Originally Published in: State Bar of Texas
Published on: December 2023
Written By: Shelby Bobosky and Randy Turner
The 88th Texas Legislature made significant changes to existing laws and local ordinances that will change the trajectory of the animal law landscape for years to come.
Dog and Cat Breeder Bill
In 2011, Texas passed a law regulating large-scale cat and dog breeders titled the Dog or Cat Breeders Act, found in Chapter 802 of the Texas Occupations Code. While the 2011 law prevented animal cruelty at licensed facilities, loopholes allowed numerous large-scale breeders to avoid inspections and basic standards of care. SB 876 was passed this session, requiring breeders with five or more breeding females to be licensed. Previously, only breeders with 11 or more breeding females were regulated. According to a Texas Department of Licensing and Regulation, or TDLR, study, unlicensed breeding facilities are responsible for most cruelty and neglect complaints. SB 876, effective September 1, 2023, also removes the need to prove that a breeder sold 20 or more animals in a calendar year. This legislation will enable the Texas Licensed Breeders Law to oversee the industry as originally intended.
In late 2022, confusion erupted over whether trap-neuter-return, or TNR, of unowned community cats should be considered “abandonment” under Section 42.092 et. seq. of the Texas Penal Code. TNR is widely regarded as a humane method of stabilizing the feral cat population by humanely trapping them, transporting them to veterinary clinics for sterilization and vaccination, and then tipping their ear as a sign they have been treated. TNR programs save thousands of Texas cats from euthanasia annually, and the prospect of prosecuting TNR providers for abandonment threatened to end successful programs across the state.
HB 3660, effective June 10, 2023, updates Section 42.092(a) of the Texas Penal Code by defining a “Trap-Neuter-Return Program” as a means of nonlethal population control and adding a defense to prosecution for returning TNR cats to their outdoor homes. As a result, the law now clearly distinguishes between abandoning an owned companion animal versus releasing a TNR cat. However, the unreasonable abandonment of an owned companion animal is still punishable by a fine of up to $4,000, jail time of up to a year, or both.
Fake Service Animals
In recent years, there has been a sharp increase in the number of non-disabled people misrepresenting their pet dogs as service animals so their pets can accompany them in public spaces. Increased incidents of pet dogs distracting or attacking service animals have diminished the quality of life for disabled people who rely on service animals to navigate daily life. After negative encounters with imposters, some businesses have denied legitimate service animals access to their establishments, and significant numbers of service dog teams have begun avoiding public spaces for fear of being accosted by untrained pets.
HB 4164, effective September 1, 2023, amends Section 121.006 of the Human Resources Code by clarifying the language describing a service animal and strengthening the penalties for misrepresenting an animal as a service animal when they are not specially trained to help a person with a disability. As a result of HB 4164, the fine for asserting an untrained pet is a service animal increases from $300 to $1,000, and the offender may be required to perform 30 hours of community service for organizations serving persons with disabilities.
Preemption of City Animal Ordinances
HB 2127, effective September 1, 2023, preempts Texas’ municipalities from regulating activity under several sections of the Texas code unless that authority is expressly granted under another statute. HB 2127 amends Chapter 229 of the Local Government Code by prohibiting municipalities from adopting or enforcing regulations concerning “the breeding, care, treatment, or sale of animals or animal products, including a veterinary practice, or the business’s transactions if the person operating that business holds a license for the business that is issued by the federal government or a state.” While HB 2127 bars local government from passing future ordinances of this type, pet store ordinances adopted before April 1, 2023, remain enforceable until a statewide law regulating pet store sales is passed.
Animal Abusers Prohibited From Owning Pets
As of May 2023, 39 states have laws commonly called “possession bans” to prohibit persons convicted of animal cruelty from owning companion animals for a fixed period of time. The most common length of time a person is prohibited from possessing animals after conviction is five years. Some states go so far as to limit the ability of offenders to work with or ever own a companion animal again. HB 598 amends Chapter 42 of the Texas Penal Code by adding Section 42.107, which makes it a crime for a person previously convicted of animal cruelty to possess a non-livestock animal (i.e., companion animals such as a cat or a dog) for a period of five years after conviction. HB 598 also enhances the penalty for repeat violations under Section 42.107 from a Class C misdemeanor to a Class B. HB 598, effective September 1, 2023, disrupts an offender’s access to animals for a significant period of time.
HJR 126, dubbed the “Right-to-Farm Amendment,” amends the Texas Constitution to enshrine a right to engage in commercial agricultural activities on private property inside city limits. HJR 126 includes raising livestock and poultry, harvesting timber, and managing wildlife, and this proposition will be on the November 7, 2023, Texas ballot. If a majority of voters approve the proposition to amend the Texas Constitution, cities will not be able to regain control over agricultural operations in their jurisdictions by amending or repealing state laws.
Even if the amendment falls short of the necessary votes to amend the Texas Constitution by adding a “right-to-farm,” the Legislature codified a “right-to-farm in the city” by passing HB 1750. Historically, Texas cities with populations of 5,000 or more could regulate agricultural operations in city limits, such as livestock and poultry operations, so long as those regulations did not contradict state law. If a city annexed territory with preexisting agricultural operations, the city could regulate those operations after demonstrating that the regulation was necessary to protect the public.
HB 1750, effective September 1, 2023, amends the Texas Agriculture Code so that the requirement for cities to prove local regulation is necessary to protect the public is no longer limited to the newly annexed territory. Instead, agricultural operations cannot be regulated locally unless the city health department issues a report showing the operation poses a dire hazard to people in the immediate vicinity and the city council passes a resolution authorizing the regulation. HB 1750 preempts cities’ ability to proactively prevent harm by requiring municipalities to show harm after the fact.
Regarding ordinances regulating the care of animals, HB 1750 preempts cities from passing or enforcing regulations that prohibit “generally accepted agricultural practices” for animals in agricultural operations. Instead, HB 1750 directs the Texas A&M AgriLife Extension Service to detail which practices are generally accepted in a forthcoming manual. Two provisions in HB 1750 are specific to companion animals. First, HB 1750 adds veterinary clinics to the list of businesses protected by the “right-to-farm” because they service agricultural operations. Second, HB 1750 prohibits cities from enforcing local tethering ordinances for dogs guarding livestock. HB 1750 does not invalidate SB 5, the Safe Outdoor Dogs Act passed in 2021. Like all other dogs tethered outdoors in Texas, livestock guard dogs must be provided adequate shelter and drinkable water and cannot be tethered by chains.
HB 2308 works with HB 1750 by limiting the circumstances under which agricultural operations can be sued. In particular, HB 2308, effective September 1, 2023, amends the Texas Agriculture Code so that parties bringing nuisance lawsuits against agricultural operations must show clear and convincing evidence of harm. If they lose in court, the party that brought the lawsuit must pay the operation’s attorneys’ fees and court costs. Additionally, a party must file the nuisance lawsuit within one year of the operation’s start date. Thus, agricultural operations in cities operating for more than a year cannot be sued for nuisances such as odor and runoff from animal waste or toxic chemicals.