By: Danburg H.B. No. 2387
73R5296 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of retail pet vendors and the sale of
1-3 pets; providing administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 10, Health and Safety Code, is amended by
1-6 adding Chapter 829 to read as follows:
1-7 CHAPTER 829. SALE OF PETS
1-8 SUBCHAPTER A. RETAIL PET VENDORS
1-9 Sec. 829.001. DEFINITIONS. In this chapter:
1-10 (1) "Board" means the Texas Board of Health.
1-11 (2) "Department" means the Texas Department of Health.
1-12 (3) "Director" means the director of the Texas
1-13 Department of Health.
1-14 (4) "Pet" means an animal kept as a household pet.
1-15 The term includes a dog, cat, rodent, fish, reptile, or bird. The
1-16 term does not include livestock as defined by Section 161.001,
1-17 Agriculture Code, or a wildlife resource as defined by Section
1-18 61.005, Parks and Wildlife Code.
1-19 (5) "Retail pet vendor" means a person engaged in the
1-20 business of selling pets to the public.
1-21 Sec. 829.002. LICENSE REQUIREMENT; RENEWAL. (a) A person
1-22 may not operate as a retail pet vendor in this state without a
1-23 license issued by the department.
1-24 (b) The license must be renewed on an annual basis.
2-1 (c) An applicant for a license or renewal of a license shall
2-2 pay a fee in an amount set by the board.
2-3 Sec. 829.003. LICENSE APPLICATION AND INSPECTION. (a) Each
2-4 original or renewal application must be accompanied by a statement
2-5 completed, signed, and submitted by the applicant that states that
2-6 the applicant's facility is in compliance with the standards
2-7 established under Section 829.004 and the rules adopted by the
2-8 board to implement this chapter. The department shall furnish a
2-9 copy of the rules to an applicant when the department provides the
2-10 original application.
2-11 (b) The department shall inspect the facility of an
2-12 applicant for a retail pet vendor license before issuing a license.
2-13 If the department determines that the applicant is unable to comply
2-14 with the license standards, the department shall deny the license
2-15 application.
2-16 Sec. 829.004. STANDARDS. (a) The board by rule may
2-17 establish specifications for the standards contained in this
2-18 section.
2-19 (b) A retail pet vendor shall maintain sanitary conditions
2-20 in its facilities, including proper ventilation and adequate
2-21 cleanliness.
2-22 (c) A retail pet vendor shall provide for the humane care
2-23 and treatment of pets, including:
2-24 (1) providing sufficient nutrition and water and
2-25 sufficient space for each pet appropriate to its size, weight, and
2-26 breed;
2-27 (2) protecting the health of the pets in its facility
3-1 by preventing the spread of disease between pets and between pets
3-2 and humans;
3-3 (3) providing appropriate care for young pets; and
3-4 (4) providing veterinary care for pets when needed,
3-5 including treatment of illness and vaccinations.
3-6 (d) A retail pet vendor shall provide a consumer purchasing
3-7 a pet with information on the origin and health history of that
3-8 pet.
3-9 (e) A retail pet vendor may not knowingly sell, trade, or
3-10 exchange any pet that is unhealthy or injured or should otherwise
3-11 not be sold, traded, or exchanged.
3-12 (f) A retail pet vendor may not acquire pets from suppliers
3-13 that participate in inhumane or inappropriate breeding practices.
3-14 Sec. 829.005. INSPECTIONS. (a) The department may inspect
3-15 the facilities of a retail pet vendor on its own initiative or on
3-16 receiving a complaint.
3-17 (b) The department may assess an inspection fee in
3-18 connection with an inspection.
3-19 (c) The department shall complete an inspection report in
3-20 connection with an inspection.
3-21 Sec. 829.006. SUSPENSION OR REVOCATION OF LICENSE. (a) If
3-22 the department determines that a retail pet vendor has violated
3-23 this chapter or a rule adopted by the board under this chapter, the
3-24 department shall notify the retail pet vendor in writing of the
3-25 violation, the actions that must be taken to correct the violation,
3-26 and a reasonable date by which the violation must be corrected.
3-27 Not later than the 7th business day after the date stated in the
4-1 notice on which the violation was to have been corrected, the
4-2 department shall review the status of the violation and the
4-3 corrective action taken.
4-4 (b) If the department determines that the violation has not
4-5 been corrected and poses a risk either to the pets in the facility
4-6 of the retail pet vendor or to consumers purchasing pets from the
4-7 retail pet vendor, the department shall, after notice and hearing,
4-8 suspend the license of the retail pet vendor. Once the license has
4-9 been suspended, the retail pet vendor may not accept any additional
4-10 pets or release any pets from the facility. If the department
4-11 determines after notice and hearing that the health and safety of
4-12 the pets are at risk if they remain at the facility, the department
4-13 may remove the pets from the facility and transfer them to another
4-14 retail pet vendor or to an animal shelter subject to Chapter 823.
4-15 (c) If the department determines that the violation has not
4-16 been corrected but does not pose a risk either to the pets in the
4-17 facility of the retail pet vendor or to consumers purchasing pets
4-18 from the retail pet vendor, the department shall assess an
4-19 administrative penalty under Section 829.031 against the retail pet
4-20 vendor in an amount to be determined by the department, but may not
4-21 suspend the license.
4-22 (d) Suspension of a license continues until the department
4-23 determines that the violation has been corrected. Once the
4-24 violation has been corrected, the department shall reinstate the
4-25 license unless the department determines after notice and hearing
4-26 that there is sufficient cause to revoke the retail pet vendor's
4-27 license.
5-1 (e) A retail pet vendor whose license has been suspended or
5-2 revoked is entitled to judicial review under the substantial
5-3 evidence standard of review in accordance with the Administrative
5-4 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
5-5 Civil Statutes).
5-6 Sec. 829.007. EXCEPTIONS. The licensing requirements of
5-7 this subchapter do not apply to:
5-8 (1) a licensed veterinarian;
5-9 (2) an animal shelter subject to Chapter 823;
5-10 (3) a dog trainer subject to the Private Investigators
5-11 and Private Security Agencies Act (Article 4413(29bb), Vernon's
5-12 Texas Civil Statutes);
5-13 (4) a facility used for breeding, boarding, or racing
5-14 greyhounds subject to the Texas Racing Act (Article 179e, Vernon's
5-15 Texas Civil Statutes); or
5-16 (5) an individual who sells a pet or a litter of pets
5-17 to another individual on an occasional basis.
5-18 Sec. 829.008. FEES. License application and renewal fees
5-19 and inspection fees set by the board under this subchapter shall be
5-20 set in amounts reasonably necessary to defray the department's
5-21 expenses in implementing this chapter.
5-22 (Sections 829.009-829.020 reserved for expansion
5-23 SUBCHAPTER B. PROHIBITIONS
5-24 Sec. 829.021. FLEA MARKETS AND SIMILAR LOCATIONS. A retail
5-25 pet vendor or other person may not sell a pet at a flea market or
5-26 similar location without established facilities.
5-27 (Sections 829.022-829.030 reserved for expansion
6-1 SUBCHAPTER C. ADMINISTRATIVE PENALTIES
6-2 Sec. 829.031. ADMINISTRATIVE PENALTIES. (a) If a retail
6-3 pet vendor or other person violates this chapter or a retail pet
6-4 vendor violates a rule or order adopted by the board under this
6-5 chapter, the board may assess an administrative penalty against the
6-6 person as provided by this section.
6-7 (b) The board shall establish the maximum penalty that may
6-8 be assessed for each violation. Each day a violation continues or
6-9 occurs may be considered a separate violation for purposes of
6-10 penalty assessments.
6-11 (c) In determining the amount of the penalty, the director
6-12 shall consider:
6-13 (1) the seriousness of the violation, including the
6-14 nature, circumstances, extent, and gravity of the prohibited acts,
6-15 and the hazard or potential hazard created to pets or to the
6-16 health, safety, or welfare of the public;
6-17 (2) the damage to property or the environment caused
6-18 by the violation;
6-19 (3) the history of previous violations;
6-20 (4) the amount necessary to deter future violations;
6-21 (5) efforts to correct the violation; and
6-22 (6) any other matter that justice may require.
6-23 (d) If, after investigation of a possible violation and the
6-24 facts surrounding that possible violation, the director determines
6-25 that a violation has occurred, the director may issue a violation
6-26 report stating the facts on which the conclusion that a violation
6-27 occurred is based, recommending that an administrative penalty
7-1 under this section be imposed on the person charged, and
7-2 recommending the amount of that proposed penalty. The director
7-3 shall base the recommended amount of the proposed penalty on the
7-4 seriousness of the violation determined by consideration of the
7-5 factors set forth in Subsection (c).
7-6 (e) Not later than the 14th day after the date on which the
7-7 report is issued, the director shall give written notice of the
7-8 report to the person charged. The notice must include a brief
7-9 summary of the charges, a statement of the amount of the penalty
7-10 recommended, and a statement of the right of the person charged to
7-11 a hearing on the occurrence of the violation or the amount of the
7-12 penalty, or both the occurrence of the violation and the amount of
7-13 the penalty.
7-14 (f) Not later than the 20th day after the date on which
7-15 notice is received, the person charged may accept the determination
7-16 of the director made under Subsection (e), including the
7-17 recommended penalty, or make a written request for a hearing on the
7-18 determination.
7-19 (g) If the person charged with the violation accepts the
7-20 determination of the director, the board shall issue an order
7-21 approving the determination and ordering the payment of the
7-22 recommended penalty.
7-23 (h) If the person charged requests a hearing or fails to
7-24 timely respond to the notice, the director shall set a hearing and
7-25 give notice of the hearing. The hearing shall be held by the State
7-26 Office of Hearings Examiners. The State Office of Hearings
7-27 Examiners shall make findings of fact and conclusions of law and
8-1 promptly issue to the board a proposal for decision as to the
8-2 occurrence of the violation, including a recommendation as to the
8-3 amount of the proposed penalty if a penalty is warranted. Based on
8-4 the findings of fact, conclusions of law, and recommendations of
8-5 the hearing examiner, the board by order may find a violation has
8-6 occurred and may assess a penalty or may find that no violation has
8-7 occurred. All proceedings under this subsection are subject to the
8-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
8-9 Vernon's Texas Civil Statutes).
8-10 (i) The director shall give notice of the board's order to
8-11 the person charged. The notice must include:
8-12 (1) the findings of fact and conclusions of law
8-13 separately stated;
8-14 (2) the amount of the penalty ordered, if any;
8-15 (3) a statement of the right of the person charged to
8-16 judicial review of the board's order, if any; and
8-17 (4) other information required by law.
8-18 (j) Not later than the 30th day after the date on which the
8-19 board's order becomes final as provided by Section 16(c),
8-20 Administrative Procedure and Texas Register Act (Article 6252-13a,
8-21 Vernon's Texas Civil Statutes), the person charged with the
8-22 violation shall:
8-23 (1) pay the penalty amount;
8-24 (2) pay the amount of the penalty and file a petition
8-25 for judicial review contesting either the amount of the penalty or
8-26 the fact of the violation, or both the amount of the penalty and
8-27 the fact of the violation; or
9-1 (3) without paying the amount of the penalty, file a
9-2 petition for judicial review contesting the amount of the penalty,
9-3 the fact of the violation, or both the amount of the penalty and
9-4 the fact of the violation.
9-5 (k) Within the 30-day period, a person who acts under
9-6 Subsection (j)(3) may:
9-7 (1) stay the enforcement of the penalty by:
9-8 (A) paying the amount of the penalty to the
9-9 court for placement in an escrow account; or
9-10 (B) giving to the court a supersedeas bond in a
9-11 form approved by the court that is effective until all judicial
9-12 review of the order or decision is final; or
9-13 (2) request the court to stay enforcement of the
9-14 penalty by:
9-15 (A) filing with the court a sworn affidavit of
9-16 the person stating that the person is financially unable to pay the
9-17 amount of the penalty and is financially unable to give the
9-18 supersedeas bond; and
9-19 (B) delivering a copy of the affidavit to the
9-20 director.
9-21 (l) If the director receives a copy of an affidavit under
9-22 Subsection (k)(2), the director may file with the court, not later
9-23 than the fifth day after the date the copy is received, a contest
9-24 to the affidavit. The court shall hold a hearing on the facts
9-25 alleged in the affidavit as soon as practicable. The person who
9-26 files an affidavit has the burden of proving that the person is
9-27 financially unable to pay the amount of the penalty and to give a
10-1 supersedeas bond.
10-2 (m) If the person does not pay the amount of the penalty and
10-3 the penalty is not stayed, the director may refer the matter to the
10-4 attorney general for enforcement.
10-5 (n) Judicial review of the order of the board:
10-6 (1) is instituted by filing a petition as provided by
10-7 Section 19, Administrative Procedure and Texas Register Act
10-8 (Article 6252-13a, Vernon's Texas Civil Statutes); and
10-9 (2) is under the substantial evidence rule.
10-10 (o) If the person paid the amount of the penalty and if that
10-11 amount is reduced or is not assessed by the court, the court shall
10-12 order that the appropriate amount plus accrued interest be remitted
10-13 to the person. The rate of interest is the rate charged on loans
10-14 to depository institutions by the New York Federal Reserve Bank and
10-15 shall be paid for the period beginning on the date the penalty is
10-16 paid and ending on the date the penalty is remitted. If the person
10-17 gave a supersedeas bond, the court shall order the release of the
10-18 bond:
10-19 (1) without further action by the person, if the
10-20 penalty is not assessed by the court; or
10-21 (2) on payment of the penalty in the amount determined
10-22 by the court.
10-23 (p) A penalty collected under this section shall be remitted
10-24 to the comptroller for deposit to the credit of the general revenue
10-25 fund.
10-26 SECTION 2. This Act takes effect September 1, 1993. A
10-27 person acting as a retail pet vendor is not required to obtain a
11-1 license under Chapter 829, Health and Safety Code, as added by this
11-2 Act, until January 1, 1994.
11-3 SECTION 3. The importance of this legislation and the
11-4 crowded condition of the calendars in both houses create an
11-5 emergency and an imperative public necessity that the
11-6 constitutional rule requiring bills to be read on three several
11-7 days in each house be suspended, and this rule is hereby suspended.