Texans Fight State Law|on Dogs & Cats

AUSTIN (CN) - A new state law allows inspectors to conduct unconstitutional, warrantless searches of pet breeders' homes, pet owners, breeders and veterinarians claim in Federal Court.

RPOA Texas Outreach and three individual plaintiffs want the 2011 "Dog or Cat Breeders Act" enjoined as "unconstitutional and invalid."

RPOA apparently stands for the Responsible Pet Owners Alliance.

The law at issue, HB 1451 from the 2011 legislative session, was codified as Chapter 802 of the Texas Occupations Law. It was signed into law by Gov. Rick Perry, and took effect Sept. 1. It established new rules and regulations on "the breeders of certain dogs and cats."

The RPOA claims the law violates the Equal Protection Clause of the 14th Amendment, "in that breeders of dogs and cats intended to be used for certain purposes are treated differently than other breeders of dogs and cats without a rational basis for such a distinction."

They sued Texas and Frank Denton, Chairman of Commissioners of the Texas Department of Licensing and Regulations.

"In spite of RPOA's best efforts, TDLR included many of the most harmful and constitutionally offensive rules," the complaint states.

RPOA claims that the rules contain no "reference to a warrant requirement for the inspectors to enter the breeder's facility."

"In fact, section (c) authorizes an inspector to provide no advance notice to a breeder of an inspection if the inspector determines it inappropriate to provide such advance notice. This section fails to provide any parameters or guidelines for the inspector's determination, which appears to be limitless."

The rules allow an inspector to enter a breeder's private residence to inspect "the animals or other property relevant to the care of the animals," but does not require a warrant if the breeder refuses to allow entry, RPOA says.

The law also contains peculiar and unjust exceptions and quasi-definitions, the complaint states: "Section 802.003 of the Act reads that it does not apply to an animal regulated under the Texas Racing Act. And, 802.005 specifically exempt dogs bred with the intent to be primarily used for herding livestock, hunting (including tracking, chasing, pointing, flushing or retrieving game) or competing in field trials, hunting tests or other similar organized performance events. Nowhere in the Act is any reason written for a disparate treatment of breeders of different types of dogs or a disparate treatment of breeders of identical breeds of dogs with different intended uses.

"Moreover, several sections of the Act are vague and open to multiple interpretations. In Section 802.004, the Act reads that 'each adult intact female possessed by a person engaged in the business of breeding animals for direct or indirect sale ... is presumed to be used for breeding purposes unless the person

establishes to the satisfaction of the department based on the person's breeding records or other evidence reasonably acceptable to the department, that the animal is not used for breeding.' The Act sets no standards for overcoming this presumption and simply leaves it in the hands of the department to make its own judgment."

The plaintiffs "contend that upon finding that the Act contains unconstitutional provisions, this court should declare the entire Act as unconstitutional and invalid. The Act contains no severability language that empowers the judiciary to look at the Act as a piecemeal set of laws as opposed to one legislative enactment," the complaint states.

"Second, the provisions about which plaintiffs complain are so central to the Act that the Texas Legislature would not have passed the Act without them."

RPOA co-plaintiffs Teresa M. Arnett, Sharleen Pelzl and James O. Smith want enforcement enjoined.

They are represented by Steven Thornton with Westerburg & Thornton of Dallas.

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