Does a Texas wildlife rehabilitation permit let the holder keep any dangerous wild animal without registering it?

TX AG Opinion GA-0654: Does a rehab permit cover any dangerous wild animal?

Plain-English summary

A Texas House committee chair asked whether someone who holds a rehabilitation permit from the Parks and Wildlife Department is exempt from the dangerous-wild-animal registration rule in Health and Safety Code section 822.102(a)(5) for dangerous animals the permit does not cover.

Subchapter E of chapter 822 governs dangerous wild animals and provides that a person may not own, harbor, or have custody of one without a certificate of registration from an animal registration agency. The chapter's definition of "dangerous wild animal" is broad, listing lions, tigers, cougars, leopards, bears, coyotes, chimpanzees, gorillas, and many others, along with hybrids. Section 822.102 lists exceptions to the registration requirement. Some apply to entities (government agencies, research facilities, zoos); others apply to the animals themselves. Exception 5 says the subchapter does not apply to an injured, infirm, orphaned, or abandoned dangerous wild animal while being rehabilitated by a licensed veterinarian, a humane society or animal shelter, or a person who holds a rehabilitation permit issued under subchapter C, chapter 43 of the Parks and Wildlife Code.

The key was the scope of that Parks and Wildlife rehabilitation permit. Under section 43.022, a permit is required to handle "protected wildlife," which section 43.021 defines as indigenous mammals, birds, reptiles, and similar native species. So a rehabilitation permit covers only animals indigenous to Texas. By contrast, chapter 822's list of dangerous wild animals includes many non-native species like tigers and gorillas. The requestor noted only four listed dangerous animals (cougars, bobcats, bears, and coyotes) are native to Texas.

The opinion rejected the literal, in-isolation reading that exception 5 would let any rehabilitation permit holder keep any dangerous wild animal. Reading the exception in context of subchapter E as a whole, the opinion explained that the chapter exists to protect public health and safety and to ensure humane treatment, and that the rehabilitation permit is specific to named species. It also pointed to section 822.116(a), which says subchapter E does not affect the applicability of other laws, so the exception cannot expand a permit beyond what the Parks and Wildlife Code authorizes. Reading it otherwise would let someone permitted to rehabilitate a songbird care for a tiger or gorilla with no relevant expertise or facilities, which the Legislature could not have intended. The opinion concluded the rehabilitation permit holder is not exempt from registration for dangerous wild animals the permit does not cover, that is, animals not indigenous to Texas.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Health and Safety Code chapter 822, subchapter E and the Parks and Wildlife Code rehabilitation-permit provisions may have changed since 2008. Confirm current law before relying on this analysis.

Who this opinion affected (as of 2008)

Wildlife rehabilitation permit holders: The opinion concluded their exemption from the dangerous-wild-animal registration rule reached only the species their permit actually authorized, which are native Texas animals, not exotics like tigers or gorillas.

Animal registration agencies (local animal control or sheriffs): The opinion meant they could still require registration of a non-native dangerous animal held by a rehabilitator whose permit did not cover that animal.

Owners and keepers of exotic dangerous animals: The opinion meant a rehabilitation permit was not a route around chapter 822's registration, insurance, and confinement requirements for animals outside the permit's scope.

Common questions

Does a wildlife rehab permit let me keep a tiger or other exotic without registering it?
No. The opinion concluded the exemption in section 822.102(a)(5) reaches only animals the rehabilitation permit covers, and that permit covers only species indigenous to Texas, not non-native animals like tigers or gorillas.

Which dangerous animals can a Texas rehabilitation permit cover?
Only protected wildlife indigenous to Texas. The requestor noted that among the listed dangerous wild animals, only cougars, bobcats, bears, and coyotes are native to Texas.

Why didn't the AG read the exception literally?
The opinion explained that read in isolation the exception might seem broad, but read in context of the whole subchapter, and given section 822.116(a)'s instruction that the subchapter does not affect other laws, it cannot expand a permit beyond what the Parks and Wildlife Code authorizes.

What does registration require?
Chapter 822 conditions keeping a dangerous wild animal on a certificate of registration, plus liability insurance and humane confinement requirements, the opinion noted.

Background and statutory framework

Subchapter E of Health and Safety Code chapter 822 bars a person from owning, harboring, or having custody of a dangerous wild animal without a certificate of registration from an animal registration agency, and defines "dangerous wild animal" to include lions, tigers, cougars, bears, coyotes, chimpanzees, gorillas, and other listed animals and their hybrids (Tex. Health & Safety Code Ann. §§ 822.101(1), (4), 822.103(a) (Vernon 2003)). Section 822.102 lists exceptions, including exception 5 for an injured, infirm, orphaned, or abandoned dangerous wild animal being rehabilitated by a veterinarian, a humane society or animal shelter, or a holder of a rehabilitation permit under subchapter C, chapter 43 of the Parks and Wildlife Code (Tex. Health & Safety Code Ann. § 822.102(a)(1)-(3), (a)(5) (Vernon 2003 & Supp. 2007)). That rehabilitation permit, required to handle "protected wildlife," covers only indigenous species (Tex. Parks & Wildlife Code Ann. §§ 43.021, 43.022(a) (Vernon 2002); 31 Tex. Admin. Code §§ 69.44(a), 69.46(a) (2008)). Statutes are read in context and as a whole, not in isolation (Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002) (citing section 311.011(a) of the Code Construction Act); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)). Subchapter E exists to protect public health and safety and ensure humane treatment, and does not affect the applicability of other laws (Tex. Health & Safety Code Ann. §§ 822.104(b)-(d), 822.107, 822.110, 822.111(a), 822.116(a)-(b) (Vernon 2003)). Read in that context, exception 5 reaches only the dangerous wild animals a chapter 43 permit actually authorizes.

Citations

Statutes:

• Tex. Health & Safety Code Ann. §§ 822.101(1), (4), 822.102(a)(1)-(3), (a)(5), 822.103(a), 822.104(b)-(d), 822.107, 822.110, 822.111(a), 822.116(a)-(b) (Vernon 2003 & Supp. 2007)
• Tex. Parks & Wildlife Code Ann. §§ 43.021, 43.022(a) (Vernon 2002)
• Tex. Gov't Code Ann. § 311.011(a)
• 31 Tex. Admin. Code §§ 69.44(a), 69.46(a) (2008)

Cases:

• Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0654
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0654.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

August 14, 2008

The Honorable Tony Goolsby
Chair, Committee on Administration
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0654

Re: Whether the holder of a rehabilitation permit from the Parks and Wildlife Department is exempt from the application of section 822.102(a)(5) of the Health and Safety Code with regard to dangerous wild animals not covered by the permit (RQ-0679-GA)

Dear Representative Goolsby:

You ask whether the holder of a rehabilitation permit from the Parks and Wildlife Department is exempt from the application of section 822.102(a)(5) of the Health and Safety Code with regard to dangerous wild animals not covered by the permit.

Subchapter E, chapter 822 of the Health and Safety Code relates to "dangerous wild animals." Section 822.103(a) thereof declares that "[a] person may not own, harbor, or have custody or control of a dangerous wild animal for any purpose unless the person holds a certificate of registration for that animal issued by an animal registration agency." TEX. HEALTH & SAFETY CODE ANN. § 822.103(a) (Vernon 2003). Chapter 822 defines a "dangerous wild animal" to include a lion, tiger, ocelot, cougar, leopard, cheetah, jaguar, bobcat, lynx, serval, caracal, hyena, bear, coyote, jackal, baboon, chimpanzee, orangutan, gorilla, "or any hybrid" of one of these animals. Id. § 822.101(4).

Another section of chapter 822 lists a number of exceptions to the registration requirement of section 822.103(a), among them governmental agencies, research facilities, and zoos. Id. § 822.102(a)(1)-(3) (Vernon Supp. 2007). Whereas the exceptions for governmental agencies, research facilities, and zoos apply to those entities directly, other exceptions apply to the animals themselves. One of these exceptions states that subchapter E does not apply to: "(5) an injured, infirm, orphaned, or abandoned dangerous wild animal while being rehabilitated, treated, or cared for by a licensed veterinarian, an incorporated humane society or animal shelter, or a person who holds a rehabilitation permit issued under Subchapter C, Chapter 43, Parks and Wildlife Code." Id. § 822.102(a)(5) (emphasis added) [hereafter "exception 5"].

A rehabilitation permit issued under subchapter C, chapter 43 of the Parks and Wildlife Code is granted with respect to a limited class of animals. Subchapter C, chapter 43 relates to "Permits for Scientific Research, Zoological Collection, Rehabilitation, and Educational Display," and section 43.022 thereof declares that "[n]o person may collect, hold, possess, display, transport, release, or propagate protected wildlife for the purposes of this subchapter without a permit issued under this subchapter." TEX. PARKS & WILDLIFE CODE ANN. § 43.022(a) (Vernon 2002). Section 43.021 defines the term "protected wildlife" as:

all indigenous mammals, indigenous birds, indigenous reptiles, indigenous amphibians, indigenous fish, and other indigenous aquatic life the taking, collecting, holding, possession, propagation, release, display, or transport of which is governed by a provision of this code other than this subchapter or by a [Parks and Wildlife] commission rule adopted under any provision of this code other than this subchapter and includes endangered species.

Id. § 43.021. Thus, under section 43.022, only "indigenous mammals" may be the subject of a rehabilitation permit.

While a rehabilitation permit issued under section 43.022 of the Parks and Wildlife Code pertains only to "indigenous mammals," chapter 822 of the Health and Safety Code pertains to "dangerous wild animals," a class that includes mammals that are not indigenous, such as tigers and gorillas. It has been suggested that section 822.102(a)(5) of the Health and Safety Code, by declaring that the subchapter is not applicable to an animal in the care of a person who holds a rehabilitation permit issued under subchapter C, chapter 43 of the Parks and Wildlife Code, would exempt such an individual from the registration requirement of chapter 822 of the Health and Safety Code for any of the dangerous wild animals listed therein and would thereby entitle a person with a rehabilitation permit to possess or care for a dangerous wild animal of any kind. See Request Letter, supra note 1, at 2.

Although such a construction of section 822.102 could follow from a literal reading of exception 5 in isolation, we believe that it is contrary to the legislative intent of the statute when read in context of chapter 822, subchapter E as a whole. See Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002) (citing section 311.011(a) of the Code Construction Act for the proposition that words and phrases in statutes should be read in context and stating, "we consider a statute as a whole, not its provisions in isolation"); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) ("We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone."). The manifest purpose of chapter 822, subchapter E is to protect the public's health and safety and provide a humane environment for dangerous wild animals. See TEX. HEALTH & SAFETY CODE ANN. §§ 822.104(b)-(d) (application requirements for dangerous wild animal), 822.107 (liability insurance required for property damage and bodily injury caused by dangerous wild animal), 822.110 (attack by animal; escape of animal; liability), 822.111(a) (power to promulgate rules for confining animals that protect the public's health and safety, prevent escape by animals, and provide a safe and humane environment for an animal) (Vernon 2003). According to an analysis prepared by the House Research Organization, supporters of the bill that enacted chapter 822 said that it "would balance the need to protect the public safety while preserving the right to own dangerous wild animals." HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. H.B. 1362, 77th Leg., R.S. (2001).

Moreover, the chapter 43 permit granted is specific to an animal or species. Rules of the Parks and Wildlife Department describe the process for obtaining a rehabilitation permit. Rule 69.44(a), for example, provides that "[a]ctivities authorized by a permit issued under this section shall be made only by the permittee(s) or subpermittee(s) named on the permit." 31 TEX. ADMIN. CODE § 69.44(a) (Tex. Parks & Wildlife Dep't, Wildlife Rehabilitation Permits, General Provisions) (2008). Rule 69.46 sets forth the requirements relating to permit applications. Such applications must be "made on forms supplied by the department." Id. § 69.46(a) (Application for Permit). The permit application, in turn, requires an applicant to "list the species you propose to rehabilitate," and to "state animal handling care experience." See TEX. PARKS & WILDLIFE DEP'T, WILDLIFE REHABILITATION PERMITS, WILDLIFE REHABILITATION APPLICATION, Form PWD 1052-W7000, available at http://tpwd.state.tx.us/business/permits/land/wildlife/#rehab (last visited July 22, 2008). An issued rehabilitation permit specifically states, as item number 8: "The following wildlife species are authorized by this permit to be received and possessed for rehabilitation purposes only." See TEX. PARKS & WILDLIFE DEP'T, REHABILITATION PERMIT (example) (on file with the Opinion Committee). Finally, subchapter E's protective regulations are cumulative of other state laws and are not intended to change other laws, particularly those addressing similar subjects. Section 822.116(a) expressly provides: "This subchapter [E] does not affect the applicability of any other law, rule, order, ordinance, or other legal requirement of this state or a political subdivision of this state." TEX. HEALTH & SAFETY CODE ANN. § 822.116(a) (Vernon 2003); see also id. § 822.116(b) ("This subchapter does not prevent a municipality or county from prohibiting or regulating by ordinance or order the ownership, possession, confinement, or care of a dangerous wild animal.").

Consistent with the purpose and operation of subchapter E, exception 5 cannot be read to alter or expand the controls and requirements to which persons are subject under "other laws," "rules," or "legal requirements," such as subchapter C, chapter 43 of the Parks and Wildlife Code. In particular, such a conclusion would authorize a person who holds a permit to rehabilitate a songbird to care for a tiger or a gorilla without the necessity of obtaining a certificate of registration under section 822.103. The Legislature, which as we have observed, enacted chapter 822 in part to protect the public from dangerous wild animals, could not have intended to entrust the care of a particular dangerous wild animal to a person who had no expertise in the handling of that animal nor the proper facilities to confine it.

Exception 5, when read in context of subchapter E as a whole and consistent with that portion of the Parks and Wildlife Code to which it refers and the permits granted pursuant thereto, does not allow a permit holder to care for the entire group of dangerous wild animals listed in section 822.101(4) of the Health and Safety Code and outside the scope of a chapter 43 permit. Rather, it is limited to those dangerous wild animals for which a rehabilitation permit has been issued under the authority of section 43.022 of the Parks and Wildlife Code. We conclude, then, that the holder of a rehabilitation permit from the Parks and Wildlife Department is not exempt from the application of section 822.102(5) of the Health and Safety Code with respect to animals not covered by that permit.

SUMMARY

The holder of a rehabilitation permit from the Texas Parks and Wildlife Department is not exempt from the application of section 822.102(5) of the Health and Safety Code with respect to animals not covered by that permit, i.e., those animals that are not indigenous to Texas.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee