A. Amicus Curiae Interest ............................................................................... 1

B. Statement of Funding of Brief.. .................................................................. 1

STATEMENT OF THE CASE ................................................................................ 3

STATEMENT OF ISSUES ...................................................................................... 3

STATEMENT OF FACTS ....................................................................................... 3

SUMMARY OF THE ARGUMENT ....................................................................... 4

ARGUMENT ........................................................................................................... 5

I. Veterinary Licensing Act Does Not Govern Owners ............................ 5

A. The Veterinary Licensing Act Intent to Safeguard Property Right ......... 5

. .

B. The Board's Rules Do Not Permit Regulation of Owners- Even

Veterinarian Owners ................................................................................. 8

C. Protection of Animals Themselves is Vested in the Texas Board of

Health ........................................................................... , ......................... 11

II. If unchecked, the Board's Actions Will Result in More Euthanized

Animals .............................................................................................. ........... 13

CONCLUSION AND PRAYER ............................................................................. 14

CERTIFICATE OF SERVICE ................................................................................ 16

CERTIFICATE OF COMPLIANCE ...................................................................... 17

APPENDIX ............................................................................................................. 18

11

INDEX OF AUTHORITIES

Cases

Hoog v. State, 87 S.W.3d 740, 744 (Tex. App.-San Antonio 2002, pet. denied) 12

Pistole v. State, 68 Tex. Crim. 127, 130, 150 S.W. 618, 620 ................. .. ................ 6

Strickland v. Medlen, 397 S.W.3d 184, 192 (Tex. 2013) ..................................... 6,11

Texas Bd. of Chiropractic Examiners v. Texas Med. Ass'n, 375 S.W.3d 464, 474

(Tex. App.-Austin 2012, pet. filed) ................................................................ 8,10

Texas Board of Veterinary Medical Examiners, Petitioner v. Melanie Mercer,

D. VM 2013 WL 1785492 .......................................................................... ......... 10

Statutes

2013 WL l 785492 ................................................................................................... 10

22 Tex. Admin. Code § 571.61 ............................................................................... 11

22 Tex. Admin. Code§ 573.6 ...................................................................... :............ 9

22 Tex. Admin. Code§ 573.7 ................................................................................... 9

Tex. Health & Safety Code Ann. § 826.016 (Vernon) ............................................ 12

Tex. Occ. Code Ann.§ 801.001 (Vernon) ............................................................. 6,7

111

Rules

Texas Rule of Appellate Procedure 11 (c) ................................................................. 1

Veterinary Board Rule 571.61 ........................................................................... 10, 11

Veterinary Board Rule 573.72 ............................................................................. 9, 10

IV

INTEREST OF AMICUS CURIAE

A. Amicus Curiae Interest

Pursuant to Texas Rule of Appellate Procedure 11 (b ), this is an Amicus

Curiae Brief on behalf of Best Friends Animal Society ("Best Friends"), a national

nonprofit animal welfare organization and leader in the no-kill movement whose

focus is ending the killing of dogs and cats in America's shelters.

Best Friends offers this brief in opposition to the Texas Board of Veterinary

Medical Examiners' (the "Board") illegal ultra vires enforcement actions against

Ellen Jefferson, D.V.M., as an employee/volunteer of San Antonio Pets Alive!, a

non-profit corporation ("SAPA!"), that threatens to upset the regulatory structure

established by the Texas Legislature. Though the Board is attempting to expand its

authority to governing animal welfare, the Board's actions will have the real world

consequences of debilitating no-kill shelters, resulting in an exponential increase in

the euthanasia of dogs and cats in Texas. Best Friends has an interest in ensuring

Texas no-kill shelters continue and in preserving the welfare of animals who would

be unnecessarily killed as a result of the Board's actions.

B. Statement of Funding of Brief

Pursuant to Texas Rule of Appellate Procedure 11 (c), the undersigned

counsel hereby represent the following:

1

(1) None of the counsel for the parties in this case authored this brief in

whole or in part;

(2) Neither any party nor any party's counsel contributed money to fund

the preparation or submittal of this brief; and

(3) No other person contributed money that was intended to fund the

preparation or submittal of this brief.

2

STATEMENT OF THE CASE

Best Friends adopts the Statement of the Case as set forth by Ellen Jefferson,

D.V.M., in her Brief of Appellant and incorporates it by reference as if set forth

fully herein.

ISSUES PRESENTED

I. The Board seeks to extend its jurisdiction beyond the statutory confines

created by the Texas Legislature and seeks to usurp the animal welfare

responsibilities that the Legislature delegated to the Texas Board of Health and

that, in turn, were ceded to elected officials in Texas cities.

II. Shelters across Texas, including no-kill shelters, have relied upon and

evolved under the regulatory scheme created by the Texas Legislature. The

Board's ultra vires action has the real world consequences of debilitating no-kill

shelters, resulting in an exponential increase in the euthanasia of dogs and cats in

Texas.

STATEMENT 01' FACTS

Best Friends adopts the Statement of Facts as set forth by Ellen Jefferson,

D.V.M., in her Brief of Appellant and incorporates it by reference as if set forth

fully herein.

3

SUMMARY OF THE ARGUMENT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

This is an Amicus Curiae Brief on behalf of Best Friends Animal Society

("Best Friends"), a national nonprofit animal welfare organization and leader in the

no-kill movement whose focus is ending the killing of dogs and cats in America's

shelters.

Best Friends offers this brief in opposition to the Texas Board of Veterinary

Medical Examiners' (the "Board") illegal ultra vires enforcement actions against

Ellen Jefferson, D.V.M., as an employee/volunteer of San Antonio Pets Alive!, a

non-profit corporation ("SAP A!"), that threatens to upset the regulatory structure

established by the Texas Legislature. Shelters across Texas, including no-kill

shelters, have relied upon and evolved under the regulatory scheme created by the

Texas Legislature. The Board seeks to extend its jurisdiction beyond the statutory

confines created by the Texas Legislature and seeks to usurp the animal welfare

responsibilities that the Legislature delegated to the Texas Board of Health and

that, in turn, were ceded to elected officials in Texas cities. Moreover, the Board's

actions not only violate the unambiguous statutory language, but also the rules

promulgated by the Board itself. The Board's overreach unlawfully attempts to

expand its express purpose to license veterinarians to the regulation of animal

4

welfare, which duty the Legislature specifically reserved first to the discretion of

animal owners and second to the Texas Board of Health and municipalities.

Ironically, though the Board is attempting to expand its authority to

gove1ning animal welfare, the Board's actions will have the real world

consequences of debilitating no-kill shelters, resulting in an exponential increase in

the euthanasia of dogs and cats in Texas.

ARGUMENT

I. Veterinary Licensing Act Does Not Govern Owners

Through its unfettered prosecution of Dr. Jefferson, the Board extends its

authority well beyond gove1ning veterinarians to intruding on how an owner may

choose to care for its property. Not only do these actions run against the express

legislative purpose of the Veterinary Licensing Act that created the Board, the

Board's actions run against the very intent of the rules promulgated by the Board

itself.

-~ A. The Veterinary Licensing Act Intent to Safeguard Property

Rights

The Veterinary Licensing Act:

"was enacted by the Thirty-Second Legislature in 1911, and approved

on March 16, 1911 (pages 132 to 136). The object and purpose of the

act is clearly manifest on its face, wherein in section 17 it is said:

"The fact that there is no law governing veterinaries within this state,

and unskilled persons are engaged in that business to the injury and

detriment of the interests and material welfare of the people, create an

emergency and an imperative public necessity requiring that the

5

constitutional rule requiring bills to be read on three several days be

suspended, and the same is hereby suspended, and this act shall take

effect and be in force from and after its passage; be it so enacted."

Pistole v. State, 68 Tex. Crim. 127, 130, 150 S.W. 618, 620 (Tex. Crim. App.

1912). The purpose of the Veterinary Licensing Act was to regulate "veterinaries

within this state, and unskilled persons . . . engaged in that business to the injury

and detriment of the interests and material welfare of the people .... " In this

context, "the interests and material welfare of the people" is the people's material

property, their animals. The concept of dogs as prope1iy is well settled in Texas.

Indeed, the Texas Supreme Court recently re-emphasized this point of law, while

acknowledging the uniqueness of this personal prope1iy:

We do not dispute that dogs are a special form of personal property.

That is precisely why Texas law forbids animal cruelty generally

(both civilly and criminally), and bans dog fighting and unlawful

\. . restraints of dogs specifically-because animals, though prope1iy, are

umque.

Stricklandv. Medlen, 397 S.W.3d 184, 192 (Tex. 2013).

In light of the express purpose of the Veterinary Licensing Act to protect the _,

prope1iy-"the material interests"-of the people, the Board's attempt to side step

the Veterinary Licensing Act's expressly limited authority over owner's rights to

their prope1iy is paiiicularly egregious. Section 801.001 of the Texas Occupation

Code indicates that "This chapter may be cited as the Veterinary Licensing Act."

6

Tex. Occ. Code Ann. § 801.001 (Ve1non). Section 801.004(1) of the Veterinary

Licensing Act, entitled "Application of Chapter," provides:

This chapter does not apply to:

(1) the treatment or care of an animal in any manner by the owner of

the animal, an employee of the owner, or a designated caretaker

of the animal, unless the ownership, employment, or designation

is established with the intent to violate this chapter ....

Id. In the context of this legislative intent to protect the people's property interests,

the purpose and reasoning behind Section 801.004(1) becomes absolutely evident.

Since the purpose of the Veterinary Licensing Act is to protect people's property

interests, the Veterinary Licensing Act reserves to the people, not the Board, the

right to choose the manner that the owner desires to treat or care for its animal

property. Contrary to the legislative intent to protect property interests, the

Board's persecution attempts to divest SAPA! and other animal owners across

Texas of their right to treat or care for their animal property in the way they see fit.

The Board's actions seek to prohibit owners like SAPA! from choosing

\

progressive lifesaving options for the animals they own and from choosing cost-

effective ways to care for large populations of shelter and foster animals that

SAPA! owns. Despite the express limitations in the Section 801.004(1) of the

Veterinary Licensing Act, the Board is trying to commandeer owners' rights in

their property.

7

B. The Board's Rules Do Not Permit Regulation of Owners-

Even Veterinarian Owners

An administrative body can only promulgate rules within the limits of the

powers expressly granted to it by the Legislature. See Texas Bd. of Chiropractic

Examiners v. Texas Med. Ass'n, 375 S.W.3d 464, 474 (Tex. App.-Austin 2012,

pet. filed) (providing rubric for examining whether administrative rules are within

statutory authority). Importantly, no deference is given to an agency's

interpretation of its own statutory authority when the statute in question is

unambiguous. Texas Bd. of Chiropractic Examiners, 375 S.W.3d at 475.

Accordingly, the Board has clearly overstepped its statutory authority in its attempt

to regulate Dr. Jefferson in her capacity as an employee/volunteer of an owner,

SAP A!, despite the statutory restrictions enacted by the Legislature in Section

801.004(1) of the Veterinary Licensing Act. Neve1iheless, assuming arguendo that

the Board had authority to regulate SAPA!, the Veterinary Board's own rules do

not permit regulation of Dr. Jefferson as an employee /volunteer of SAP A! because

(i) the express intent of the Board's rules and (ii) the legal construction of the

Board's rules as a whole undeniably indicate that a veterinarian-owner and/or a

veterinarian employee/volunteer of an owner treating the owner's prope1iy is

outside the jurisdiction of the Board.

Contrary to Section 801.004(1) of the Veterinary Licensing Act, the Board

contends that pursuant to a rule it promulgated that it can prosecute Dr. Jefferson

8

no matter if she is an employee of the animal's owner. Rule 573.72 of the

Veterinary Board, entitled "Employment by Nonprofit or Municipal Corporations"

provides:

(a) A nonprofit or municipal corporation may employ or

contract with a veterinarian to provide veterinary services in

connection with sheltering, sterilization, vaccination, or other medical

care and treatment of animals.

(b) Employment by or contractual service to a nonprofit or

municipal corporation does not exempt the veterinarian from any of

the provisions of the Veterinary Licensing Act or the Board's rules.

(c) Veterinarians employed by, or contracted to, nonprofit or

municipal corporations shall be liable for any violations of the Act or

rules occurring as a result of the practice of veterinary medicine or

any veterinary services provided by the nonprofit or municipal

corporation, including those occurring due to the acts or omissions of

non-licensed employees of, or volunteers for, the nonprofit or

municipal corporation.

22 Tex. Admin. Code § 573.72. However, this Rule must be read in conjunction ,

\ ' \ ~

with the prohibition of veterinarians, like lawyers, from creating a business

partnership with non-veterinarians. See 22 Tex. Admin. Code § 573 .6 (entitled

"Restriction of Paiinerships to Members of Veterinary Profession"). In this

context, the intent expressed in the Board's adoption of§ 573.72 becomes clear:

"The Board adopts new §573.72, regarding Employment by Nonprofit or

Municipal Corporations, which allows veterinarians to work for non-profits even

when the non-profit is not owned by a licensed veterinarian." 2012 TX REG

TEXT 282800 (NS), 2012 TX REG TEXT 282800 (NS). Rule 573.72 was not

9

adopted as an ultra vires expansion of the Board's authority, as the Board now

contends. Instead, the provision was adopted to clarify that a veterinarian could

work for a non-profit that offers low-cost treatment for other peoples' animals,

even if that non-profit was not solely owned by veterinarians. See e.g., Texas

Board of Veterinary Medical Examiners, Petitioner v. Melanie Mercer, D. VM,

Respondent, 2013 WL 1785492, *13 (TX. St. Off. Admin. Hrgs.) (applying Rule

573.72 in the context of a veterinarian employed by a non-profit animal clinic that

provided veterinary services to the general public, not to animals owned by the

non-profit). Contrary to the Board's contention, Rule 573.72 was not intended to

and does not expand the Board's power to regulate the treatment of an animal by

an animal's owner.

The rules, of statutory construction, which also apply t? interpretation of

administrative rules, also demonstrate that Rule 573. 72 cannot be constructed to

expand the Veterinary Board's powers beyond the scope of Section 801.004 of the

Occupations CodeN eterinary Licensing Act. Texas Bd. of Chiropractic

Examiners, 375 S.W.3d at 475 ("We construe administrative rules in the same

manner as statutes .... ") Veterinary Board Rule 571.61, governing "Inactive

Veterinary License Status," provides:

(b) Restrictions. The following restrictions shall apply to veterinary

licensees whose licenses are on inactive status:

10

(1) Except as provided in § 801.004, Texas Occupations Code, the

licensee may not engage in the practice of veterinary medicine or

otherwise provide treatment to any animal in the State of Texas.

22 Tex. Admin. Code § 571.61. In accordance to Veterinary Board Rule

571.61(b)(l), an inactive veterinarian can "engage in the practice of veterinary

medicine or otherwise provide treatment to any animal in the State of Texas"

provided such practice/treatment is within the owner exceptions in Section 801.004

of the Veterinary Licensing Act. It strains credulity to argue, as the Board does,

that an active veterinarian, such as Dr. Jefferson, cannot offer treatment within the

same owner-exceptions to the Veterinary Licensing Act that permits an inactive

veterinarian to treat animals.

C. Protection of Animals Themselves is Vested in the Texas Board

of Health

Of course, the Legislature did not leave the welfare of the animals

um·egulated. Instead, "as a special kind of property" animals are protected from

the mistreatment of their owners under the Texas Health and Safety Code, which

delegates rule making authority to the Texas Board of Health and the Texas

Department of Health, not the Veterinaiy Board. Strickland, 397 S.W.3d at 198

(Tex. 2013); Tex. Health & Safety Code§§ 821.021-.026. The interrelationship of

the Veterinary Licensing Act, particularly Section 801.004(1), and the provisions

of the Texas Health and Safety Code governing animal welfare requires that an

owner can choose to treat its animal in the manner the owner deems appropriate,

11

with limited restrictions regulated in accordance with the Texas Health and Safety

Code to protect the animal's welfare. As "unique property" an owner may not do

anything it pleases with an animal pursuant to animal welfare restrictions, but

neither a veterinarian nor the Board can force an owner to care for its prope1iy in a

specified manner.

Moreover, this division of power is required under the concepts of statutory

const1uction: "The goal of statutory construction is to give effect to legislative

intent. Unless a statute is ambiguous, we discern that intent from the language of

the statute itself. Further, we consider a statute as a whole, not its provisions in

isolation." Hoag v. State, 87 S.W.3d 740, 744 (Tex. App.-San Antonio 2002, pet.

denied).

When read in conjunc.tion, as required by the rules of statutory construction,

the boundaries of the Veterinary Licensing Act and the Health and Safety Code's

animal welfare provisions becomes clear: the Veterinary Licensing Act does not

regulate an owner's treatment of his/her animal property and the Health and Safety

Code does. Accordingly, the Health and Safety Code permits cities, such as San

Antonio, "to enter into contracts or agreements with public or private entities" to

carry out the animal welfare provisions of the Code. Tex. Health & Safety Code

Ann. § 826.016 (Vernon). Moreover, any appeals regarding cruelty to animals are

expressly gove1ned by the Health and Safety Code: "In the event of a conflict

12

between this subchapter and another provision of any other law relating to an

appeal of a disposition regarding a cruelly treated animal, including the bond

required for that appeal, this subchapter controls." Tex. Health & Safety Code

Ann. § 821.026 (Vernon).

II. If Unchecked, the Board's Actions Will Result m More

Euthanized Animals

As set forth in more detail in the amicus brief of Alley Cat Allies filed in the

district court and incorporated herein by reference, care of animals in the no-kill

model differs substantially from care of animals in the traditional capture and

euthanize model. Unlike traditional shelters, which hold animals for the minimum

required "stray hold" period before euthanizing them, no kill shelters have to invest

in the long term health of the animals. Accordingly, no kill shelters have to care

for animals·: for longer periods, which leads to caring for more animals at any one

time than the traditional capture and euthanize model. Therefore, shelter space is

one of the primary challenges to no kill shelters, and as a result, no kill

organizations often house animals in foster homes until the animals are adopted by

new owners. Because of the sheer number of animals and the far flung distance

between foster homes, no-kill shelter-owners cannot provide one-on-one veterinary

care to all their animals-not that traditional capture and euthanize shelters ever

did or even had any incentive to do so. However, under the Legislature's mandate,

animal owners do not have to provide veterinary care to their animals, as long as

13

owners treat their animals humanely. Without the owner exception, no-kill shelters

who employ a veterinarian 1 would have to provide one-on-one veterinary care to

each animal that they own, even though no other owners of animals are required

under the Veterinary Licensing Act to even seek the aid of a veterinarian. Such

change in the policy would debilitate no-kill shelters. Again, this does not mean

that no kill shelters can be inhumane to the animals they own-all animal owners

are required to treat their animal humanely pursuant to the Health and Safety Code.

CONCLUSION AND PRAYER

Best Friends supports animal owners like SAP A! that, as owners, choose to

value the life of each of their animals by tirelessly working to reduce animal

shelter euthanasia. As part of its ownership rights, SAP A! responsibly cares for its

animals through a network of foster homes and shelter facilities. Pursuant to the

legislative intent of the Veterinary Licensing Act and the Health and Safety Code,

absent a finding by municipalities with actual authority to regulate animal welfare

pursuant to the Health and Safety Code , SAP A!' s judgment regarding the care of

its animal property is within SAP A! 's sole discretion.

1

The Board fails to recognize the legal distinction between SAPA! as a legal entity and owner of animal property

and Dr. Jefferson, who is an employee, volunteer, and agent of the entity- who also happens to be a veterinarian.

14

Respectfully submitted,

.~'},,

/f{/l --

Martha Dickie

State Bar No. 00000081

mdickie@abdlawfirm.com

Jacob Scheick

State Bar No. 24060563

j scheick@abdlawfi1m.com

Almanza, Blackbum & Dickie, LLP

2301 S. Capital of Texas Hwy., Bldg. H

Austin, Texas 78746

(512) 474-9486

(512) 478-7151-Fax

COUNSEL FOR AMICUS CURIAE

BEST FRIENDS ANIMAL SOCIETY

15

CERTIFICATE OF SERVICE

I hereby ce1iify that on August 28, 2015, a true and conect copy of the

foregoing was served via email in accordance with the Texas Rules of Civil

Procedure, upon the following:

Ryan Clinton

State Bar No. 24027934

rdclinton@dgclaw.com

DAVIS, GERALD & CREMER, P.C.

111 Congress Ave., Suite 1660

Austin, Texas 78701

Ph: (512) 537-9938

Fax: (432) 687-1735

David F. Brown

State Bar No. 03108700

dbrown@ebblaw.com

David P. Blanke

State Bar No. 02453600

dblanke@ebblaw.com

Ewell, Brown & Blanke, LLP

111 Congress Ave., 28th Floor

Austin, Texas 78701

(512) 457-0233

Andrew Lutostanski

andrew.lutostanski@texasattorneygeneral.gov

Ted A. Ross

ted.ross@texasattorneygeneral.gov

Andrew Lutostanski

andrew.lutostanski@texasattmneygeneral.gov

Office of the Attorney General of Texas,

Administrative Law Division

P. 0. Box 12548

Austin, TX 78711

(512) 475-4200

16

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this brief contains 3,007 words (excluding the caption, table of contents, table of

authorities, signature, proof of service, and ce1iificate of compliance). This is a

computer-generated document created in Microsoft Word, using 14-point typeface

for all text, except for footnotes, which are in 12-point typeface. In making this

ce1iificate of compliance, I am relying on the word count provided by the software

used to prepare the document.

17

APPENDIX

1. Hoag v. State, 87 S.W.3d 740, 744 (Tex. App.-San Antonio 2002, pet.

denied)

2. Pistole v. State, 68 Tex. Crim. 127, 130, 150 S.W. 618, 620

3. Strickland v. Medlen, 397 S.W.3d 184, 192 (Tex. 2013)

4. Texas Bd. of Chiropractic Examiners v. Texas Med. Ass'n, 375 S.W.3d 464,

474 (Tex. App.-Austin 2012, pet. filed)

5. Texas Board of Veterinary Medical Examiners, Petitioner v. Melanie

Mercer, D. VM 2013 WL 1785492

6. 2013 WL 1785492

7. 22 Tex. Admin. Code § 571.61

8. 22 Tex. Admin. Code§ 573.6

9. 22 Tex. Admin. Code§ 573.7

10.Tex. Health & Safety Code Ann.§ 826.016

11.Tex. Occ. Code

..

Ann. § 801.001

12.Texas Rule of Appellate Procedure 1 l(c)

13.Veterinary Board Rule 571.61

14.Veterinary Board Rule 573.72

18

APPENDIX 1

Hoog v. State, 87 S.W.3d 740 (2002)

87 S.W.3d 740

Court of Appeals of Texas,

San Antonio.

Charles T. HOOG, Appellant,

v.

The STATE of Texas, Appellee.

No. 04–01–00239–CV. | Aug. 28, 2002.

Under warrant, the state seized cattle on allegation that they were being cruelly treated. The Justice Court, Frio County, ordered

sale. Caretaker of cattle appealed. The County Court, Frio County, David Peeples, J. (Assigned), affirmed, and caretaker

appealed. The Court of Appeals, Angelini, J., held that: (1) county court could order sale during pendency of appeal, and (2)

forfeiture was invalid, as caretaker was not owner.

Vacated and dismissed.

West Headnotes (8)

[1] Forfeitures Substitute assets

Forfeitures Jurisdiction and authority

Court of Appeals had jurisdiction over appeal of cattle forfeiture case, although cattle had been sold; proceeds of the

sale were a substitute res that gave the Court jurisdiction.

Cases that cite this headnote

[2] Forfeitures Proceedings and review

Trial court could order sale of forfeited cattle during pendency of caretaker's appeal to the Court of Appeals; statute

barring sale applied only to appeals from justice court to county court. V.T.C.A., Health & Safety Code § 821.025(b).

Cases that cite this headnote

[3] Statutes Intent

The goal of statutory construction is to give effect to legislative intent.

Cases that cite this headnote

[4] Statutes Language and intent, will, purpose, or policy

Statutes In general; factors considered

Unless a statute is ambiguous, a court discerns the intent of the legislature from the language of the statute itself.

Cases that cite this headnote

[5] Statutes Statute as a Whole; Relation of Parts to Whole and to One Another

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Hoog v. State, 87 S.W.3d 740 (2002)

A court considers a statute as a whole, not its provisions in isolation.

Cases that cite this headnote

[6] Forfeitures Preservation of error; plain error

Caretaker of cattle waived for appeal his claim of lack of notice of forfeiture hearing, where he failed to timely object

to lack of notice, failed to move for continuance, and fully participated in hearing. V.T.C.A., Health & Safety Code

§ 821.023.

2 Cases that cite this headnote

[7] Animals Searches, seizures, inspections and forfeitures

Forfeitures Particular cases

Evidence did not support seizure and sale of cattle from caretaker, on the basis of cruelty; evidence showed that

caretaker was not owner. V.T.C.A., Health & Safety Code §§ 821.021, 821.023.

Cases that cite this headnote

[8] Robbery Property subject of robbery and ownership and possession thereof

In criminal law, a “special owner” is an individual, such as an employee, who is in care, custody, or control of

the property belonging to another person or a corporation; this legal fiction is created so that a store employee has

sufficient interest in property taken during the course of a robbery to qualify as an owner of the property under the

robbery statute.

Cases that cite this headnote

*741 From the County Court, Frio County, Texas, Trial Court No. 2421; David Peeples, Judge Presiding. 1

Attorneys and Law Firms

Roberto Maldonado, Law Office of Roberto Maldonado, San Antonio, for appellant.

Grady L. Roberts, Jr., Law Office of Grady L. Roberts, Jr., Hector M. Lozano, County Attorney, Pearsall, for appellee.

Sitting: ALMA L. LÓPEZ, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.

Opinion

Opinion by KAREN ANGELINI, Justice.

The State of Texas seized seventy-three head of cattle under chapter 821 of the Texas Health and Safety Code, alleging that

Charles T. Hoog had cruelly treated the cattle. The county court found that Hoog had cruelly treated the cattle and ordered their

sale at auction. Hoog appeals. We vacate the judgment of the trial court and dismiss the cause.

BACKGROUND

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Hoog v. State, 87 S.W.3d 740 (2002)

The State seized seventy-three head of cattle, alleging in the warrant that Charles Hoog, their owner, had cruelly treated the

animals. The cattle were placed in a feedlot. Castroville State Bank filed an answer, alleging that the cattle were owned by

Thomas Hoog, Charles's father, and that the bank possessed the first lien on the cattle. On June 9, 2000, a justice of the peace

held a hearing at which Charles Hoog appeared pro se. The court found that both Charles and Thomas Hoog had cruelly treated

farm livestock under section 821.021 and 821.023 of Texas Health and Safety Code. The justice court ordered both Charles and

Thomas Hoog to be divested of ownership and ordered a public *742 sale of the cattle. 2 Charles Hoog appealed the justice

court's decision to the county court.

In the county court, Frio County 3 filed an application to sell the cattle at public auction. On December 28, 2000 and January 2,

2001, the county court held a hearing at which Charles Hoog, again, appeared pro se. On January 2nd, the county court approved

the stipulation between “parties, Frio County and Charles T. Hoog,” and “non-parties, Castroville State Bank and Thomas

V. Hoog ” that Thomas Hoog had legal title to the cattle. The county court then found that Charles Hoog had cruelly treated

the cattle and ordered the cattle to be sold at public auction on January 10, 2001. On January 10th, Hoog filed an application

for temporary restraining order, temporary injunction, and permanent injunction. The county court denied his application, and

the cattle were sold at auction for a total of $67,900.22. On February 28, 2001, the county court entered a final judgment.

The judgment ordered expenses from the sale and from the feeding and maintaining of the cattle be deducted from the sale's

proceeds. After expenses, the county court ordered $15,820.82 to be paid to Thomas V. Hoog and Castroville State Bank.

MOTION TO DISMISS

[1] Frio County argues that we do not have jurisdiction over this appeal pursuant to Costello v. State, 774 S.W.2d 722

(Tex.App.-Corpus Christi 1989, writ denied). In Costello, the court of appeals decided whether it had jurisdiction after the res

in dispute had been sold, retitled, or was no longer within the appellate court's control. Id. at 723. The court noted that “there

are several federal decisions dealing with an appellate court's jurisdiction in an in rem proceeding after the res has been sold

or dispersed” and that those cases required the claimant to “obtain a stay of execution of the trial court's judgment to prevent

removal of the res from the control of the court and to preserve jurisdiction for appeal.” Id. at 723–24. “Otherwise, the release

or removal of the res from the control of the court will terminate jurisdiction, unless the res is released accidently, fraudulently,

or improperly.” Id. at 724 (citing United States v. $79, 000, 801 F.2d 738, 739 (5th Cir.1986)).

Since Costello, however, the Supreme Court has held that an appellate court may still have jurisdiction despite the res having

been sold, retitled, or no longer being within the appellate court's control. In Republic National Bank v. United States, 506 U.S.

80, 82, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992) (Blackmun, J.), 4 the government seized a house that had been purchased with

the proceeds of narcotics trafficking. After a trial on the merits, the district court ordered the proceeds of the sale of the house

forfeited to the government, which deposited the funds in the U.S. Treasury. Id. at 83, 113 S.Ct. 554. Republic National Bank

claimed a lien on the funds and appealed. Id. The appellate court dismissed the appeal for lack of jurisdiction, noting that the

transfer of the res destroyed jurisdiction. Id.

*743 The Supreme Court reversed, holding that “in an in rem forfeiture action, the Court of Appeals is not divested of

jurisdiction by the prevailing party's transfer of the res from the district.” Id. at 88–89, 113 S.Ct. 554. The Court rejected the

government's argument that the transfer of the sale proceeds from the district court to the U.S. Treasury destroyed jurisdiction,

because the appellate court no longer had control over the res:

The rule invoked by the Government thus does not exist, and we see no reason why it should. The fictions of in rem forfeiture

were developed primarily to expand the reach of the courts and to furnish remedies for aggrieved parties, not to provide a

prevailing party with a means of defeating its adversary's claim for redress. Of course, if a “defendant ship stealthily absconds

from port and leaves the plaintiff with no res from which to collect,” a court might determine that a judgment would be

“useless.” So, too, if a plaintiff abandons a seizure, a court will not proceed to adjudicate the case. These exceptions, however,

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Hoog v. State, 87 S.W.3d 740 (2002)

are closely related to the traditional, theoretical concerns of jurisdiction: enforceability of judgments and fairness of notice

to parties. Neither interest depends absolutely upon the continuous presence of the res in the district.

Id. at 87, 113 S.Ct. 554 (citations omitted). The useless judgment exception did not apply in Republic National, because “the

government had possession of the specific ‘substitute res'—the sale proceeds—and an appropriations statute ‘authoriz[ed] the

payment of funds in the event petitioner were to prevail in the underlying forfeiture action.’ ” Newpark Shipbuilding & Repair,

Inc. v. M/V Trinton Brute, 2 F.3d 572, 573 (5th Cir.1993) (quoting Republic National, 506 U.S. at 96, 113 S.Ct. 554 (Rehnquist,

C.J.)). 5

Since Republic National, the Fifth Circuit decided a similar issue in Newpark Shipbuilding & Repair, Inc. v. M/V Trinton Brute,

2 F.3d 572, 573 (5th Cir.1993). Newpark brought an in rem action against a vessel owned by McKinney, seeking to recover for

past-due repairs it had performed on the vessel. The district court entered judgment in favor of Newpark and ordered the vessel

sold at a marshal's sale. Id. Newpark was the successful bidder at the sale and substituted its judgment in lieu of payment for the

vessel. Id. McKinney appealed. Id. Newpark moved to dismiss the appeal for lack of jurisdiction. The Fifth Circuit distinguished

Newpark from Republic National and dismissed the appeal, noting that the appeal fell within the “useless” judgment exception:

In this case, by contrast, there never was a substitute res. Newpark used its judgment to purchase the

[vessel]; no money changed hands as a result of the marshal's sale. Moreover, the vessel is no longer

the res; a marshal's sale discharges all liens against the ship and grants the purchaser title free and clear

of liens. Unlike the situation in Republic, we cannot trace the res or its proceeds to a particular fund in

Newpark's possession.

Id. at 573 (citations omitted).

Here, however, we do have a “substitute res,” the proceeds of the auction. Therefore, under Republic's analysis, we have

jurisdiction over this appeal despite the sale of the cattle. We deny Frio County's motion to dismiss.

*744 SALE OF CATTLE

[2] In his first issue, Hoog argues that section 821.025(b) of the Texas Health and Safety Code prohibited the trial court from

ordering the sale of the cattle during his appeal to this court. Section 821.025(b) provides that “[w]hile an appeal under this

section is pending, the animal may not be sold, destroyed, or given away as provided by Sections 821.022–821.024.” TEX.

HEALTH & SAFETY CODE ANN. § 821.025 (Vernon 1992). In its conclusions of law, the county court held that

section 821.025 of the Texas Health and Safety Code prohibits the sale of the cattle during the time this

case is on appeal from the Justice Court to the County Court but does not prevent the sale if the case is

appealed from the County Court to the Court of Appeals or the Supreme Court of Texas.

We agree.

[3] [4] [5] The goal of statutory construction is to give effect to legislative intent. Continental Cas. Co. v. Downs, 81 S.W.3d

803, 805 (Tex.2002); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000). Unless a statute is ambiguous, we discern that intent

from the language of the statute itself. Downs, 81 S.W.3d at 805. Further, we consider a statute as a whole, not its provisions in

isolation. Id.; Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). Section 821.022 allows an officer who has reason

to believe that an animal has been or is being cruelly treated to apply to a justice court 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 1992). On a showing of probable cause to believe that the animal has been or is being cruelly treated,

the justice or municipal court shall issue the warrant and set a time within ten days from the date of issuance for a hearing in

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Hoog v. State, 87 S.W.3d 740 (2002)

the court to determine whether the animal has been cruelly treated. Id. § 821.022(b). Section 821.023 describes what actions

the court may take after this hearing:

(e) If the court finds that the animal's owner has cruelly treated the animal and that the animal is farm livestock, the owner

shall be divested of ownership and the court shall order a public sale of the animal by auction, order the animal given to

a nonprofit animal shelter, pound, or society for the protection of animals, or order the animal humanely destroyed if the

court decides that the best interests of the animal or that the public health and safety would be served by doing so. In this

subsection, “farm livestock” means cattle, hogs, sheep, goats, mules, horses, jacks, jennets, or poultry raised or used on

a farm or ranch for food or for the production of legal income....

(g) The court shall order the animal returned to the owner if the court does not find that the animal's owner has cruelly treated

the animal.

Id. § 821.023(e), (g) (Vernon Supp.2002). Section 821.025 allows an “owner of an animal ordered sold at public auction as

provided in this subchapter” to appeal the order. Id. § 821.025 (Vernon 1992). The revisor's note to section 821.025 recognizes

that section 821.025 applies to an appeal from the justice court to the county court:

The source law provides procedures for appealing a justice court's order to sell an animal that has been

cruelly treated. The revised law omits the provision that requires the appellant to give notice of appeal

within 10 days because procedures for appeal from a justice court are provided by Rules 571–574, Texas

Rules of Civil Procedure. The rules also provide procedures for adjudging court costs, and therefore the

revised law *745 omits the provision in the source law authorizing the court to assess costs of the

hearing. (See Rules 139 and 141, Texas Rules of Civil Procedure.) The revised law also omits a provision

in the source law providing for appeals in county court because section 26.042(e), Government Code,

provides that the county court has appellate jurisdiction from the justice court in cases in which the

judgment appealed from or the amount in controversy exceeds $20, exclusive of costs.

Id. § 821.025 revisor's note (Vernon 1992) (emphasis added). The revisor's note makes clear that section 821.025 applies to an

appeal from the justice court to the county court. We, therefore, overrule Hoog's first issue.

NOTICE

[6] Hoog complains that he was given insufficient notice that the hearing on January 2, 2001 was a full evidentiary hearing

under section 821.023 of the Texas Health and Safety Code. Hoog, however, has waived this issue on appeal by failing to

timely object to lack of notice, by failing to move for a continuance, and by fully participating in the January 2nd hearing.

See Custom–Crete, Inc. v. K–Bar Services, Inc., 82 S.W.3d 655, 658–59 (Tex.App.-San Antonio 2002, no pet. h.) (noting that

three day notice requirement of setting of hearing under Texas Rule of Civil Procedure 21 may be waived by failure to object

to lack of notice); Prade v. Helm, 725 S.W.2d 525, 526 (Tex.App.-Dallas 1987, no writ) (to preserve complaint of untimely

notice under Rule 21, party must (1) object on specific grounds, or (2) move for continuance, and (3) obtain ruling); see also

Padilla v. Comm'n for Lawyer Discipline, 87 S.W.3d 624, 626 (Tex.App.-San Antonio 2002, no pet. h.) (emphasizing that error

resulting from trial court's failure to provide parties proper notice under Rule 245 is waived if party proceeds to trial and fails

to object to lack of notice); In re J.(B.B.)M., 955 S.W.2d 405, 408 (Tex.App.-San Antonio 1997, no pet.) (same). On January

2nd, Hoog asked the trial court whether the hearing was for the purpose of determining whether the cattle should be sold as

perishable property under rule 600 of the Texas Rules of Civil Procedure or whether it was a hearing under chapter 821 of

the Health and Safety Code. The trial court replied that the hearing was a proceeding under chapter 821. Hoog did not object

or move for a continuance. Instead, he fully participated in the hearing by cross-examining a witness and by calling his own

witness. We, therefore, overrule this issue.

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Hoog v. State, 87 S.W.3d 740 (2002)

LEGAL SUFFICIENCY

[7] Hoog argues that the evidence is legally insufficient, because there was no evidence that he was the owner of the cattle.

In fact, the evidence conclusively shows that Hoog is not the owner. The trial court approved a stipulation between the parties

that Thomas V. Hoog, not Charles Hoog, was the owner of the cattle:

It was stipulated by the parties, Frio County and Charles T. Hoog, together with non-parties, Castroville

State Bank and Thomas V. Hoog [that] ... 6. The cattle (152) head that are the subject of this lawsuit and

upon which a ruling will be made by this Court form a part of cattle that are cattle owned by Thomas V.

Hoog who has legal title to them, and form a part of the cattle that are subject to the lien of Castroville

State Bank, and upon which Castroville State Bank has a lien and is the lien holder for its indebtedness

owned by Thomas V. Hoog as reflected in the above named documents.

(emphasis added). Section 821.023 gives the trial court the authority to order the *746 sale of the cattle if it “finds that

the animal's owner has cruelly treated the animal.” See TEX. HEALTH & SAFETY CODE ANN. § 821.023(e) (Vernon

Supp.2002) (emphasis added). Here, the trial court found that Charles Hoog cruelly treated the cattle while at the same time,

approving the stipulation that Thomas Hoog was the owner of the cattle. There is, therefore, no finding by the trial court that

the owner, Thomas Hoog, cruelly treated the cattle. Moreover, Thomas Hoog is a non-party, having never been joined as a

defendant even after the State knew that he was the legal owner of the cattle.

[8] The State responds by arguing that Charles Hoog was the “special owner” of the cattle. In criminal law, a “special owner”

is an individual, such as an employee, who is in care, custody, or control of the property belonging to another person or a

corporation. Harrell v. State, 852 S.W.2d 521, 523 (Tex.Crim.App.1993); Liggens v. State, 50 S.W.3d 657, 660 (Tex.App.-

Fort Worth 2001, pet. ref'd). This legal fiction is created so that a store employee has sufficient interest in property taken during

the course of a robbery to qualify as an owner of the property under the robbery statute. See Liggens, 50 S.W.3d at 660. The

State requests that we expand this concept under criminal law to forfeiture cases in civil law. We decline to do so. Under the

State's interpretation of a “special owner,” the State could name an owner's employee in a warrant for seizure of an animal, and

then a trial court could order the sale of that animal at auction upon a finding that the owner's employee had cruelly treated

the animal, all without the animal's actual owner being named as a party to the forfeiture proceeding. The legislature could not

have intended such a result. We, thus, hold that the evidence was legally insufficient and sustain this issue. 6

CONCLUSION

Normally, upon a finding that the evidence was legally insufficient, we would reverse the judgment of the trial court and render

judgment accordingly. This appeal, however, presents an unusual situation, because the stipulated owner of the cattle is a non-

party. Therefore, because Charles Hoog is not the owner of the cattle, a forfeiture proceeding never should have been initiated

against him. We vacate the judgment of the trial court and dismiss the trial court cause against Charles Hoog.

All Citations

87 S.W.3d 740

Footnotes

1 Assigned to this case by the Chief Justice of the Supreme Court of Texas.

2 The justice court divested Thomas Hoog of ownership despite the warrant of seizure naming only Charles Hoog as the owner of

the cattle.

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Hoog v. State, 87 S.W.3d 740 (2002)

3 Prosecuting the forfeiture action on behalf of the State of Texas.

4 Justice Blackmun was joined by a majority of the Court with respect to Parts I, II, and IV of his opinion.

5 Chief Justice Rehnquist's concurred and dissented with Justice Blackmun's opinion, noting that he disagreed with Justice Blackmun's

Appropriations Clause analysis. Chief Justice Rehnquist's analysis was joined by Justices White, Scalia, Kennedy, Souter, and

Thomas. His Appropriations Clause analysis, thus, represents the majority of the Court.

6 By holding that the evidence was legally insufficient, we need not reach Hoog's argument that the evidence was also legally

insufficient because the trial court did not make a finding that the cattle were perishable property under Texas Rule of Civil Procedure

600. Similarly, we need not address Hoog's argument that the trial court should have returned the cattle to their owner, Thomas Hoog.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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APPENDIX 2

Pistole v. State, 68 Tex.Crim. 127 (1912)

150 S.W. 618

68 Tex.Crim. 127

Court of Criminal Appeals of Texas.

PISTOLE

v.

STATE.

June 19, 1912. | Rehearing Denied Nov. 6, 1912.

Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.

Henry Pistole was convicted of unlawfully practicing veterinary medicine, surgery, and dentistry, and he appeals. Affirmed.

West Headnotes (12)

[1] Constitutional Law Inquiry Into Legislative Judgment

The questions of the widsom, justice, policy, or expediency of a statute are for the Legislature alone.

1 Cases that cite this headnote

[2] Constitutional Law Licenses in general

Health Validity

Act March 16, 1911, Acts 32d Leg. c. 76, §§ 1-5, requiring licensing of veterinary surgeons, is not violative of Const.

art. 1, §§ 3, 17, 19, declaring men equal, and none entitled to separate privileges.

Cases that cite this headnote

[3] Constitutional Law Trade, business, profession, or occupation, regulation of

Health Validity

Act March 16, 1911, Acts 32d Leg. c. 76, regulating the practice of veterinary medicine, surgery, and dentistry, is not

violative of Const.U.S. art. 4, § 2, regarding privileges and immunities of the citizens of the several states.

Cases that cite this headnote

[4] Constitutional Law Veterinarians

Act approved March 16, 1911, Acts 32d Leg. c. 76 §§ 1-5, relating to the licensing of persons to practice veterinary

surgery, is not violative of Const. art. 1, § 19, nor of the fourteenth amendment of the federal Constitution, relating

to due process of law.

Cases that cite this headnote

[5] Eminent Domain Labor and employment in general

Act March 16, 1911, Acts 32d Leg. c. 76, §§ 1-5, requiring licensing of veterinary surgeons, is not violative of Const.

art. 1, § 17, forbidding taking or damaging of property without compensation.

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Pistole v. State, 68 Tex.Crim. 127 (1912)

150 S.W. 618

Cases that cite this headnote

[6] Licenses Constitutionality and Validity of Acts and Ordinances

Statute relating to licensing of persons to practice veterinary surgery was not unconstitutional.

Cases that cite this headnote

[7] Licenses Equality and uniformity in general

The act approved March 16, 1911, Acts 32d Leg. c. 76, requiring persons to procure a license before they are permitted

to practice as veterinarians, is not violative of Vernon's Ann.St. Const. art. 8, §§ 1, 2, requiring taxation to be equal

and uniform.

Cases that cite this headnote

[8] Health Power to regulate professionals in general

The regulation of the practice of veterinary medicine, surgery, and dentistry is within the police power of the state.

Cases that cite this headnote

[9] Health Validity

Statute requiring licensing of veterinary surgeons was not unconstitutional.

Cases that cite this headnote

[10] Health Validity

Statute regulating practice of veterinary medicine, surgery and dentistry was not unconstitutional.

Cases that cite this headnote

[11] Health Veterinarians

In the trial of one for violating Acts 32d Leg. c. 76, regulating the practice of veterinary medicine, surgery, and

dentistry by practicing without a license, it was no defense that the board of examiners consisted of only five members,

though seven are required by law, and three of the five were graduates of the same school.

Cases that cite this headnote

[12] Statutes Environment and health

The title of the act approved March 16, 1911, Acts 32d Leg. c. 76, regulating the practice of veterinary medicine,

surgery, and dentistry, held to sufficiently embrace the provisions of the act.

Cases that cite this headnote

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Pistole v. State, 68 Tex.Crim. 127 (1912)

150 S.W. 618

Attorneys and Law Firms

*128 **619 Walker & Williams, H. C. Jarrel, and C. F. Greenwood, all of Dallas, for appellant.

C. E. Lane, Asst. Atty. Gen., for the State.

Opinion

PRENDERGAST, J.

On August 2, 1911, a complaint and information was filed against appellant charging that on August 1, 1911, in Dallas county,

Tex., appellant, “who was then and there a resident of said county of Dallas and state of Texas, did then and there unlawfully

practice and attempt to practice veterinary medicine, surgery, and dentistry by then and there treating, operating on, and

prescribing and attempting to treat, operate on, and prescribe for a physical ailment and physical injury to and deformity of a

domestic animal, to wit, a horse, for a money compensation, which he did then and there receive, and the said Henry Pistole did

then and there profess publicly to be a veterinary surgeon and dentist within the aforesaid *129 county of Dallas and state of

Texas; without the said Henry Pistole first having registered in the district clerk's office of Dallas county, Texas, his authority

and certificate of license from the state board of veterinary medical examiners of the state of Texas for so practicing and without

the said Henry Pistole first having applied for and taken out a license from the aforesaid board to practice veterinary surgery

in said state and county, and without the said Henry Pistole having first made an affidavit before the district clerk of Dallas

county, that he had practiced veterinary surgery for five years before the date last above.”

The appellant waived a jury and submitted the case to the court on an agreed statement of facts, which is as follows: “That the

defendant resides at Garland, in Dallas county, Tex., and has resided in Dallas county, Tex., for about 12 years, and is 40 years

of age, and that he has been practicing veterinary medicine and veterinary surgery and veterinary dentistry for a part of 12 years

in Dallas county, Tex., and for a number of years in Rockwall and Collin counties, Tex., and that he charges fees and money

for the services so rendered, and that he did perform the act alleged in the complaint and information in Dallas county, Tex.,

about the time, charged and collected a fee for the same. The defendant has for 10 years been engaged in the active practice

of veterinary medicine, surgery, and dentistry as his sole calling, occupation, and profession, and that his said practice has

covered the counties mentioned above. That he is well versed and schooled in said profession of veterinary medicine, surgery,

and dentistry, and has shown himself thoroughly qualified to practice said science in all its branches in a skillful and successful

manner. That he could successfully pass an examination before the board created for the examination of applicants to practice

veterinary medicine, surgery, and dentistry under the Acts of the Thirty–Second Legislature, pp. 132, 133, 134, 135, 136. That

he has not submitted to an examination before the state board of veterinary examiners under said law, nor under any section

of said law, and that he has not passed any examination before said board since the passage of said law, and that he had not

done so at the time he performed the act alleged in the complaint and information, and has not done so since then, and has

no certificate of license or license of any character from said board. That the defendant herein did not prior to the day and

date alleged in the affidavit and information in this cause make an affidavit before the district clerk of Dallas county, Tex.

(county of his residence), that he had practiced veterinary surgery for a period of five (5) years. That the defendant herein has

no diploma or certificate or license from any regularly organized and recognized veterinary college or school of any sort or kind

anywhere. *130 That the defendant has practiced his profession of veterinary medicine, surgery, and dentistry in the counties

of Rockwall and Collin, in the state of Texas, both before and after the filing of the complaint and information in this cause,

and that he **620 has in each instance, when he has so practiced his profession in said counties, fixed and collected fees for

his work. That the defendant has actively practiced his said profession in Dallas county for more than five years preceding the

passage of said law. That the state board of veterinary medical examiners, as it now (November 20, 1911) stands under the act

of the Thirty–Second Legislature, is composed of five (5) members only, and that three of said five members on said board are

graduates from the same veterinary college; that is, from the Kansas City Veterinary College and institute. That the defendant

in this case is a man of good moral character.”

The court adjudged the appellant guilty, and fixed his penalty at a fine of $25–the lowest under the law.

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Pistole v. State, 68 Tex.Crim. 127 (1912)

150 S.W. 618

It was doubtless the intention of the parties to make this a test case; for, if the act under which appellant was prosecuted and

convicted is valid, the record shows he defied the law, and it is clear that it was his purpose to in no way comply, or attempt to

comply, therewith. The act under which this prosecution was had was enacted by the Thirty–Second Legislature in 1911, and

approved on March 16, 1911 (pages 132 to 136). The object and purpose of the act is clearly manifest on its face, wherein in

section 17 it is said: “The fact that there is no law governing veterinaries within this state, and unskilled persons are engaged

in that business to the injury and detriment of the interests and material welfare of the people, create an emergency and an

imperative public necessity requiring that the constitutional rule requiring bills to be read on three several days be suspended,

and the same is hereby suspended, and this act shall take effect and be in force from and after its passage; be it so enacted.” This

act, like many others when the subject is first legislated upon, may be crude in some of its provisions. It is evident that in some

sections of the act some word or words are omitted, but, if so, the act is thereby in no way made invalid. In some instances, to

take the whole context, such word or words are so apparent that they should be supplied. But whether this is done or not, as

said above, such omissions in no way materially affect the validity of the act.

[1] It is perfectly manifest from the whole of the act that the Legislature intended to regulate the practice of veterinary medicine,

surgery, and dentistry, which was clearly within the proper police powers of the state. It is so universally laid down by all

textbook writers and the opinions of the courts of the various states and the United States that such legislation is within the

police power of the state that it is unnecessary to cite any authority on this point.

The validity of the act is attacked by appellant's able attorneys on *131 many grounds. It is so late in the term, and other

matters of importance are so pressing, that we deem it unnecessary to cite the numerous authorities and argue the questions

sustaining the validity of this act. But after a careful study of the act and the attacks thereon by appellant we have reached the

conclusion that the act is a most reasonable and proper exercise of the police power of this state, and that none of the contentions

of appellant as to its invalidity are correct. It is our opinion that the act is clearly constitutional. We shall not undertake to take up

in the order presented by appellant the points on which he contests the validity of the act, but will call attention to the principal

ones thereof, and merely decide the point and perhaps cite some of the authorities on the question.

[2] One contention by appellant is that the title to the act is too general, and does not embrace or authorize the various provisions

thereof. The title is as follows: “An act to regulate the practice of veterinary medicine, surgery and dentistry; creating a board

for the examination of applicants for the practice of veterinary medicine, surgery and dentistry; prescribing their powers, duties

and qualifications; said board to be known as the ‘State Board of Veterinary Medical Examiners,’ prescribing penalties for a

violation of the provisions of this Act, and declaring an emergency.” In our opinion the title is in every way sufficient under the

Constitution and many decisions of this court. Watts v. State, 61 Tex. Cr. R. 364, 135 S. W. 585, and authorities therein cited.

[3] Another contention by appellant is that it violates sections 1 and 2, art. 8, of our Constitution, which require that taxation

shall be equal and uniform, and that all occupation taxes shall be equal and uniform, etc. These provisions of our Constitution

are wholly inapplicable to this act. This is not a tax measure but a police regulation requiring persons to procure a license

before they are permitted to practice as veterinarians. Ex parte Cramer, 62 Tex. Cr. R. 11, 136 S. W. 61, 36 L. R. A. (N. S.)

78, and cases therein cited.

[4] Again, appellant contends that it violates these sections of our Constitution: Section 3, art. 1, to the effect that all free men

have equal rights, and no man or set of men are entitled to exclusive, separate public emoluments or privileges, etc., and section

17, art. 1, which provides that no person's property shall be taken, damaged, or destroyed, or applied to public use without

adequate compensation being made, and section 19, art. 1, which provides that no citizen of this state shall be deprived of

property, privileges, or immunities, etc., except by due course of the law of the land. In our opinion none of this provisions are

violated by this act, and none of these provisions are applicable. The act in our opinion **621 is a most reasonable regulation

in all of its provisions of the subject legislated upon, and, while it makes some classifications of those who have heretofore

practiced or who may hereafter desire to practice, they are very reasonable, and, unless they were in the act, a much more

plausible claim *132 could be made that its provisions were unreasonable, than with the provisions as they exist in the act.

By every provision of it, where classes are made, it is necessary to do so, and each within that class have equal rights with the

others, and no exclusive rights or privileges are improperly attempted to be given to one over another. No one's property thereby

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Pistole v. State, 68 Tex.Crim. 127 (1912)

150 S.W. 618

is taken, damaged, or destroyed, but merely a reasonable and proper police regulation is made of the business legislated upon.

Neither is any one thereby deprived of his life, liberty, property, privileges, or immunities, but the act reasonably, and only

reasonably, for the benefit of the whole people, undertakes and does properly regulate the license and practice of a veterinarian.

We will state briefly the substance only of the act as we deem that amply sufficient. The first section prohibits any person from

practicing veterinary surgery, unless and until such person complies with the act.

Section 2 provides for the appointment by the Governor of a board of seven medical examiners, and prescribes whom the

Governor may appoint and whom he shall not appoint.

Section 3 provides for the meeting of this board and the organization thereof, and the election of the several officers, and that

four members shall constitute a quorum.

Section 4 prescribes when they shall meet, and that notice shall be given of such meeting, and what examinations are authorized,

and some of the qualifications of the applicants.

Section 5 prescribes the various subjects upon which applicants shall be examined. This section has a most reasonable provision

to the effect that any one who has been practicing as a veterinarian in Texas as his principal occupation for at least one year

prior to the time the act goes into effect shall be entitled to a temporary certificate or license which shall be good for one year

authorizing him to practice, and without at that time undergoing an examination by the board. It also provides that where any

person who has practiced for five years prior to the enactment may practice in their county or residence only without license

by making an affidavit before the district clerk of his county that he has so practiced for five years, but, if such person shall

remove from the county of his residence, he shall comply with all the requirements of said act before he shall be allowed to

practice in the county to which he removes. This is a general provision applicable alike to all under the same conditions; is

not an arbitrary discrimination permitting some and forbidding others to carry on their business or profession. But, as stated,

is general and applicable to all alike under the same circumstances. In our opinion it does show such material difference in the

situation of the parties as would not only authorize but would require such difference to be made. In fact, it occurs to us that,

if such distinction were not made as to the classes of persons under the different situations, that the provisions of the act would

then be unequal, and perhaps raise some question of its validity.

[5] This court cannot pass upon a question of policy by the Legislature. In some instances this court might materially differ

with the Legislature *133 about the policy of certain legislation, but, whenever the Legislature has the right itself to pass upon

the question of policy, this court cannot substitute its judgment for that of the Legislature. The Legislature, and not this court,

knows, or is, so far as this court is concerned, conclusively presumed to know, the differences, if any, of the various persons

who have heretofore practiced or who may hereafter seek to practice veterinary medicine or surgery, and would better know

than this court the situation of such persons so as to make the proper distinction between them as classes, not as individuals,

in authorizing or prohibiting them from practicing such profession.

[6] Again, appellant contends that said act violates section 2 of article 4 of the United States Constitution, wherein it is provided

that citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states. And of the

fourteenth amendment to the Constitution of the United States, wherein it requires that no state shall make or enforce any law

which may abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life,

liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the law.

In our opinion neither of these constitutional provisions are in any way violated by this act. In this connection we state further

of the specific enactments of this law.

Section 6 provides that the board shall keep books, and what they shall show and that they shall be open to inspection.

Section 7, in effect, requires that all persons who make an original application, and who must stand an examination by the board

on the various subjects prescribed by section 5 of the act, shall pay a fee of $5 which is intended as some compensation to the

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Pistole v. State, 68 Tex.Crim. 127 (1912)

150 S.W. 618

board for its work in making this examination, but it expressly provides that the payment of such fee shall not be required of

those who have practiced in Texas for as much as one year before the act became operative.

**622 Section 8 requires every one when he gets license to record the same in the office of the district clerk of the county

in which he makes his residence, and shall display it in his regular place of business and prohibits any one from practicing

until he records his license, and, if he does not record it within three months, it shall no longer be valid. It further requires that

when one removes his residence from one county to another to likewise record his license in the county into which he removes;

but authorizes those who have so registered their license in the county of their residence to go from one county to another on

professional business without being required to register in such county where he temporarily goes.

It is unnecessary to state the provisions of sections 9 and 10 because they are as to the details of the clerk and officers of the

board, etc.

Section 12 makes it an offense for any one to practice or attempt to practice veterinary medicine, surgery, and dentistry without

first having complied with the provisions of this act, and that each day shall be a *134 separate offense, and upon conviction

the penalty fixed at a fine not less than $25 nor more than $200.

Section 13 prescribes who shall be regarded as practicing such professions, unnecessary to state. Then specifically states that

the act shall not be construed to interfere with or punish veterinarians in the United States army or in the United States bureau

of animal industry while so commissioned, nor to any lawfully qualified veterinarians residing in other states or countries from

meeting veterinarians of this state in consultation, nor to any veterinarian residing on the border of a neighboring state and duly

authorized under the laws thereof to practice extending into the limits of this state, provided such practitioner shall not open

any office or appoint a place to meet patients within this state.

Stress is laid by appellant on that part of section 7 of the act which exempts persons from the payment of the $5 fee for a license,

who have practiced veterinary surgery in Texas for one or more years before the act became operative, claiming especially that

this is violative of the two provisions of the United States Constitution mentioned above. Many of the states in the passage of

acts within the police power of the state, regulating the sale of intoxicating liquors have actually prohibited, as our law does,

a license to be issued and a person to engage in the sale of intoxicating liquors, unless they are residents of the state. In other

words, in the proper exercise of the police power, where deemed necessary by the Legislature, that to require a person to be a

resident of this state for a given length of time before license can be issued to such person is not prohibited by the Constitution of

the United States. Mette v. McGuckin, 37 L. Ed. 934 (not officially reported in the U. S. Sup. Ct. Rep.). In this case the Supreme

Court of the United States sustained the validity of an act of the Nebraska Legislature and of the decision of the Supreme Court

of the State of Nebraska on this point. See, also, Freund, Police Power, §§ 710, 711. Also the cases cited in the notes under said

two sections. Also 1 Tiedeman on State and Federal Control of Persons and Property, p. 246, note 1.

The veterinarians in the United States army are officers thereof and their duties as such are prescribed by the acts of Congress.

So are those in the bureau of animal industry of the United States. Such officers and their duties are prescribed under the act

of Congress. It was entirely proper, therefore, that this act should expressly exempt such officers of the United States from its

provisions while, as expressed in the act, they are so commissioned. This state could not require such officers to take out license

and stand an examination under our law, for they are not practicing such as is attempted to be regulated under the provisions

of this act, but they would be in the discharge of their official duties as officers of the United States army and of the United

States. Even if such exemption had not been made *135 in this act, this court would necessarily construe it as not applicable

to such United States officers. And the exemptions of veterinarians, such as are made by section 13 of the act applicable to all

under the same circumstances, are in no way violative of our Constitution or the Constitution of the United States. It occurs

to us that section 11 of the act which authorizes the board of examiners to revoke any license it has issued upon evidence that

it was secured by fraud, or the holder had been guilty of unprofessional or dishonorable conduct, is a reasonable and proper

provision; but, even if that section of the act should for any reason be held unconstitutional, it could not, and would not, affect

the other provisions of the act which appellant has violated.

[7] The only other question necessary to be noticed is appellant's contention that the board of examiners at the time the agreed

statement of facts was filed in this case, November 20, 1911, consisted of only five members, and that three of them were

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Pistole v. State, 68 Tex.Crim. 127 (1912)

150 S.W. 618

graduates of the same school, can neither affect the validity of the act nor justify appellant in the violation thereof. This court

cannot assume and will not presume that the Governor, a co–ordinate branch, of the government, has violated his sworn duty.

We do not understand that that section of the act which requires that no two members of the board shall be graduates of the

same college means, or should be construed to mean, that while they might be graduates of the same school that they might

not be graduates of some other school in addition. The object of **623 this provision, as we take it, was not to prevent the

Governor from appointing persons who are graduates of the same school if as a matter of fact they were not only graduates

of that school, but graduates of some other school too. The statement of facts does not disclose whether or not the other two

members of the board had ever been appointed or had died, removed, or otherwise vacated their office, nor in any other way

show that the Governor had violated his official duty. So far as the record discloses, it may be that the other two members of the

board at that particular time had vacated their offices, but that does not show that the board up to that time had not been legally

constituted and all of them appointed, nor that sufficient time had elapsed in case of such vacated office for the Governor to

appoint their successor so as to complete and constitute a full board of seven members. And, besides this, so far as the record

shows, the five members who were then on the board were without question a de facto board if not a de jure board. It may be

that if appellant had shown that there was no legal board in existence, and that although he was ready and willing to go before

one when constituted, and secure his license under the terms of the act, he could not do so because no legal board existed to

authorize it, that he should not have been convicted. The statement of facts shows the reverse of this condition; that he in no

way attempted to secure license, and did not intend to *136 do so, and that he not only defied the law, but has persistently,

willfully, and intentionally violated it.

The judgment will be affirmed.

DAVIDSON, P. J., not sitting.

All Citations

68 Tex.Crim. 127, 150 S.W. 618

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

APPENDIX 3

Strickland v. Medlen, 397 S.W.3d 184 (2013)

56 Tex. Sup. Ct. J. 470

397 S.W.3d 184

Supreme Court of Texas.

Carla STRICKLAND, Petitioner,

v.

Kathryn and Jeremy MEDLEN, Respondents.

No. 12–0047. | April 5, 2013.

Synopsis

Background: Dog owners brought action against employee of animal shelter, alleging that employee negligently euthanized

dog, and seeking non-economic damages for loss of companionship. The County Court at Law No. 1, Tarrant County, Don

Pierson, J., dismissed action. Owners appealed. The Fort Worth Court of Appeals, 353 S.W.3d 576, reversed and remanded.

Shelter employee petitioned for review.

[Holding:] The Supreme Court, Willett, J., held that dog owners could not recover non-economic damages for loss of

companionship.

Reversed.

West Headnotes (2)

[1] Animals Civil liability

Owners of dog that had been negligently euthanized at animal shelter were not entitled to recover non-economic

damages for loss of companionship; dog was personal property, loss of companionship was a component of loss

of consortium, a type of damages available only for a few especially close family relationships, and rule allowing

recovery for intrinsic value for loss of cherished heirlooms could not be extended to allow recovery for loss of a pet.

7 Cases that cite this headnote

[2] Animals Civil liability

Where a dog's market value is unascertainable, the correct measure of damages for loss of dog is the dog's special

or pecuniary value, in other words its actual value: the economic value derived from its usefulness and services, not

value drawn from companionship or other non-commercial considerations.

3 Cases that cite this headnote

Attorneys and Law Firms

*185 Alison M. Rowe, John Hill Cayce Jr., Mallory Ann Beagles, Paul Boudloche, for Petitioner.

Randall E. Turner, Sondrea King, Susan Bleil, for Respondent.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Strickland v. Medlen, 397 S.W.3d 184 (2013)

56 Tex. Sup. Ct. J. 470

Justice WILLETT delivered the opinion of the Court. *

Beauty without Vanity, Strength without Insolence, Courage

without Ferocity, And all the Virtues of Man without his Vices 1

Texans love their dogs. Throughout the Lone Star State, canine companions are treated—and treasured—not as mere personal

property but as beloved friends and confidants, even family members. Given the richness that companion animals add to our

everyday lives, losing “man's best friend” is undoubtedly sorrowful. Even the gruffest among us tears up (every time) at the

end of Old Yeller. 2

This case concerns the types of damages available for the loss of a family pet. If a cherished dog is negligently killed, can a dollar

value be placed on a heartsick owner's heartfelt affection? More pointedly, may a bereaved dog owner recover emotion-based

damages for the loss? In 1891, we effectively said no, announcing a “true rule” that categorized dogs as personal property, 3

thus disallowing non-economic damages. In 2011, however, a court of appeals said yes, 4 effectively creating a novel—and

expansive—tort claim: loss of companionship for the wrongful death of a pet.

In today's case, involving a family dog that was accidentally euthanized, we must decide whether to adhere to our restrictive,

122–year–old precedent classifying pets as property for tort-law purposes, or to instead recognize a new common-law loss-of-

companionship claim that allows noneconomic damages rooted solely in emotional attachment, a remedy the common law has

denied those who suffer the wrongful death of a spouse, parent, or child, 5 and is available in Texas only by statute. 6

We acknowledge the grief of those whose companions are negligently killed. Relational attachment is unquestionable. But it

is also uncompensable. We reaffirm our long-settled rule, which tracks the overwhelming weight of authority nationally, plus

the bulk of amicus curiae briefs from several pet-welfare organizations (who understand the deep emotional bonds between

people and their animals): Pets are property in the eyes of the law, and we decline to permit non-economic damages rooted

solely in an owner's subjective feelings. True, a beloved companion dog is *186 not a fungible, inanimate object like, say,

a toaster. The term “property” is not a pejorative but a legal descriptor, and its use should not be misconstrued as discounting

the emotional attachment that pet owners undeniably feel. Nevertheless, under established legal doctrine, recovery in pet-death

cases is, barring legislative reclassification, limited to loss of value, not loss of relationship.

We reverse the court of appeals' judgment and render judgment in favor of the Petitioner.

I. Factual and Procedural Background

In June 2009, Avery, a mixed-breed dog owned by Kathryn and Jeremy Medlen, escaped the family's backyard and was promptly

picked up by Fort Worth animal control. Jeremy went to retrieve Avery but lacked enough money to pay the required fees. The

shelter hung a “hold for owner” tag on Avery's cage to alert employees that the Medlens were coming for Avery and ensure

he was not euthanized. Despite the tag, shelter worker Carla Strickland mistakenly placed Avery on the euthanasia list, and

he was put to sleep.

Jeremy and his two children learned of Avery's fate a few days later when they returned to retrieve him. Devastated, the Medlens

sued Strickland for causing Avery's death and sought “sentimental or intrinsic value” damages since Avery had little or no

market value and “[could not] be replaced.” Strickland specially excepted, contending such damages are unrecoverable in pet-

death cases. The trial court directed the Medlens to amend their pleadings to “state a claim for damages recognized at law.”

The Medlens amended their petition to drop the words “sentimental value” but realleged damages for Avery's “intrinsic value.”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Strickland v. Medlen, 397 S.W.3d 184 (2013)

56 Tex. Sup. Ct. J. 470

Strickland specially excepted on the same basis, and the trial court, sure that Texas law barred such damages, dismissed the

suit with prejudice.

The court of appeals reversed, becoming the first Texas court to hold that a dog owner may recover intangible loss-of-

companionship damages in the form of intrinsic or sentimental-value property damages. Addressing our 1891 decision in

Heiligmann v. Rose, 7 which pegged dog-loss damages to market value or a value ascertained from the dog's “usefulness and

services,” the court of appeals stated, “Texas law has changed greatly since 1891” and “sentimental damages may now be

recovered for ... all types of personal property.” 8 Specifically, the court said our more recent, non-dog property cases “explicitly

held that where personal property has little or no market value, and its main value is in sentiment, damages may be awarded

based on this intrinsic or sentimental value.” 9 The court of appeals pivoted, too, on our expression in Heiligmann that the dogs

“were of a special value to the owner,” 10 and took from this phrase that special value “may be derived from the attachment

that an owner feels for his pet.” 11 Emphasizing these iron truths—that “[d]ogs are unconditionally devoted to their owners” 12

and owners, reciprocally, have a deep attachment “to their beloved family pets” 13 —the court of appeals declared *187 “the

special value of ‘man's best friend’ should be protected.” 14 Thus, given “the special position pets hold in their family, we see

no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other

personal property.” 15 Reinstating the Medlens' claim, the court of appeals concluded: “Because an owner may be awarded

damages based on the sentimental value of lost personal property, and because dogs are personal property, the trial court erred

in dismissing the Medlens' action against Strickland.” 16

This appeal followed, posing a single, yet significant, issue: whether emotional-injury damages are recoverable for the negligent

destruction of a dog. 17

II. Discussion

America is home to 308 million humans 18 and 377 million pets. 19 In fact, “American pets now outnumber American children

by more than four to one.” 20 In a nation where roughly 62% of households own a pet—with about 78 million dogs and 86

million cats (and 160 million fish) 21 —it is unsurprising that many animal owners view their pets not as mere personal property

but as full-fledged family members, and treat them as such:

• A study found that 70% of pet owners thought of their pets as family members. 22

• 45% of dog owners take their pets on *188 vacation. 23

• Over 50% of pet owners say they would rather be stranded on a deserted island with a dog or cat than with a human. 24

• 50% of pet owners report being “very likely” to put their own lives in danger to save their pets, and 33% are “somewhat

likely” to risk their lives. 25

• In 2012, Americans spent roughly $53 billion on their pets. 26

The human-animal bond is indeed powerful. As the Medlens' second amended petition states: “The entire Medlen family was

devastated by the loss of Avery, who was like a family member to them.” Countless Texas families share this pets-as-family

view, but Texas law, for a century-plus, has labeled them as “property” for purposes of tort-law recovery.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Strickland v. Medlen, 397 S.W.3d 184 (2013)

56 Tex. Sup. Ct. J. 470

A. Our Precedent Limits Damages in Dog–Death Tort Cases to “Market Value, If the Dog

Has Any,” or “Special or Pecuniary Value” Linked to the Dog's “Usefulness and Services”

1. Our 1891 Heiligmann Decision Ties “Special Value” to a Dog's

Economic Attributes, Not Subjective or Emotional Considerations

[1] Our analysis begins with Heiligmann v. Rose, 27 our 1891 case upholding $75 in damages for the poisoning of three “well

trained” Newfoundland dogs. Heiligmann articulated some key valuation principles for animal cases. First, we classified dogs

as personal property for damages purposes, not as something giving rise to personal-injury damages. 28 Second, we declared

a “true rule” for damages that flags two elements: (1) “market value, if the dog has any,” 29 or (2) “some special or pecuniary

value to the owner, that may be ascertained by reference to the usefulness and services of the dog.” 30

In Heiligmann, the dogs “were of fine breed, and well trained,” with one using different barks to signal whether an approaching

person was a man, woman, or child. While the owner could sell each dog for $5, they had no market value beyond that, but

the Court upheld damages of $25 each:

There is no evidence in this case that the dogs had a market value, but the evidence is ample showing

the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from

the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer

their value when the owner, by evidence, fixes some amount upon which they could form a basis. 31

The Medlens insist that Heiligmann does not limit recovery to an amount based solely on the dog's economic usefulness and

services. Rather, when the Court mentioned certain dogs lacking market value but having “a special value to the owner,” we

meant something far broader and distinct from the dogs' commercial attributes. Similarly, argue the Medlens, when the Court

in Heiligmann noted a *189 dog's “special or pecuniary value to the owner,” the word “or” indicates two distinct categories of

non-market value dogs—those with a special value to the owner, and those with a pecuniary value to the owner. We disagree.

Given its ordinary, contextual meaning, Heiligmann tied the recovery of “special or pecuniary value” to the dogs' “usefulness

and services” 32 —their economic value, not their sentimental value. While we referenced evidence “showing the usefulness and

services of the dogs, and that they were of a special value to the owner,” 33 the next conditional sentence pegs the jury's valuation

decision to the dogs' economic attributes: “If the jury from the evidence should be satisfied that the dogs were serviceable

and useful to the owner....” 34 The decision never references, even by implication, any evidence regarding companionship or

owner affection.

Thus, a dog's “special or pecuniary value” refers not to the dog-human bond but to the dollars-and-cents value traceable

to the dog's usefulness and services. Such value is economic value, not emotional value based on affection, attachment, or

companionship. In short, Heiligmann's use of the word “special” does not authorize “special damages” and does not refer

generically to a dog's ability to combat loneliness, ease depression, or provide security. The valuation criteria is not emotional

and subjective; rather it is commercial and objective.

2. Our Post–Heiligmann Cases Do Not Relax the No Emotional–Injury Damages Rule for Animal–Death Cases

Alternatively, the Medlens assert that three post-Heiligmann decisions—City of Tyler v. Likes, 35 Porras v. Craig, 36 and Brown

v. Frontier Theatres, Inc. 37 —viewed collectively, entitle property owners to seek intrinsic or sentimental-value damages for

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Strickland v. Medlen, 397 S.W.3d 184 (2013)

56 Tex. Sup. Ct. J. 470

certain destroyed property that lacks market value or “special or pecuniary” value. Because dogs are considered property under

Texas law, they should be treated no differently, argue the Medlens. Accordingly, Avery's intrinsic value to them, including

companionship, is recoverable. We decline to stretch our post-Heiligmann decisions this far.

Our decision a half-century ago in Brown involved irreplaceable family heirlooms such as a wedding veil, pistol, jewelry, hand-

made bedspreads and other items going back several generations—in other words, family keepsakes that “have their primary

value in sentiment.” 38 Such one-of-a-kind memorabilia have a “special value ... to their owner,” and damages may factor in

“the feelings of the owner for such property.” 39 Notably, on the same day we decided Brown fifty years ago, we reaffirmed

in another case the default damages rule for destroyed non-heirloom property lacking market or replacement value: “the actual

worth or value of the articles to the owner ... excluding any fanciful or sentimental considerations.” 40

While they rely chiefly on Brown, the Medlens also cite our decisions in Porras *190 and Likes, but neither offers much

pertinent guidance here. In Porras, a landowner sued someone for clearing several large trees from his land. 41 The landowner

testified about what the land meant to him and his wife, not in market terms but in personal terms. 42 We recognized that the

landowner had been injured by the destruction of trees, even though the property's overall market value may have actually

increased. 43 We remanded for a new trial to determine the “intrinsic value” of the felled trees—that is, its ornamental (aesthetic)

value and its utility (shade) value. 44 That assessment concerning real property is not rooted in an owner's subjective emotions,

as here. While Porras permitted recovery of the “intrinsic value” of the trees, the plaintiff did not seek, nor did the Court discuss,

the trees' sentimental value. Here, the Medlens have suffered lost companionship and are seeking, as a form of “intrinsic value”

property damages, recovery for Avery's role as a cherished family member. The court of appeals read too much into Porras,

which did not import sentimental considerations into measuring “intrinsic value.” And we decline to expand Porras's notion of

“intrinsic value” to animal cases, specifically to include the subjective value a dog owner places on his pet's companionship,

particularly when Porras itself excluded such subjective notions.

Likes is likewise uninstructive. In Likes, the plaintiff alleged that a municipality negligently flooded her house and destroyed

“many personal irreplaceable items.” 45 The principal issue was whether mental-anguish damages are recoverable for the

negligent destruction of personal property. We answered no, though we acknowledged Brown's sentimental-value rule for

property of which the “greater value is in sentiment and not in the market place.” 46 Again, mental anguish is a form of personal-

injury damage, unrecoverable in an ordinary property-damage case. The Medlens' emotion-based claim is, like the mental-

anguish claim in Likes, based wholly on negligent damage to personal property. But Likes bars personal-injury-type damages

in a case alleging negligent property damage. In short, neither Porras nor Likes provides the Medlens much support. Distilled

down, the pivotal question today is straightforward: whether to extend Brown's special rules for family heirlooms to negligently

destroyed pets.

Heiligmann remains our lone case directly on point, and after a century-plus we are loathe to disturb it. An owner's fondness

for a one-of-a-kind, family heirloom is sentimental, existing at the time a keepsake is acquired and based not on the item's

attributes but rather on the nostalgia it evokes, but an owner's attachment to a beloved pet is more: It is emotional, formed over

time and based on the pet's specific attributes, namely the rich companionship it provides. Pets afford here-and-now benefits

—company, recreation, protection, etc.—unlike a passed-down heirloom kept around chiefly to commemorate past events or

passed family members. We agree with the amicus brief submitted by the American Kennel Club (joined by several other

pet-welfare groups): “While no two pets are alike, the emotional attachments a person establishes with each pet cannot be

shoehorned *191 into keepsake-like sentimentality for litigation purposes.” Finally, as explained below, permitting sentiment-

based damages for destroyed heirloom property portends nothing resembling the vast public-policy impact of allowing such

damages in animal-tort cases.

Loss of companionship, the gravamen of the Medlens' claim, is fundamentally a form of personal-injury damage, not property

damage. It is a component of loss of consortium, including the loss of “love, affection, protection, emotional support, services,

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Strickland v. Medlen, 397 S.W.3d 184 (2013)

56 Tex. Sup. Ct. J. 470

companionship, care, and society.” 47 Loss-of-consortium damages are available only for a few especially close family

relationships, 48 and to allow them in lost pet cases would be inconsistent with these limitations. Therefore, like courts in the

overwhelming majority of other states, 49 the Restatement of the Law of Torts, 50 and *192 the other Texas courts of appeals

that have considered this question, 51 we reject emotion-based liability and prohibit recovery for loss of the human-animal bond.

We do not dispute that dogs are a special form of personal property. That is precisely why Texas law forbids animal cruelty

generally (both civilly 52 and criminally 53 ), and bans dog fighting 54 and unlawful restraints of dogs specifically 55 —because

animals, though property, are unique. Most dogs have a simple job description: provide devoted companionship. We have

no need to overrule Brown's narrow heirloom exception today; neither do we broaden it to pet-death cases and enshrine an

expansive new rule that allows recovery for what a canine companion meant to its owner. The Medlens find it odd that Texas

law would permit sentimental damages for loss of an heirloom but not an Airedale. Strickland would find it odd if Texas law

permitted damages for loss of a Saint Bernard but not for a brother Bernard. The law is no stranger to incongruity, and we need

not jettison Brown in order to refuse to extend it to categories of property beyond heirlooms.

[2] The “true rule” in Texas remains this: Where a dog's market value is unascertainable, the correct damages measure is the

dog's “special or pecuniary value” (that is, its actual value)—the economic value derived from its “usefulness and services,” 56

not value drawn from companionship or other non-commercial considerations. 57

*193 We recognize that the benefit of most family dogs like Avery is not financial but relational, and springs entirely from the

pet's closeness with its human companions. Measuring the worth of a beloved pet is unquestionably an emotional determination

—what the animal means to you and your family—but measuring a pet's value is a legal determination. We are focused on the

latter, and as a matter of law an owner's affection for a dog (or ferret, or parakeet, or tarantula) is not compensable. 58

B. Compelling Pet Welfare and Social–Policy Reasons Counsel

Against Permitting Emotion–Based Damages in Dog–Death Cases

This is a significant case not only for pet owners but also, as several animal-welfare groups underscore, for pets themselves.

Appreciating this case's significant implications, numerous animal-advocacy organizations have submitted amicus curiae briefs.

And while there is no unanimous “pro-pet” position—organizations committed to animal well-being are arrayed on both

sides 59 —the vast majority of pet-friendly groups oppose the Medlens' request for emotion-based damages, 60 lest greater

liability raise *194 the cost of pet ownership and ultimately cause companion animals more harm than good.

Several animal-welfare groups—organizations that understand the intense grief and despair occasioned by a pet's death—insist

that relational-injury damages would adversely impact pet welfare. For example, the American Kennel Club, joined by the

Cat Fanciers' Association and other pro-animal nonprofits, worry that “pet litigation will become a cottage industry,” exposing

veterinarians, shelter and kennel workers, animal-rescue workers, even dog sitters, to increased liability: “Litigation would

arise when pets are injured in car accidents, police actions, veterinary visits, shelter incidents, protection of livestock and

pet-on-pet aggression, to name a few.” As risks and costs rise, there would be fewer free clinics for spaying and neutering,

fewer shelters taking in animals, fewer services like walking and boarding, and fewer people adopting pets, leaving more

animals abandoned and ultimately put down. The Texas Veterinary Medical Association sounds alarms of “vast unintended

consequences,” asserting its members would have no choice but to practice defensive medicine “to safeguard against potential

claims of malpractice.” The unfortunate outcome, they contend, would be higher prices for veterinary care, thus fewer owners

bringing in their pets for needed treatment. Families, particularly lower-income families, will avoid preventive care for their pets,

not seek needed care for ill or injured pets, and be more apt to euthanize a pet. The Texas Municipal League and other government

associations worry about police officers and animal-service employees being second-guessed for split-second decisions they

must make in the field when they encounter loose and potentially dangerous animals. Not all dogs are good-natured, they warn,

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56 Tex. Sup. Ct. J. 470

and government workers must be free to take swift action to protect citizens rather than worrying about lawsuits that, even if

successfully defended, drain finite taxpayer resources. Various insurance groups caution that expanded damages would spike

the cost of insurance across the board, not just for veterinarians but also for homeowners and automobile drivers, “inflat[ing]

the value of property loss far above that which insurance contracts have been written to cover with serious consequences for

the affordability and availability of insurance in Texas.”

The opposing amici, including the Texas Dog Commission and eleven Texas law professors, emphasize that the court of appeals'

judgment is consistent with our post-Heiligmann property-valuation precedent, which they contend allows for sentimental-

value damages for the loss of a dog. On this heirloom point, the Medlens pose a unique hypothetical, asserting they could seek

sentimental damages if a taxidermied Avery had been negligently destroyed. If property is property, and if they could seek

sentimental value for a stuffed Avery destroyed long after death, why can't they recover for a euthanized Avery destroyed while

alive? For the reasons stated above and below, we are unpersuaded.

A decade ago we explained: “When recognizing a new cause of action and the accompanying expansion of duty, we must *195

perform something akin to a cost-benefit analysis to assure that this expansion of liability is justified.” 61 On this score, the pet-

welfare amici make a forceful case. While recognizing that dogs are treasured companions whose deaths generate tremendous

sorrow, we are persuaded that allowing loss-of-companionship suits raises wide-reaching public-policy implications that

legislators are better suited to calibrate. Our carefulness is augmented by two legal-policy concerns: (1) the anomaly of elevating

“man's best friend” over multiple valuable human relationships; and (2) the open-ended nature of such liability.

The court of appeals' decision works a peculiar result, effectively allowing “wrongful death” damages for pets. Loss of

companionship is a component of loss of consortium 62 —a form of personal-injury damage, not property damage—and

something we have “narrowly cabined” to two building-block human relationships: husband-wife 63 and parent-child. 64 The

Medlens request something remarkable: that pet owners have the same legal footing as those who lose a spouse, parent, or child.

Moreover, they seek damages they plainly could not seek if other close relatives (or friends) were negligently killed: siblings,

step-children, grandparents, dear friends, and others. 65 Our cases reject loss-of-consortium recovery for such losses. Losing

one's pet, even one considered family, should not invite damages unavailable if an actual human family member were lost.

Put differently, the Medlens seek emotion-based damages for the death of “man's best friend” when the law denies such

damages for the death of a human best friend. For all their noble and praiseworthy qualities, dogs are not human beings, and

the Texas common-law tort system should not prioritize human-animal relationships over intimate human-human relationships,

particularly familial ones. Analogous would be anomalous.

It would also invite seemingly arbitrary judicial line-drawing. Certainly, if we anointed a common-law claim for loss of pet

companionship, we could prescribe limits, but the issue is not whether the Court can draw lines, but whether it should. After all,

people form genuine bonds with a menagerie of animals, so which “beloved family pets” (the court of appeals' description 66 )

would merit such preferred treatment? Domesticated dogs and cats only (as in a Tennessee statute 67 )? Furry, but not finned or

feathered? What about goldfish? Pythons? Cockatiels? There seems to be no cogent stopping point, at least none that doesn't

resemble judicial legislation.

Similarly, while statutory damage caps exist in various types of cases involving people, the court of appeals' decision leaves

matters wholly unconfined. Such broad, unstructured liability would invite peculiar results. Under Heiligmann, for *196

example, if a Westminster best-of-breed champion with a $20,000 market value is negligently destroyed, that would be its

owner's top-end recovery. But if a 15–year–old frail dog with no market value dies, the owner could sue for unlimited emotional-

injury damages. We could impose damages limits, but such fine-tuning is more a legislative function than a judicial one. The

Medlens and amici urge a damages model based on a pet's primary value, but that, too, invites gamesmanship. The owner of

a well-trained dog with legitimate market or pecuniary value, like a service animal, would be better off saying his beloved pet

was a “worthless mutt” (to avoid a less-rewarding recovery under Heiligmann), yet a lovable, part-of-the-family mutt that the

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owner adored with all his heart (to maximize sentimental damages under Brown ). Our tort system cannot countenance liability

so imprecise, unbounded, and manipulable.

C. The Legislature Is Best Equipped to Weigh and Initiate Broad Changes to Social and

Civil–Justice Policy, Including Whether to Liberalize Damages Recovery in Pet–Death Cases

The Medlens seek a sweeping alteration of Texas tort-law principles, upending a century-plus of settled rights, duties, and

responsibilities. The judiciary, however, while well suited to adjudicate individual disputes, is an imperfect forum to examine

the myriad policy trade-offs at stake here. Questions abound: who can sue, who can be sued, for what missteps, for what types

of damages, for how much money? And what of the societal ripple effects on veterinarians, animal-medicine manufacturers,

homeowners and drivers seeking insurance, pet owners, pet caretakers, and ultimately pets themselves? Animal-death suits

portend fundamental changes to our civil-justice system, not incremental adjustments on a case-by-case basis. They require

detailed findings and eligibility criteria, which in turn require the careful balancing of a range of views from a range of

perspectives, something best left to our 181–member Legislature. If lawmakers wish, they can hold hearings and then, after

hearing testimony and weighing arguments, craft meticulous, product-of-compromise legislation that allows non-economic

damages to a controllable and predictable degree.

We also draw counsel from the history of Texas common law, which, though it has allowed sentimental damages for the loss of

an heirloom, has not done so for the loss of a person, instead deferring to the Legislature. One explanation is that with heirlooms,

the value is sentimental; with people, the value is emotional. The reason the common law historically declined to create a

wrongful-death action is not because the common law is incapable of setting reasonable parameters, or because such parameters

are impossible or necessarily capricious. Rather it is because such parameters are most optimally informed by policy- and value-

laden judgments the Legislature is best equipped to make. The difficulties of measuring damages for the loss of human life

and identifying the beneficiaries entitled to recover were deemed by the common law too great. Because the judiciary was an

imperfect decider, courts decided legislatures should decide. And our Legislature did so, authorizing a statutory wrongful-death

action for reasons it was better suited to gauge. 68 Having historically declined to *197 recognize a common-law action for

the loss of a human, the common law should not, for mostly the same reasons, recognize one for the loss of a pet.

Our precedent on the legal valuation of companion animals has endured for 122 years, and while we decline today to expand

the damages available to bereaved pet owners, we understand the strength of the human-animal bond. Few Texans consider

their pets throw-away commodities. Perhaps the Legislature will enact a more generous valuation formula for family pets.

Valuation derives fundamentally from values, and elected legislators may favor scrapping the “property” label and reclassifying

companion pets as something more elevated. The Legislature has passed a wrongful-death statute for humans; it has not (yet) for

animals. Given the competing public-policy considerations, we believe if there is to be expanded recovery in pet-death cases,

it, too, should be confronted legislatively, not judicially.

In 2000, Tennessee enacted legislation authorizing non-economic damages, up to $5,000, when someone negligently or

intentionally kills a companion animal. 69 The T–Bo Law 70 (named for the senate sponsor's beloved Shih Tzu) 71 narrowly

defines “pet” as a domesticated dog or cat, limits recovery to “the deceased pet's owner or caretaker,” and immunizes

veterinarians and animal shelters from negligence liability. 72 The Maryland Legislature has likewise limited damages in pet

cases, restricting damages to fair market value plus the necessary costs of veterinary care, not to exceed $7,500 total. 73 An

Illinois statute allows non-economic damages, but it, too, tries to narrow them, allowing emotional-distress recovery only in

cases of aggravated cruelty or torture or when an animal is injured or killed in bad faith when seized or impounded. 74 That is,

it forbids non-economic damages for acts of ordinary negligence.

As a matter of Texas common law, emotion-based damages are unrecoverable, but whether to permit such liability statutorily is a

quintessential legislative judgment. Societal attitudes inexorably change, and shifting public views may persuade the Legislature

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56 Tex. Sup. Ct. J. 470

to extend wrongful-death actions to pets. Amid competing policy interests, including the inherent subjectivity (and inflatability)

of emotion-based damages, lawmakers are best positioned to decide if such a potentially costly expansion of tort law is in the

State's best interest, and if so, to structure an appropriate remedy.

III. Conclusion

To his dog, every man is Napoleon; hence the constant popularity of dogs. 75

It is an inconvenient, yet inescapable, truth: “Tort law ... cannot remedy every wrong.” 76 Lines, seemingly arbitrary, are

required. No one disputes that a family *198 dog—“in life the firmest friend” 77 —is a treasured companion. But it is also

personal property, and the law draws sensible, policy-based distinctions between types of property. The majority rule throughout

most of America—including Texas since 1891—leavens warm-heartedness with sober-mindedness, applying a rational rule

rather than an emotional one. For the reasons discussed above, we decline to (1) jettison our 122–year–old precedent classifying

dogs as ordinary property, and (2) permit noneconomic damages rooted in relational attachment.

Under Texas common law, the human-animal bond, while undeniable, is uncompensable, no matter how it is conceived in

litigation—as a measure of property damages (including “intrinsic value” or “special value ... derived from the attachment

that an owner feels for his pet” 78 ), as a personal-injury claim for loss of companionship or emotional distress, or any other

theory. The packaging or labeling matters not: Recovery rooted in a pet owner's feelings is prohibited. We understand that

limiting recovery to market (or actual) value seems incommensurate with the emotional harm suffered, but pet-death actions

compensating for such harm, while they can certainly be legislated, are not something Texas common law should enshrine.

We reverse the court of appeals' judgment and render judgment in favor of Strickland.

All Citations

397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470

Footnotes

* CHIEF JUSTICE JEFFERSON joins all but footnote 58 and Part II–C of this opinion. JUSTICE JOHNSON joins all but Part II–C.

1 Lord Byron, Inscription on the Monument of a Newfoundland Dog, in 7 THE WORKS OF LORD BYRON: WITH HIS LETTERS

AND JOURNALS, AND HIS LIFE 292–93 n. 2 (Thomas Moore ed., 1832).

2 OLD YELLER (Walt Disney 1957).

3 Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931, 932 (1891).

4 Medlen v. Strickland, 353 S.W.3d 576, 581 (Tex.App.–Fort Worth 2011).

5 See Russell v. Ingersoll–Rand Co., 841 S.W.2d 343, 345 (Tex.1992) (“common law rule” was that “no cause of action [could] be

brought for the death of another person”).

6 TEX. CIV. PRAC. & REM.CODE § 71.002.

7 16 S.W. 931.

8 353 S.W.3d at 576–80.

9 Id. at 578.

10 Id. at 580 (quoting Heiligmann, 16 S.W. at 932).

11 Id.

12 Id.

13 Id.

14 Id. at 580–81.

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15 Id. at 580.

16 Id. at 581.

17 Though no one disputes that Strickland was acting within the scope of her governmental employment, she did not move for dismissal

under section 101.106(f) of the Texas Tort Claims Act, TEX. CIV. PRAC. & REM.CODE § 101.106(f), to which she would have

been entitled, Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011), as the Medlens concede. Instead, she sought dismissal based on

her special exceptions, which the trial court sustained. Dismissal under section 101.106(f) is not automatic; Strickland was required

to file a motion. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 551 (Tex.2010); see also Univ. of

Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 401 (Tex.2011) (“Substitution of the [governmental body] as the

defendant was not automatic; [plaintiff] was required to file a motion.”). At the court of appeals, Strickland raised a cross-point urging

dismissal on immunity grounds under section 101.106(f). 353 S.W.3d at 581. She requested that if the court of appeals reinstated the

Medlens' action, it should remand the case to the trial court where she would file the required motion to dismiss. Id. The courts of

appeals, however, went straight to the merits and declined to reach Strickland's jurisdictional issue, reasoning that it was remanding

anyway by sustaining the Medlens' sole issue on appeal. Id. This appeal followed. As Strickland has not satisfied section 101.106(f)'s

prerequisites for dismissal, we proceed to the only issue before us, the merits: whether emotion-based damages are recoverable.

18 State and County Quick Facts, U.S. CENSUS BUREAU (Mar. 14, 2013, 11:17 AM), http://quickfacts.census.gov/qfd/

states/00000.html (listing the 2010 U.S. population as almost 309 million).

19 Pet Industry Market Size & Ownership Statistics, AM. PET PRODS. ASS'N, , http://www.americanpetproducts.org/

press_industrytrends.asp (last visited Apr. 3, 2013).

20 JONATHAN V. LAST, WHAT TO EXPECT WHEN NO ONE'S EXPECTING: AMERICA'S COMING DEMOGRAPHIC

DISASTER 2 (2013) (noting that as birth rates plummet in America—the so-called “baby bust” generation—pet ownership soars).

21 Pet Industry Market Size & Ownership Statistics, supra note 19.

22 William C. Root, “Man's Best Friend”: Property or Family Member? An Examination of the Legal Classification of Companion

Animals and its Impact on Damages Recoverable for Their Wrongful Death or Injury, 47 VILL. L.REV.. 423, 436 (2002).

23 Id. at 423.

24 Id.

25 Id.

26 Pet Industry Market Size & Ownership Statistics, supra note 19.

27 16 S.W. 931.

28 Id. at 932.

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 962 S.W.2d 489 (Tex.1997).

36 675 S.W.2d 503 (Tex.1984).

37 369 S.W.2d 299 (Tex.1963).

38 Id. at 304–05.

39 Id. at 305.

40 Crisp v. Sec. Nat'l Ins. Co., 369 S.W.2d 326, 328 (Tex.1963).

41 675 S.W.2d at 504.

42 Id. at 505.

43 Id. at 506.

44 See id.

45 962 S.W.2d at 493.

46 Id. at 497 (quoting Brown, 369 S.W.2d at 304–05).

47 Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex.1990).

48 See, e.g., Roberts v. Williamson, 111 S.W.3d 113, 118 (Tex.2003); Ford Motor Co. v. Miles, 967 S.W.2d 377, 383–84 (Tex.1998);

Reagan, 804 S.W.2d at 467.

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49 See Mitchell v. Heinrichs, 27 P.3d 309, 312–14 (Alaska 2001); Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272, 278–79

(Ct.App.2009); McMahon v. Craig, 176 Cal.App.4th 1502, 97 Cal.Rptr.3d 555, 566–68 (2009); Myers v. City of Hartford, 84

Conn.App. 395, 853 A.2d 621, 626 (2004); Naples v. Miller, 2009 WL 1163504, at *2–4 (Del.Super.Ct. Apr. 30, 2009), aff'd, 992

A.2d 1237 (Del.2010); Kennedy v. Byas, 867 So.2d 1195, 1198 (Fla.Dist.Ct.App.2004); Gill v. Brown, 107 Idaho 1137, 695 P.2d

1276, 1277 (Ct.App.1985); Jankoski v. Preiser Animal Hosp., Ltd., 157 Ill.App.3d 818, 110 Ill.Dec. 53, 510 N.E.2d 1084, 1087

(1987); Lachenman v. Stice, 838 N.E.2d 451, 461 (Ind.Ct.App.2005); Nichols v. Sukaro Kennels, 555 N.W.2d 689, 691 (Iowa 1996);

Ammon v. Welty, 113 S.W.3d 185, 187–88 (Ky.Ct.App.2002); Kling v. U.S. Fire Ins. Co., 146 So.2d 635, 642 (La.Ct.App.1962),

overruled in part by Holland v. Buckley, 305 So.2d 113, 114 (La.1974); Krasnecky v. Meffen, 56 Mass.App.Ct. 418, 777 N.E.2d 1286,

1289–90 (2002); Koester v. VCA Animal Hosp., 244 Mich.App. 173, 624 N.W.2d 209, 211 (2000); Fackler v. Genetzky, 257 Neb.

130, 595 N.W.2d 884, 891–92 (1999); Harabes v. Barkery, Inc., 348 N.J.Super. 366, 791 A.2d 1142, 1145–46 (2001); Wilcox v. Butt's

Drug Stores, Inc., 38 N.M. 502, 35 P.2d 978, 979 (1934); DeJoy v. Niagara Mohawk Power Corp., 13 A.D.3d 1108, 786 N.Y.S.2d

873, 873 (2004) (mem.); Shera v. N.C. State Univ. Veterinary Teaching Hosp., 723 S.E.2d 352, 357–58 (N.C.Ct.App.2012); Pacher

v. Invisible Fence of Dayton, 154 Ohio App.3d 744, 798 N.E.2d 1121, 1125–26 (2003); Oberschlake v. Veterinary Assocs. Animal

Hosp., 151 Ohio App.3d 741, 785 N.E.2d 811, 812–15 (2003); Lockett v. Hill, 182 Or.App. 377, 51 P.3d 5, 7–8 (2002); Daughen v.

Fox, 372 Pa.Super. 405, 539 A.2d 858, 864–65 (1988); Rowbotham v. Maher, 658 A.2d 912, 912–13 (R.I.1995); Scheele v. Dustin,

188 Vt. 36, 998 A.2d 697, 700–04 (2010); Goodby v. Vetpharm, Inc., 186 Vt. 63, 974 A.2d 1269, 1273–74 (2009); Kondaurov v.

Kerdasha, 271 Va. 646, 629 S.E.2d 181, 187 (2006); Sherman v. Kissinger, 146 Wash.App. 855, 195 P.3d 539, 548, 549 n. 9 (2008);

Carbasho v. Musulin, 217 W.Va. 359, 618 S.E.2d 368, 370–71 (2005); Rabideau v. City of Racine, 243 Wis.2d 486, 627 N.W.2d

795, 798–99, 801–02 (2001). But see Knowles Animal Hosp., Inc. v. Wills, 360 So.2d 37, 38 (Fla.Dist.Ct.App.1978) (per curiam);

Barrios v. Safeway Ins. Co., 97 So.3d 1019, 1022–24 (La.Ct.App.2012); Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc.2d 530,

530–31, 415 N.Y.S.2d 182 (Civ.Cit.1979).

50 RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 47 cmt. m (2012)(emphasis in

original):

Recovery for emotional harm resulting from negligently caused harm to personal property is not permitted under this Section.

Emotional harm due to harm to personal property is insufficiently frequent or significant to justify a tort remedy. While pets

are often quite different from other chattels in terms of emotional attachment, an actor who negligently injures another's pet is

not liable for emotional harm suffered by the pet's owner. This rule against liability for emotional harm secondary to injury to a

pet limits the liability of veterinarians in the event of malpractice and serves to make veterinary services more readily available

for pets. Although harm to pets (and chattels with sentimental value) can cause real and serious emotional harm in some cases,

lines—arbitrary at times—that limit recovery for emotional harm are necessary. Indeed, injury to a close personal friend may

cause serious emotional harm, but that harm is similarly not recoverable under this Chapter. However, recovery for intentionally

inflicted emotional harm is not barred when the defendant's method of inflicting harm is by means of causing harm to property,

including an animal. See § 46, Comment d.

51 In the 122 years since Heiligmann, five Texas courts of appeals have decided dog-death cases, and all but one (the court of appeals in

this case) have concluded that Texas law prohibits non-economic damages. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d

554 (Tex.App.–Austin 2004, no pet.); Zeid v. Pearce, 953 S.W.2d 368 (Tex.App.–El Paso 1997, no writ); Bueckner v. Hamel, 886

S.W.2d 368 (Tex.App.–Houston [1st Dist.] 1994, writ denied); Young's Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex.Civ.App.–

Beaumont 1931, no writ).

52 TEX. HEALTH & SAFETY CODE §§ 821.021–.026.

53 TEX. PENAL CODE § 42.09–.092.

54 Id. § 42.10.

55 TEX. HEALTH & SAFETY CODE §§ 821.076–.081.

56 Heiligmann, 16 S.W. at 932.

57 Id. The Texas rule falls squarely within the national mainstream, which cuts overwhelmingly against sentimental-damages recovery.

As noted earlier, most other states likewise do not allow pet owners to recover emotional-injury damages. See supra note 49.

“Fair market value” remains the predominant measure of damages nationally. Some courts, though, have adopted an “actual value”

approach when market value for the animal (1) is nonexistent, (2) cannot be ascertained, or (3) is not a true measure of its worth. See,

e.g., Mitchell, 27 P.3d at 313–14; Jankoski, 110 Ill.Dec. 53, 510 N.E.2d at 1087; Brousseau v. Rosenthal, 110 Misc.2d 1054, 443

N.Y.S.2d 285, 286 (Civ.Ct.1980); Shera, 723 S.E.2d at 357–58; Sokolovic v. Hamilton, 195 Ohio App.3d 406, 960 N.E.2d 510, 513

(2011); McDonald v. Ohio State Univ. Veterinary Hosp., 67 Ohio Misc.2d 40, 42–43, 644 N.E.2d 750 (1994). Other jurisdictions

have permitted punitive damages where the wrongdoer injured or killed an animal with malice. See CAL. CIV.CODE § 3340 (West

2012); Martinez v. Robledo, 210 Cal.App.4th 384, 147 Cal.Rptr.3d 921, 926 (2012); Plotnik v. Meihaus, 208 Cal.App.4th 1590, 146

Cal.Rptr.3d 585, 600 (2012); Bruister v. Haney, 233 Miss. 527, 102 So.2d 806, 807 (1958).

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58 While actual value cannot include the owner's “feelings,” unlike Brown's narrow exception for one-of-a-kind heirlooms, 369

S.W.2d at 305, it can include a range of other factors: purchase price, reasonable replacement costs (including investments such as

immunizations, neutering, training), breeding potential (if any), special training, any particular economic utility, veterinary expenses

related to the negligent injury, and so on. See Mitchell, 27 P.3d at 313–14; see also Heiligmann, 16 S.W. at 932 (taking into account

breed and special training in determining damages); Nichols, 555 N.W.2d at 692 (“In determining the measure of damages for injuries

to a dog, factors include its market value, which may be based on purchase price, relatively long life of breed, its training, usefulness

and desirable traits.” (quoting 4 AM.JUR. 2d Animals § 162 (1964))). Emotional attachment, however, is not a component of actual

value.

59 Supporting the Medlens (and thus favoring emotional-injury damages) are the Texas Dog Commission (TDC) and a group of law

professors. The TDC says the court of appeals' decision follows Heiligmann and tracks prevailing law. The law professors say

Heiligmann divided personal property into three categories, “based on where the greatest value of the property lies”—(1) personal

property with market value, (2) personal property with use value, and (3) personal property that has sentiment as its primary

value—“and created a different damages test for each.” This case, they contend, falls neatly within category three in light of our

post-Heiligmann cases that allow intrinsic value when market or pecuniary valuations are out of place.

60 Supporting Strickland (and thus opposing emotional-injury damages) are the Texas Municipal League, the Texas City Attorneys

Association, and the City of Arlington, Texas (collectively “Municipal Amici”); the American Kennel Club, Cat Fanciers'

Association, Animal Health Institute, American Veterinary Medical Association, National Animal Interest Alliance, American Pet

Products Association, and Pet Industry Joint Advisory Council (collectively “AKC”); the Texas Veterinary Medical Association

(TVMA); the Texas Civil Justice League (TCJL); and the Property Casualty Insurers Association of America, American Insurance

Association, and National Association of Mutual Insurance Companies (collectively “Insurer Amici”).

The Municipal Amici argue the court of appeals' ruling essentially allows “wrongful death” damages for dogs that are barred

for human beings. Also, such damages would irrationally expose to unrestricted damages municipalities, veterinarians, and other

service providers who must make difficult, on-the-fly decisions in the field. The AKC warns that allowing such liability will

necessarily increase the costs of pet “health care, pet products, and other pet services.” The TVMA says allowing emotion-based

damages may actually harm pets “by driving up the basic costs of pet ownership,” and that litigation and insurance costs will cause

veterinarians to boost prices to offset the threat of noneconomic damages. The TCJL contends such damages offend well-settled

law, put Texas jurisprudence far outside the mainstream, and force a radical policy change better left to the Legislature. The Insurer

Amici assert that allowing subjective, emotional-injury damages for harmed personal property will skew “the underwriting of risk,

the setting of rates, and the payment of claims.” This abrupt imbalance, they argue, will impact not only veterinary insurance, but

insurance more generally, particularly homeowner's and automobile coverage.

61 Roberts, 111 S.W.3d at 118.

62 See Reagan, 804 S.W.2d at 467.

63 Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex.1978).

64 Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985) (allowing a child to recover loss-of-companionship

damages when a parent dies), overruled in part on other grounds by Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 533 (Tex.1998); Sanchez v. Schindler, 651 S.W.2d 249, 252–53 (Tex.1983) (allowing a parent to recover such damages

when a child dies).

65 See Miles, 967 S.W.2d at 382–84 (refusing to allow loss-of-consortium recovery by siblings and step-parents).

66 353 S.W.3d at 580.

67 TENN.CODE ANN. § 44–17–403 (2012).

68 See TEX. CIV. PRAC. & REM.CODE §§ 71.001–.011 (current version of the Texas wrongful-death statute).

69 TENN.CODE ANN. § 44–17–403 (2012).

70 2000 Tenn. Pub. Acts Ch. 762.

71 See Susan Cover, Maine Bill Would Raise Status of Pets That Are Killed, PORTLAND PRESS HERALD (Feb. 15, 2013), http://

www.pressherald. com/politics/bill-would-raise-status-of-pets-that-are-killed_2013–02–16. html.

72 TENN.CODE ANN. § 44–17–403.

73 MD.CODE ANN., CTS. & JUD. PROC. § 11–110 (2012).

74 510 ILL. COMP. STAT. ANN.N. 70/16.3 (West 2013).

75 Aldous Huxley, as quoted in ROBERT ANDREWS, THE CONCISE COLUMBIA DICTIONARY OF QUOTATIONS 83 (1990).

76 Roberts, 111 S.W.3d at 118.

77 Lord Byron, supra note 1, at 293.

78 353 S.W.3d at 580.

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Strickland v. Medlen, 397 S.W.3d 184 (2013)

56 Tex. Sup. Ct. J. 470

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

APPENDIX 4

Texas Bd. of Chiropractic Examiners v. Texas Medical Ass'n, 375 S.W.3d 464 (2012)

375 S.W.3d 464

Court of Appeals of Texas,

Austin.

TEXAS BOARD OF CHIROPRACTIC EXAMINERS, Glenn Parker,

Executive Director, and Texas Chiropractic Association, Appellants

v.

TEXAS MEDICAL ASSOCIATION, Texas Medical Board, and the State of Texas, Appellees.

No. 03–10–00673–CV. | July 6, 2012.

Synopsis

Background: Medical association brought action against Texas Board of Chiropractic Examiners (TBCE) seeking declarations

that various provisions of the scope-of-practice rule that permitted needle electromyography (EMG) and manipulation under

anesthesia (MUA) were invalid because they exceeded the statutory scope of chiropractic and constituted the unlawful practice

of medicine. The District Court, Travis County, Stephen Yelenosky, J., invalidated rules. TBCE appealed.

Holdings: The Court of Appeals, Bob Pemberton, J., held that:

[1] TBCE exceeded its authority in promulgating rules allowing chiropractors to perform needle EMG;

[2] MUA was a surgical procedure excluded from the statutory scope of chiropractic;

[3] rule allowing chiropractors to make certain diagnosis regarding the biomechanical condition of the spine or musculoskeletal

system fell within the statutory scope of chiropractic; and

[4] rule allowing chiropractors to diagnose a subluxation complex of the spine or musculoskeletal system fell within the statutory

scope of chiropractic.

Affirmed in part, reversed in part, and remanded; rehearing denied.

West Headnotes (6)

[1] Health Chiropractors

Health Regulation of Professional Conduct; Boards and Officers

Texas Board of Chiropractic Examiners (TBCE) exceeded its authority in promulgating rules allowing chiropractors

to perform needle electromyography (EMG); some types of EMG needles had beveled, blade-like edges, which were

designed to slice or cut through tissue, and thus, the use of the needles constituted an “incisive” procedure that was

excluded by statute from the scope of chiropractic. V.T.C.A., Occupations Code § 201.002(b–c); 22 TAC § 75.17(a)

(3).

Cases that cite this headnote

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Texas Bd. of Chiropractic Examiners v. Texas Medical Ass'n, 375 S.W.3d 464 (2012)

[2] Health Chiropractors

Health Regulation of Professional Conduct; Boards and Officers

Manipulation under anesthesia (MUA) was a “surgical procedure” excluded from the statutory scope of chiropractic,

and thus, rules promulgated by the Texas Board of Chiropractic Examiners (TBCE) allowing chiropractors to perform

MUA were invalid, where the American Medical Association's annual Current Procedural Terminology (CPT)

Codebook listed MUA as a medical procedure in the surgery section of the Codebook. V.T.C.A., Occupations Code

§§ 201.002(a)(4), 201.154; 22 TAC § 75.17(e)(2)(O).

2 Cases that cite this headnote

[3] Constitutional Law To non-governmental entities

Health Validity

Statute regarding scope of chiropractic practice incorporated the 2004 version of American Medical Association's

(AMA) Current Procedural Terminology (CPT) Codebook in defining “surgical procedure,” rather than the CPT

Codebook in whatever manner the AMA might revise or amend it in the future, and thus, the Legislature did not

improperly delegate its authority in a way that violated the separation-of-powers clause of the Texas Constitution.

Vernon's Ann.Texas Const. Art. 3, § 1; V.T.C.A., Occupations Code § 201.002(a)(4).

Cases that cite this headnote

[4] Health Chiropractors

Health Regulation of Professional Conduct; Boards and Officers

In the absence of a separate notice of appeal filed by medical association, appellate court lacked jurisdiction to

consider medical association's claim that the statutory scope of chiropractic did not include “diagnosing” a condition,

as opposed to analyzing, examining, or evaluating it, where claim sought relief beyond that which association was

afforded in the district court's judgment, which granted motions for partial summary judgment and rendered a take-

nothing judgment as to association's claims for a declaration that the use of “diagnosis” in itself rendered applicable

rule invalid. Rules App.Proc., Rule 25.1(c); 22 TAC § 75.17(d).

2 Cases that cite this headnote

[5] Health Chiropractors

Health Regulation of Professional Conduct; Boards and Officers

Rule promulgated by the Texas Board of Chiropractic Examiners (TBCE) allowing chiropractors to make certain

diagnosis restricted any such diagnosis to the biomechanical condition of the spine or musculoskeletal system, and

thus, the rule fell within the statutory scope of chiropractic. V.T.C.A., Occupations Code § 201.002(b)(1); 22 TAC

§ 75.17(d)(1)(A).

2 Cases that cite this headnote

[6] Health Chiropractors

Health Regulation of Professional Conduct; Boards and Officers

Although the definition of subluxation complex as used in rule promulgated by the Texas Board of Chiropractic

Examiners (TBCE) allowing chiropractors to make certain diagnosis indicated that its existence might have functional

or pathological consequences or that it might affect essentially every part of the body, the rule itself only allowed

chiropractors to render an analysis, diagnosis, or other opinion regarding a subluxation complex of the spine or

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Texas Bd. of Chiropractic Examiners v. Texas Medical Ass'n, 375 S.W.3d 464 (2012)

musculoskeletal system, and thus, the rule fell within the statutory scope of chiropractic. V.T.C.A., Occupations Code

§ 201.002(b); 22 TAC § 75.17(d)(1)(B).

2 Cases that cite this headnote

West Codenotes

Held Invalid

22 TAC § 75.17(a)(3), (e)(2)(O).

Attorneys and Law Firms

*465 Jason D. Ray, Jennifer S. Riggs, Riggs, Aleshire & Ray, P.C., Joe H. Thrash, Assistant Attorney General, Environmental

Protection & Administrative Law Division, Matt C. Wood, Baker Botts, L.L.P., Austin, TX, for appellant.

David F. Bragg, Law Offices of David F. Bragg, P.C., Bastrop, TX, Nancy K. Juren, Angela V. Colmenero, Assistant Attorney

General, General Litigation Division, Donald P. Wilcox, Andrea Schwab, C.J. Francisco, Office of General Counsel, Texas

Medical Association, Austin, TX, for appellee.

*466 Before Chief Justice JONES, Justices PEMBERTON and HENSON.

OPINION

BOB PEMBERTON, Justice.

We withdraw our opinion and judgment dated April 5, 2012, and substitute the following in its place. The motion for rehearing

filed by appellee Texas Medical Association is denied.

The Texas Board of Chiropractic Examiners (TBCE), its executive director, and the Texas Chiropractic Association appeal a

final district court judgment invalidating portions of TBCE's recently adopted administrative rule defining the scope of practice

of chiropractic. See 22 Tex. Admin. Code § 75.17 (2011) (Tex. Bd. of Chiropractic Exam'rs, Scope of Practice). The rule

provisions at issue purport to authorize TBCE's licensees to perform procedures known as manipulation under anesthesia and

needle electromyography, and to “diagnose” certain conditions. See id. § 75.17(a)(3), (c)(2)(D), (c)(3)(A), (d)(1)(A)–(B), (e)

(2)(O). We will affirm the judgment in part and reverse and remand in part.

BACKGROUND

Article XVI, section 31 of the Texas Constitution authorizes the Legislature to “pass laws prescribing the qualifications of

practitioners of medicine in this State,” with the caveat that “no preference shall ever be given by law to any schools of

medicine.” Tex. Const. art. XVI, § 31. In turn, the Legislature has enacted the Medical Practice Act, in which it has delegated

broad authority to the Texas Medical Board (TMB) to regulate the “practice of medicine” in this state, mandated that a person

cannot lawfully “practice medicine” without a TMB-issued license, and imposed rigorous education and training requirements

as a prerequisite to licensing eligibility. See Tex. Occ.Code Ann. §§ 151.001–.056 (West 2004 & Supp. 2011) (Medical Practice

Act); id. §§ 151.003(2) (providing that TMB “should remain the primary means of licensing, regulating, and disciplining

physicians.”), 152.001(a) (West Supp. 2011) (designating TMB as agency with power to regulate the practice of medicine),

153.001(3) (West 2004) (granting TMB the authority to adopt rules to regulate the practice of medicine), 155.001 (West 2004)

(requiring license to practice medicine), 155.003 (West Supp. 2011) (setting forth requirements for license to practice medicine).

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Texas Bd. of Chiropractic Examiners v. Texas Medical Ass'n, 375 S.W.3d 464 (2012)

The Legislature has defined “practicing medicine” under the Medical Practice Act as “the diagnosis, treatment, or offer to treat

a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures

of those conditions” by a person who either “directly or indirectly charges money or other compensation for those services” or

publicly professes to be a physician or surgeon. See id. § 151.002(a)(13).

However, the Legislature has carved out of this broad definition of “practicing medicine”—and, thus, exempted from the

Medical Practice Act's education, training, and licensing standards and the TMB's regulatory authority—a variety of other

health-related fields on which it has imposed different legal requirements and regulations. See id. § 151.052. Such exemptions,

our Texas high courts have reasoned, do not amount to an unconstitutional “preference ... to any school[ ] of medicine” to

the extent the exempted treatment or method does not extend to the “whole body.” See Schlichting v. Texas State Bd. of Med.

Exam'rs, 158 Tex. 279, 310 S.W.2d 557, 564 (1958); Ex parte Halsted, 147 Tex.Crim. 453, 182 S.W.2d 479, 486 (1944). Among

the exemptions, the Legislature *467 has included “a licensed chiropractor engaged strictly in the practice of chiropractic

as defined by law.” See Tex. Occ.Code Ann. § 151.052(a)(3). Chiropractors are currently regulated under chapter 201 of the

occupations code, which defines the permissible scope of chiropractic practice, imposes its own set of educational and licensing

requirements, and delegates authority to TBCE to administer the regime. See id. §§ 201.001–.606 (West 2004 & Supp. 2011).

The net effect of the statutory interplay is that a person licensed by TBCE as a chiropractor but not by the TMB to “practice

medicine” (i.e., as a physician 1 ) can lawfully do things that would otherwise constitute “practicing medicine” as long as he

remains within the statutory scope of chiropractic under chapter 201. However, to the extent he exceeds the statutory scope of

chiropractic, he would subject himself to the Medical Practice Act—and practice medicine unlawfully. See id. §§ 151.002(a)

(13), 201.002; 2 see also Teem v. State, 79 Tex.Crim. 285, 183 S.W. 1144 (1916) (involving prosecution of chiropractor for

unlawfully practicing medicine prior to Texas's legislative recognition and legalization of chiropractic). Another consequence

of this statutory interplay is a long history of professional, scientific, or economic antagonism between chiropractors and the

medical community, and resultant disputes, spanning all three branches of government, regarding where any legal line between

chiropractic and the practice of medicine is or should be. Key participants in these disputes have included the two professional

associations that are parties to this appeal, the Texas Chiropractic Association (TCA) and the Texas Medical Association (TMA),

which advocate on behalf of the respective interests of chiropractors and physicians and their sometimes-competing views of

patient welfare.

Chiropractic was historically rooted in a theory that a wide range of human health problems stem from spinal misalignment

—or a broader category of spinal disorders termed “subluxations”—and can be cured through manipulation of vertebrae. 3

At its 1949 inception, Texas's statutory regime defining and regulating chiropractic reflected *468 this traditional focus on

ascertaining spinal problems and manipulating vertebrae as an intended means of cure. 4 However, over the ensuing decades,

Texas chiropractors evidently came to engage in identifying and treating a wider range of musculoskeletal problems with a wider

range of procedures or methods. In 1989, the Legislature saw fit to take account of these developments through amendments

to the statutory definition of chiropractic practice that expanded the focus of chiropractic beyond the spine to the more general

“biomechanics” of the “musculoskeletal system,” and added somewhat broader language regarding the treatments or methods

chiropractors could perform. See Act of May 12, 1989, 71st Leg., R.S., ch. 227, §§ 1–3, 1989 Tex. Gen. Laws 1005, 1005–

06. 5 Although procedures entailing “surgery, drugs that require a prescription to be dispensed, x-ray therapy, or therapy that

exposes the body to radioactive material” were expressly excluded from the practice, chiropractors were now permitted to use (1)

“objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal

system of the human body” and (2) “adjustment, manipulation, or other *469 procedures in order to improve subluxation or

the biomechanics of the musculoskeletal system.” See id. §§ 1, 3, 1989 Tex. Gen. Laws at 1005–06.

In the aftermath of the 1989 amendments, a number of controversies arose concerning whether particular examination or

treatment procedures exceeded the statutory scope of chiropractic and, relatedly, the extent to which TBCE, by permitting

chiropractors to perform them, was abetting unlawful encroachments upon the practice of medicine. Areas of dispute included

the extent to which chiropractors could perform procedures entailing the insertion of needles into the human body, such as

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Texas Bd. of Chiropractic Examiners v. Texas Medical Ass'n, 375 S.W.3d 464 (2012)

acupuncture and a procedure known as needle electromyography, or “needle EMG.” Simply described, needle EMG entails the

insertion of needle electrodes into a patient's muscle and transmitting a small electric current as a means of evaluating nerve

conductivity. Another subject of controversy was a treatment method known as manipulation under anesthesia, or “MUA.” As

the term suggests, MUA entails a chiropractor's manipulation of the musculoskeletal system while the patient is under general

anesthesia so as to facilitate a greater range of motion than if the patient was feeling pain or resisting. 6

Against this backdrop, in 1995 the Legislature made several important amendments to the statutory scope of chiropractic. These

included specifying that the treatment methods that defined the scope of chiropractic were “nonsurgical, nonincisive procedures,

including but not limited to adjustment and manipulation, in order to improve the subluxation complex or the biomechanics of

the musculoskeletal system,” and likewise excluding “incisive or surgical procedures” from the scope of chiropractic practice.

See Act of May 29, 1995, 74th Leg., R.S., ch. 965, §§ 13, 18, 1995 Tex. Gen. Laws 4789, 4802–03 (current version at Tex.

Occ.Code Ann. § 201.002(b)–(c)). The Legislature defined or described “incisive or surgical procedures” as follows:

In this act, “incisive or surgical procedure” includes but is not limited to making an incision into any

tissue, cavity or organ by any person or implement. It does not include the use of a needle for the purpose

of drawing blood for diagnostic testing.

See id. § 18, 1995 Tex. Gen. Laws at 4803. Additionally, the Legislature prohibited TBCE from “adopt[ing] a process to certify

chiropractors to perform manipulation under anesthesia.” See id. § 19, 1995 Tex. Gen. Laws at 4803. These provisions were

later codified in sections 201.002 and 201.154 of the occupations code. See Tex. Occ.Code Ann. §§ 201.002(a)(3) (“ ‘Incisive

or surgical procedure’ includes making an incision into any tissue, cavity or organ by any person or implement. The term does

not include the use of a needle for the purpose of drawing blood for diagnostic testing.”), .002(c) ( “The practice of chiropractic

does not include ... incisive or surgical procedures.”), .154 (“Notwithstanding any other provision of this chapter, the [TBCE]

may not adopt a process to certify chiropractors to perform manipulation under anesthesia.”). 7

*470 In the aftermath of these changes to the statutory scope of chiropractic, TBCE issued what it styled as informal

“statements” or “memoranda” advising its licensees of its view that the 1995 amendments had not rendered needle EMG,

acupuncture, or MUA beyond the scope of chiropractic practice. 8 Meanwhile, the Attorney General issued opinions reasoning

that, to the contrary, any procedure involving the insertion of a needle into the body (other than the excepted blood draw for

diagnostic use) was “incisive” and thus excluded it from the scope of chiropractic. 9 Applying this reasoning, for example, the

Attorney General opined that acupuncture was an “incisive” procedure and thus excluded from the scope of chiropractic. 10

Thereafter, the Legislature amended the statutory definition of acupuncture, which had previously been stated in terms of “the

insertion of an acupuncture needle,” see Act of May 30, 1993, 73d Leg., R.S., ch. 862, § 37, 1993 Tex. Gen. Laws 3374, 3400,

to refer instead to “the nonsurgical, nonincisive insertion of an acupuncture needle.” See Act of May 28, 1997, 75th Leg., R.S.,

ch. 1170, § 1, 1997 Tex. Gen. Laws 4418 (emphasis added) (current version at Tex. Occ.Code Ann. § 205.001(2)(A) (West

Supp. 2011)); see also Tex. Att'y Gen. Op. No. DM–471 (1998) (concluding that the *471 1997 amendment served to ensure

that the practice of acupuncture would be within the practice of chiropractic, thereby superseding the prior opinion). But the

broader underlying disagreement concerning the use of needles in chiropractic remained, 11 as did the controversy regarding

whether chiropractors could perform MUA. However, due in part to the advisory nature of the administrative pronouncements

and related jurisdictional and procedural limitations, the controversies eluded judicial resolution for several years. 12

The Legislature returned to chiropractic scope-of-practice issues in 2005 when TBCE came up for sunset review. Although it did

not address either needle EMG or MUA through statutory amendments expressly mentioning either procedure, the Legislature

did add a new description of the “surgical procedures” that were excluded from chiropractic:

“Surgical procedure” includes a procedure described in the surgery section of the common procedure

coding system as adopted by the Centers for Medicare and Medicaid Services of the United States

Department of Health and Human Services.

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Texas Bd. of Chiropractic Examiners v. Texas Medical Ass'n, 375 S.W.3d 464 (2012)

See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 1, 2005 Tex. Gen. Laws 3464, 3465 (codified at Tex. Occ.Code Ann. §

201.002(a)(4)). The Legislature also mandated that TBCE “adopt rules clarifying what activities are included within the scope

of the practice of chiropractic and what activities are outside of that scope,” including “clearly specify[ing] the procedures

that chiropractors may perform” and “any equipment and the use of that equipment that is prohibited.” See id. § 8, 2005 Tex.

Gen. Laws at 3466 (codified at Tex. Occ.Code Ann. §§ 201.1525–.1526). Among other implications, this rule-making mandate

ensured that TBCE would issue scope-of-practice directives to its licensees in a form that opponents could test in court to

determine whether they exceeded the underlying statutory scope of chiropractic. See Tex. Gov't Code Ann. § 2001.038 (West

2008) (creating cause of action for declaratory relief regarding “the validity or applicability of a rule” where “it is alleged that

the rule or its threatened *472 application interferes with or impairs, or threatens to interfere with or impair, a legal right or

privilege of the plaintiff”); see also Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Exam'rs, 254 S.W.3d 714,

718 n. 1 (Tex.App.-Austin 2008, pet. denied) (recognizing physician's standing to challenge validity of podiatric board rule that

included ankle within the definition of “foot” and ultimately holding that rule exceeded board's rule-making authority). 13

In response to this rule-making mandate, TBCE promulgated a “Scope of Practice” rule authorizing chiropractors to perform

both needle EMG and MUA. See 22 Tex. Admin. Code § 75.17. 14 Invoking section 2001.038 of the Administrative Procedures

Act, TMA sued TBCE 15

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