Congress Blocks Slaughter of Horses in United States (Again)

The resumption of commercial horse slaughter in the United States was blocked on Friday, January 17, when President Obama signed a congressional budget bill that removed funding for USDA inspection of horse slaughter plants. This action on the part of Congress and the President effectively takes horse slaughter in this country off the table for now.

A similar federal budget measure passed in 2006 shuttered the industry in 2007. Money for federal inspections of horse meat was restored in 2011, and several proposed plants have received USDA permits. However, court orders in suits brought by animal rights activists and others have stopped any horse slaughter plants from opening.

The latest of these lawsuits is a suit in New Mexico state court brought by New Mexico Attorney General Gary King. King sued Valley Meat Co., a permit holder who wished to convert its former beef slaughterhouse into an equine processing plant, after the U.S. Court of Appeals for the 10th Circuit ruled that Valley Meat could commence slaughter operations. That suit is still pending. 

Blair Dunn, attorney for Valley Meat and another plant in Missouri, told news sources, “I don’t see them opening now. No matter what, they are not going to violate the law.” However, Dunn says Valley Meat will continue to wage a legal fight to convert its cattle processing plant to the slaughtering of horses.  According to Dunn, the federal move to withhold money for meat inspections could cause U.S. trade violations.  Valley Meat is also trying to disqualify Judge Matthew Wilson, the New Mexico district judge presiding over the state court suit, because of comments posted by horse slaughter opponents on a Facebook page for the judge’s election campaign.

Related Posts:

10th Circuit Allows Horse Slaughter Plants to Commence Operations

Humane Society, et al File Appeal after Federal Judge Dismisses Horse Slaughter Suit

Federal Court Blocks Horse Slaughter at Two Plants

Federal Judge Rules Twinspires.com Cannot Accept Bets from Texas

The United States District Court of the Western District of Texas (Austin Division) recently held that Churchill Downs subsidiary website, Twinspires.com, is prohibited from accepting wagers from persons living in Texas.

Churchill Downs brought action against the Texas Racing Commission seeking a declaration that the Texas Racing Act’s in-person requirement, under which only a person inside the enclosure where a race meeting was authorized may wager on a race, violated the dormant Commerce Clause. The dormant Commerce Clause precludes states from enacting laws or regulations that excessively burden interstate commerce. 

The Texas Racing Commission is a state agency charged with enforcing the statutory and regulatory provisions of the Texas Racing Act. Churchill Downs moved for permanent injunction to prevent the Texas Racing Commission from enforcing the Act to prohibit Texans from placing wagers on Twinspires.com. The in-person requirement has been on the books in Texas since 1986.  Nevertheless, Twinspires.com continued to accept wagers from Texans through its website.

The court, Judge James R. Nowlin, presiding, found that the Act did not violate the dormant Commerce Clause and entered judgment for the Texas Racing Commission. With respect to the legitimate state interests furthered by the in-person requirement, Judge Nowlin remarked,

[E]very regulatory challenge that gambling has always posed to the state has been made that much more daunting by the advent of the internet. Gambling has always been addictive, but before the internet, at least the addicts had to go to the trouble of driving somewhere to place his bet. The internet allows the addict to get his fix 24/7/365, all without leaving the comfort of his own home . . . Along the same lines, underage patrons looking to get in on the action have always tried to evade detection with fake IDs and the like, but with the advent of the internet, all they need to place a bet is Dad’s credit card and date of birth . . . Finally, gambling—especially horse racing—has always attracted crooked individuals hoping to clean their money. With the advent of the internet, though, criminal elements are better able to hide behind the anonymity afforded by the computer screen.”

Churchill Downs has appealed this case to 5th Circuit Court of Appeals.

Case InformationChurchill Downs, Inc. v. Trout, No. 1:12-CV-00880-JRN, 2013 WL 5799694 (W.D. Texas Sept. 23, 2013).

Cat Breeder Jim Smith Explains Evils of Texas Puppy Mill Bill In Response to Texas Tribune Article

Audrey White of the Texas Tribune authored this news story concerning the federal lawsuit over the Texas Puppy Mill Bill. The article reports that the Humane Society of the United States and the Texas Humane Legislation Network filed an amicus brief in the suit supporting the Bill.

The story contains a quote from a representative of the Humane Society’s Texas Branch, as well as some quotes from two breeders who are not involved in the lawsuit. Neither of the breeders quoted in the article expressed the due process concerns raised by the plaintiffs in the suit.

With respect to the plaintiffs, the article states, “calls to plaintiffs in the case were not immediately returned.”

Jim Smith, a cat breeder and one of the plaintiffs in the case, posted this response in the comments section of the online article this morning. According to Smith,

I am one of the plaintiffs in the Puppy Mill and Kitten Mill case. I was called by Ms. White and asked for comments, but I told her that because there was legal actions pending, I needed to clear things with my attorney first. He told me that there was no reason why I couldn't address the issues, so I called Ms White back (several times), got no answer, and she never returned my call. I called her back within an hour or two of her call.

Mr. Smith went on to explain his due process concerns, saying,

There are several reasons why this is bad law. First and foremost, even a meth dealer or porn publisher is afforded more rights under Texas Law than a Kitten or Puppy Breeder. The law is written in such a way that agents from the Texas Department of Licensing and Regulations can enter my property, with or without me being present, enter my private residence, confiscate my computer, files or other property, or my animals simply on their own recognizance. They do not need a warrant, and there is no oversight by any actual law enforcement agency or court. Once they seize my animals or property, there is no appeals process developed for me to protest their actions. The TLDC can also employ "Third Party Inspectors", such as members of Animal Rights organizations to do these functions for it.

Smith also hinted that legislation of this nature could eventually effect the equine and ranching industries, stating,

HB 1451 is part of a nationwide push by animal rights organizations to deny us the ability to keep pets, have horses and ranching, rodeos and many other traditional Texas activities because it offends their vegetarian and vegan beliefs. It's their attempt to enforce their personal and religious beliefs on the rest of us.

Horse breeders, what do you think of the new Puppy Mill Bill? I welcome you to post your thoughts and insights in the comments section to this post.

Texas "Puppy Mill Bill" Challenged in Federal Court

The constitutionality of the hotly-contested “Puppy Mill Bill” passed in the 2011 Texas Legislature has been challenged in a federal suit filed in Austin on October 1, 2012.  A copy of the complaint can be downloaded here.

The new law, commonly referred to as the “Puppy Mill Bill”, was passed as HB 1451 and codified as Chapter 802 of the Texas Occupations Code . The title given to the codified act is “The Dog and Cat Breeders Act”. As part of the Act, the Texas legislature charged the Texas Department of Licensing and Regulation with the task of creating a regulatory and licensing scheme for dog and cat breeders in Texas. The rules related to the Act are set forth in Title 16, Texas Administrative Code, Chapter 91.

The plaintiffs in this week’s suit challenging the Act and related rules include Responsible Pet Owners’ Association Texas Outreach Inc.; Teresa Arnett, a Boston Terrier breeder in Rosansky; Sharleen Pelzl, a cat breeder in Dripping Springs; and James Smith, a cat breeder in Georgetown. The plaintiffs are represented by Steven Thornton of the firm of Westerburg & Thornton, P.C. in Dallas.

Could horse breeders be the next target of "Puppy Mill Bill" type legislation?

Included among the plaintiffs’ complaints about the “Puppy Mill Bill” and related rules are the following:

·       The Act allows inspectors to enter breeders’ facilities without a warrant. 

·       The Act allows inspectors to enter the private residence of a breeder without first obtaining a warrant.

·       The Act exempts dogs bred primarily to be used for purposes such as herding livestock, hunting, field trials, and other performance events. But the Act does not give a reason for a disparate treatment of breeders of different types of dogs, nor does it specify whether it is the intent of the breeder or the end purchaser that controls the analysis.

·       The Rules allow applications for breeders’ licenses to be denied with no possibility of appeal.

·       The Rules related to licensure of breeders require the successful completion of a “criminal background check.” However, the Rules do not specify what constitutes successful completion.

Animal cruelty and animal neglect have been illegal in the state of Texas for a long time. Some question why Act was even necessary, while others view the Act as nothing more than a vehicle to allow rescue groups (with the help of the authorities) to enter property of others and seize animals without a warrant. I believe that if such regulations are allowed to stand, it is only a matter of time before the animal welfare lobby will push for similar regulations applicable to horse breeders.

DVM News Magazine and others have expressed reservations about the “unintended consequences” of “puppy mill laws” passed in other states.  And just this morning, some pure bred dogs were abandoned in a rural area near Flower Mound around 1:00 AM. Some have suggested that the “Puppy Mill Bill” is to blame because these new laws are so draconian that no commercial breeder is able to comply with them.

Updates will be posted as this case progresses.

Why Banning Horse Slaughter is Such a Terrible Idea

Author’s Note: This post is purely editorial in nature. The views expressed in this post are 100% mine. I have not canvassed my clients or the other members of my firm to get their take on horse slaughter, nor do I intend to do so. My views are not necessarily the views of my clients, my firm, or the other lawyers who practice at my firm.

First off, I cannot express in words how much I detest the word “ban.” I dislike it so much that I wish Merriam-Webster would take it out of the dictionary. Why? Because “it ought to be banned!” has become the battle cry of the self-righteous busybodies, some of whom are multi-million dollar concerns, and others who are just individuals who have far too much spare time on their hands. The do-gooders who relish the phrase “it ought to be banned!” are known to meddle in other people’s business, usually with the goal of using our government to force their will upon us, their fellow citizens. 

Photo:  A horsemeat sandwich, as served by street vendors in Venice, Italy

Let’s for a moment put the word “ban” in perspective. Killing people is not “banned” in the United States. Our citizens may kill another person in self-defense. Police officers and members of our Armed Forces may kill people, and do so regularly. Similarly, the use and distribution of powerful, addictive narcotics is not “banned” in this country. Doctors administer and prescribe opioids and other powerful drugs daily. Yet some people think there out to be an outright “ban” on horse slaughter in this country. 

The road to Hell is paved with good intentions. That's about where we’re headed if our federal government kowtows to the radical powerful anti-horse-slaughter lobby, and enacts an outright prohibition of horse slaughter.

Unintended Consequences of the Closure of the U.S. Plants

To generally summarize this June 2011 Government Accountability Office report, the horse market tanked after the closure of the U.S. horse slaughter plants in 2007. The GAO gave multiple reasons for the decline—including the drought and the economy, but the cessation of domestic slaughter was clearly indicated as a factor in the report. Veterinarians surveyed by the GAO reported that horse welfare declined across the board, with a 50% or greater increase in abandonment and neglect cases in some states. The nationwide capacity of horse rescue facilities is about 6,000 head of horses, and the vast majority of these are already full. Legislative prohibitions on using federal funds for inspecting horses prior to slaughter impede USDA’s and APHIS’s ability to oversee the transport and welfare of U.S. horses intended for slaughter. The number of horses shipped to Mexico and Canada for slaughter increased by 660% and 148%, respectively, after the closure of the slaughter plants. This resulted in total distance travelled by slaughter horses to increase by approximately 200 miles. Once a horse crosses the border into Canada or Mexico, APHIS no longer has authority to oversee their welfare, and our laws related to the humane slaughter of animals no longer apply.

While some anti-slaughter advocates place blame on market forces and irresponsible owners, PETA generally agrees with the GAO’s conclusion that horse suffering has increased due to the closure of the slaughter plants. But what is PETA’s answer? “Let’s ban horse slaughter…and let’s also ban the export of horses to other countries for slaughter!” There is certainly a lot of banning going on with this seemingly untenable position. 

Flawed Logic

I never understood why is it suddenly inhumane to slaughter a horse, but not other mammalian livestock such as a pig, cow, or sheep.  One reason opponents give is that horses are "pampered", and are used to being treated as pets.  Even if this were true of all horses, what of the FFA and 4-H show animals that go to slaughter each year?  There is no outcry to ban the slaughter of these animals.  Further, it is also puzzling to me that the majority of people who believe horse slaughter is barbaric support abortion in humans.

Fact: there is an unwanted horse problem in this country. There are simply some horses who are not adoptable—perhaps because they are dangerous, or perhaps because the cost to “repurpose” them and care for them throughout their life far outweighs their potential usefulness to humans. Some anti-horse-slaughter advocates outright deny the unwanted horse problem. They argue that virtually every horse is adoptable, and that the ones who are not adoptable should be euthanized by a veterinarian and disposed of properly.  Some statistics on the high cost of euthanasia and proper disposal have been published here.  In general, anti-slaughter advocates are short on pragmatic or realistic solutions to the unwanted horse problem.

If virtually all horses were adoptable, there would be no need for horse slaughter. The U.S. slaughtered approximately 105,000 horses in 2006, the last full year the Texas and Illinois plants were operational. See GAO report at 8. This is a manageable number, especially when you look at the amount of money that has been poured into the “horse slaughter ban” efforts. The Humane Society of the United States, which is just one of the many animal rights advocacy groups in this country, had approximately $150 million in revenue for 2010 alone. These numbers, on their face, seem to indicate that the HSUS could have, possibly single-handedly, rehomed those horses that were adoptable, and caused those that were not adoptable to be euthanized and properly disposed of. Meanwhile, the HSUS has paid lawyers and lobbyists untold amounts to promote its political agendas such as a federal ban on horse slaughter and horse export for slaughter.  

According to this HSUS publication, horse slaughter was costly to taxpayers. But even if the slaughter companies paid all costs associated with horse slaughter through a fee-for-service program or the like, HSUS says it should still be banned. But the HSUS has not published estimated figures on what it would cost our taxpayers to enforce their proposed ban on the export of horses for slaughter. It is common knowledge that we cannot even control the movement of illegal immigrants or illegal drugs across our borders, and we’re spending millions of taxpayer dollars on those efforts. Also, the HSUS is silent on the amount of domestic revenue and jobs that were lost when the slaughterhouses shut their doors.

Obstacles to Re-Implementation of Horse Slaughter in the U.S.

If I were an investor looking to put up the capital to build a new horse slaughterhouse in this country, I would first determine solutions to the serious economic and political hurdles currently facing this industry in the United States. Namely,

·       New European Union regulations that will become effective on July 31, 2013 will require all non-EU countries to provide lifetime medication records for all horses entering the EU food chain. Furthermore, horses that have been given certain commonly-used drugs, such as phenylbutazone, must be excluded from the EU food chain.

·       The threat of domestic terrorism on the slaughter facilities by animal rights activists. If you do not believe this problem exists, a federal law was enacted to address the issue.

·       The possibility of future legislative changes that may directly or indirectly hinder operations. The federal government has already pulled the rug out from under the slaughterhouses once. There’s no telling whether they’ll do it again.

·       The ever-presence of the shrill, combative, mostly female anti-slaughter advocates who will stop at nothing to turn public opinion against the slaughterhouses, no matter where they decide to set up shop. If you do not believe these women exist, I urge you to do a Google search for “horse slaughter”, or check out some of the comments to this previous post.  While the presence of these "hecklers" is really nothing more than an annoyance, the unwitting or naive in local communities sometimes give in to them---if for no other reason than to shut them up.

Conclusion

If the European Union no longer wants our horsemeat, and the Asian or South American demand is not enough to sustain the industry, the free market economy will bring an end to horse slaughter. The anti-slaughter advocates agree—indeed, this is the only real economic issue they have latched onto. But if this is something that will go away on its own, why do we need a ban? Your guess is as good as mine. I would think that given the amount of money and time the anti-slaughter camp has spent to bring about anti-slaughter legislation, they can’t stop now. It would be unthinkable to them that they threw away millions trying to force their will upon us, instead of using their time and money to save the adoptable horses that either died of neglect or were inhumanely butchered in Mexico as a result of their efforts.

It is a myth that horse suffering has decreased now that slaughter is no longer an option. I applaud organizations such as the self-sustaining equine sanctuaries and rescues, veterinary associations, and the Unwanted Horse Coalition for doing what they can to reduce the amount of unwanted horses. If we want to improve horse welfare, we should be spending our time and money helping these organizations help horses—not on political agendas. 

And if we must regulate the industry, let’s keep regulating horse transportation and institute methods of humane slaughter such as those proposed by Temple Grandin for the cattle industry. But we can only control how horses are treated as long as we allow them to be slaughtered within our borders.

Jane Smiley, contributor to the New York Times Horse Racing Blog, may have put it best when she said:  

We must recognize that there is a market for horse meat (not only for human consumption, but also for zoo and circus-animal consumption) and that in a starving world, a source of protein should not go to waste for sentimental reasons. It is sentimentality that has resulted in profounder cruelty to our horses - because we don’t accept that they are animals and have a utilitarian purpose, we hide from what happens to them, and so what happens to them happens in secret.

Related Posts

Current Status of Federal Laws Affecting Horse Slaughter

Legal Background of Horse Slaughter in Texas

Current Status of Federal Laws Affecting Horse Slaughter

I have been working on a post outlining my personal stance on whether horse slaughter should be resumed in the United States. Last week, we discussed the legal history of horse slaughter in Texas. To provide a more complete backdrop for my upcoming post, I am providing for you this week a summary of federal laws addressing horse slaughter.  For as the old cliché goes, you can't know where you are going until you know where you have been. 

Starting in Fiscal Year 2006, Congress included language in annual appropriations bills that prohibited the use of federal funds for inspection by the U.S. Department of Agriculture for horses in transit to slaughter and at slaughter facilities. At that time, the three remaining U.S. slaughterhouses included Dallas Crown, Inc. in Kaufman, Texas, Beltex Corporation in Fort Worth, Texas, and Cavel International, Inc. in DeKalb, Illinois. These facilities stayed open by paying for these inspections under a voluntary fee-for-service program implemented by USDA in February 2006.

Photo:  A plate of horse sashimi, as served at restaurants in Japan.

In 2007, Dallas Crown and Beltex shut down their operations in Texas due to a decision of the 5th Circuit Court of Appeals delivered in January of that year. See this post for details.

Utilizing the USDA fee-for-service program, Cavel continued its operations in Illinois for a few more months in 2007 until the following things happened: 1) in March 2007, a federal district court determined that it is illegal for slaughterhouses to pay the USDA for horsemeat inspections; 2) in September 2007, the 7th Circuit Court of Appeals upheld an Illinois law prohibiting slaughter of horses for human consumption. This essentially shut down the industry in the US, because meat cannot be sold for human consumption without being inspected.

From Fiscal Year 2008 to Fiscal Year 2011, Congress included a prohibition on the use of federal funds for implementation of the fee-for-service program in each annual Agricultural Appropriations Bill. 

In 2011, the Government Accountability Office issued this report detailing some of the negative consequences caused by the closure of the slaughter plants. Shortly thereafter, Congress removed its prohibition on the use of federal funds to inspect horses at slaughter for Fiscal Year 2012. 

Since last year, new horse slaughterhouses have been proposed in New Mexico, Missouri and Oregon, and laws that would permit them to be built more easily have been proposed in Montana, North Dakota, and Wyoming.

In June 2012, an amendment to the Fiscal Year 2013 Agricultural Appropriations Bill passed the Appropriations Committee. This amendment seeks to expressly eliminate federal funding for USDA inspections of horse slaughter facilities for Fiscal Year 2013. The bill as amended must now be approved by the full House and then go to the Senate.

Although the domestic slaughter of horses for human food has stopped for the time being, USDA’s Slaughter Horse Transport Program continues to operate. Established in 2001, the program is intended to ensure that horses travelling to slaughter are fit to travel and handled humanely en route. Among other things, the program collects and reviews shipping documents and inspects rigs used to transport these horses. Prior to 2012, because of the prohibition on using federal funds for inspecting horses transported to slaughter, the transport program was not able to inspect the condition of horses designated for slaughter during their transport. I have not yet been able to locate any data suggesting that this has changed due to the absence of the funding prohibition in the 2012 Appropriations Bill.  

Legal Background of Horse Slaughter in Texas

Did you know that horse slaughter for human consumption has technically been illegal in the State of Texas from 1949 to the present? The laws surrounding horse slaughter in the United States are complicated, and they vary from state to state. Below is an overview of the legal history of horse slaughter in Texas, from 1949 to present.

Photo:  Silhouette of a horse before a North Texas sunset

1949: 51st Texas Legislature passes a law that makes it a criminal offense for a person to 1) sell horsemeat as food for human consumption; 2) possess horsemeat intending to sell it as food for human consumption; and 3) transfer horsemeat to a person who intends to sell it as food for human consumption or who knows or reasonably should know that the person receiving the horsemeat intends to sell it as food for human consumption. See Article 719e of Vernon’s Texas Penal Code (now repealed). The 51st Legislature placed jurisdiction to investigate within the Board of Health’s powers as a matter related to the public health. However, Article 719e did not expressly authorize any particular entity to enforce the law.

1950: A news article quotes the “state health officer,” Dr. George W. Cox, as stating that the Department of Health was prosecuting “every violator we could find.” Health Officer Tells How to Stop Horse Meat Sales, Dallas Morning News, Mar. 17, 1950.

1952: Another news article quotes the same Dr. Cox, “state health officer”, as saying that sausage containing horsemeat “can’t be sold in Texas”. Neigh? Nay! Texans Can’t Horse Around with Sausage, Dallas Morning News, May 23, 1952.

1973The substance of Article 719e was transferred to Texas Revised Civil Statutes and again placed with statutes related to public health. It was not substantively changed.

Mid 1970’s: Horse slaughter companies Beltex (Fort Worth, Texas) and Dallas Crown (Kaufman, Texas) began marketing and processing horse-meat intended for human consumption in foreign countries. 

1991The statute prohibiting horse slaughter was codified as Chapter 149 of the Texas Agriculture Code (where it resides today). It was not substantively changed. Nothing in the current statute expressly authorizes any entity or agency to enforce the law.

2002: Texas State Representative Tony Goolsby requested that the Texas Attorney General clarify the enforceability of Chapter 149, which on its face prohibits the processing, sale or transfer of horsemeat for human consumption. AG John Cornyn issued this opinion, stating that Chapter 149 is applicable to the slaughterhouses in Texas and was not preempted by federal law. According to the opinion, Texas Department of Agriculture has no authority to investigate or assist in prosecuting violations of Chapter 149, but local prosecutors may investigate and prosecute alleged violations of Chapter 149.

2007: When the slaughterhouses learned of the 2002 AG opinion, and that Beltex and Dallas Crown were facing imminent prosecution, they brought a case in the United States District Court for the Northern District of Texas, seeking a declaration of legal rights and responsibilities and to enjoin any potential prosecution of them under Chapter 149. The slaughterhouses generally asserted that Chapter 149 had been implicitly repealed and/or it was preempted by federal law. The trial court permanently enjoined the state from prosecuting the slaughterhouses under Chapter 149. On appeal, the 5th Circuit Court of Appeals vacated the trial court’s judgment and injunction in favor of the slaughterhouses, finding that Chapter 149 had not been repealed, was not preempted by federal law, and that it did apply to the slaughterhouses. See Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir. 2007). As a result of this decision, Beltex and Dallas Crown shut down their operations in Texas.

2008: Attorney General Greg Abbott issued this opinion, stating that it is illegal under Chapter 149 for a foreign corporation to transport horsemeat for human consumption in-bond through Texas for immediate export to foreign destinations. Abbott made clear that neither federal law nor the U.S. Constitution invalidated this application of Chapter 149.

July 2012:  As discussed in this prior post, the Texas Senate Committee on Agricultural and Rural Affairs met to hear testimony on the economic impact of the closure of Texas's slaughterhouses.  According to this news story, some believe that a repeal of Chapter 149 could be on the table next legislative session.

Unless Chapter 149 is repealed or revised, horse slaughter remains illegal in Texas—though it can ostensibly be carried out in other U.S. jurisdictions barring the passage of any federal law that directly or indirectly prohibits it. Whether U.S. horse slaughter, in my opinion, remains a viable option from a legal prospective will be the topic of an upcoming post.

Horse Slaughter Among Agenda Items at Texas Senate Committee Meeting

The Texas Senate Committee on Agriculture and Rural Affairs met this Tuesday to discuss, among other things, the impact of to the closure of horse slaughter facilities on the agricultural sector of the Texas economy. A copy of the meeting notice can be downloaded here.

The Committee heard both invited and public testimony on the issue of whether or not horse slaughter should be resumed in Texas. 

Texas Capitol Building at Austin, Texas

Included among those who gave testimony were:

  • A representative of the Humane Society of the United States;

I viewed part of the meeting from my office via the live streaming video recording (an archive of which can be viewed on this page). There was a full house in attendance. Many attendees showed up to state their opposition to horse slaughter due to their belief that the process is inherently inhumane. Their general response to the economic issues was that people should be breeding fewer horses, and that irresponsible breeders and owners are at fault for the unwanted horse problem. 

The horse industry groups generally presented evidence indicating the negative economic impact that the closure of the slaughter plants has had on the industry. The horse industry groups also presented studies evidencing the increased suffering of horses caused by the closure of the slaughter plants due to neglect and transport to Mexico for slaughter.

The veterinary associations' general stance on this issue is as follows:  Horse processing is not the ideal solution for addressing the large number of unwanted horses in the U.S.  However, if a horse owner is unable or unwilling to provide humane care and no one is able to assume the responsibility, euthanasia at a processing facility in a manner designated as humane by the American Veterinary Medical Association is an acceptable alternative to a life of suffering, inadequate care or abandonment.

I think it is a good sign that our Senate was interested in hearing testimony from knowledgeable individuals and groups on this very important issue. 

Horse Slaughter Legislation Update

As of this week, a New Jersey bill prohibiting the slaughter of horses for human consumption has passed both houses of the New Jersey Legislature. If Governor Chris Christie signs the bill, New Jersey will become the fifth state to proscribe horse processing within its borders. California, Texas, Oklahoma, and Illinois have enacted legislation prohibiting horse processing in those states.

As discussed this prior post, there is no longer any federal law prohibiting the funding of USDA inspections for horse slaughter plants. This, in essence, created the opportunity for horse slaughter plants to re-open in states that have not passed laws prohibiting the practice.  However, that could change next year. 

An amendment to the Fiscal Year 2013 Agricultural Appropriations Bill passed the full Appropriations Committee this week. The amendment—introduced this month by Congressman Jim Moran (D-VA)—seeks to expressly eliminate federal funding for USDA inspections of horse slaughter facilities. The bill must now be approved by the full House and then go to the Senate.

Moran had introduced similar language during the debate over the 2012 Agricultural Appropriations Bill. Though the version of the bill including the language was adopted in the House, it was later removed shortly before the 2012 bill became law.

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Recap of the 2012 Animal Law Institute

Last Friday, for the fourth or fifth time, I attended the annual Animal Law Institute.  The Institute is a CLE program put on by Animal Law Section of the State Bar of Texas.  It moves around each year, but this year it was at Texas Wesleyan School of Law here in Fort Worth.

You may be wondering, “what is animal law, and is equine law a part of animal law?” I have been practicing equine law for years, and I still don’t really know the answer. According to Wikipedia,

animal law is a combination of statutory and case law in which the nature—legal, social or biological—of nonhuman animals is an important factor. Animal law encompasses companion animals, wildlife, animals used in entertainment and animals raised for food and research. The emerging field of animal law is often analogized to the environmental law movement 30 years ago.

Most of the speakers at the Institutes I have attended in the past have seemed to generally focus on 1) animal rights/welfare issues; and 2) issues related to animal rescues and public shelters. 

My equine law practice, by way of contrast, is primarily focused on business issues. That said, I have advised several equine-related 501(c)(3) nonprofit organizations.

Rick and I at Will Rogers Equestrian Center with two of our animals. 

This year’s Institute covered a lot of animal welfare/rights issues, but it also added an overview of equine law by Dawn Reveley, and another presentation on vet malpractice defense into the mix.   Below is a recap:

  • Will Potter, a journalist from Washington, DC, discussed the Animal Enterprise Terrorism Act. This is a 2006 federal law with which I was not previously familiar. According to Potter, the law was pushed by animal industry groups and corporations to target animal rights protestors by labeling their activities as "terrorism".  Read more about it on Will Potter’s blog, Green is the New Red. To loosely quote Potter’s [very sound] advice to would-be animal rights protestors: “Come up with a plan and get organized before you stage your protest, so people won’t think you’re crazy!” 
  • Don Feare, an attorney from Arlington, Texas, shared some excellent information for attorneys who represent animal rescue groups. Some main points include (equine nonprofits, listen up!) 1) animal welfare groups should incorporate as a nonprofit corporation to limit liability; 2) liability insurance is a necessity, especially if the organization is doing public adoption events; and 3) adoption contracts should make clear when title to the animal passes to the new owner and should be signed by all adult members of the household at which the animal is being placed.
  • Scott Heiser, a Portland-based attorney with the Animal Legal Defense Fund, talked about how his nonprofit organization helps local prosecutors win animal cruelty cases (both through financing and by helping try cases). Heiser discussed the “business records” exception to the hearsay rule, as it applies to veterinary reports in criminal animal abuse cases. In general, vet reports are not admissible in lieu of testimony under the business records exception if the vet report was “prepared specifically for use at trial.”
  • Nicole Paquette, Texas Senior State Director with the Humane Society of the United States (HSUS) in Washington, DC, covered the new laws from 2011 Texas Legislature that the HSUS believes benefit animals. These bills include 1) HB 1451, the “Puppy Mill Bill”--requiring licensing and inspection of dog and cat breeders who maintain 11 or more female breeding animals; 2) HB 1103--“Responsible Pet Owner Classes” required for convicted animal abusers; and 3) HB 2471--the “Good Animal Samaritan Bill”, which limits civil liability of people who render aid to an injured or distressed animal.
  • Dr. Don Ferrill (remember him from this post?) talked about how to successfully defend veterinarians in malpractice and negligence cases. His advice to plaintiffs: “Always pay your vet bill before you sue your vet.”

Watch this website for information on next year's Animal Law Institute.

Are Employers Immune from Liability for Employees' Horse-Related Injuries in Texas?

In general, a defendant can only be immune from suit in a Texas horse-related injury case if the plaintiff was a “participant in a farm animal activity or livestock show” when the injuries occurred.

Chapter 87 of the Texas Civil Practice & Remedies Code (the “Act”) was amended in 2011 to, among other things, include farm animals other than equines. However, the “participant” requirement did not change in 2011.  Neither the former nor the current version of the Act specifically states whether or not employees of equine activity sponsors are considered “participants in a farm animal activity or livestock show” under the Act.

The 1st Court of Appeals in Houston is the only Texas court to have taken up this issue (Dodge v. Durdin, 2005).  In that case, Deborah Dodge sued her employers, Magestic Moments Stables, et al, after a horse kicked her in the abdomen as she was administering paste-wormer at the direction of her employer. Dodge claimed that she incurred $4,000 in medical bills as a result of her injuries, and that her employers’ negligence was the proximate cause of her damages. 

Majestic Moments claimed that Dodge's suit was barred by the Act.  The trial court agreed, and dismissed the case.  On appeal, the 1st Court of Appeals disagreed that the Act applied to an employer / employee relationship.

This warning sign should not be a "news flash" to anyone.

Citing its review of legislative intent, together with the duties assigned to Texas employers under the Texas Labor Code, the 1st Court of Appeals held that, “the Equine Act applies to consumers and not to employees and that Dodge is therefore not a ‘participant’ under the Equine Act.” 

Workers’ compensation did not cover Dodge’s alleged injures. Unlike employers in many states, Texas employers are able to opt out of the workers’ compensation system. For more information, see this post.

In Dodge, the 1st Court of Appeals noted that the only other Texas court to have addressed the definition of “participant” was the Corpus Christi Court of Appeals in Johnson v. Smith (2002). In that case, the Corpus Christi court acknowledged that an independent contractor—not an employee—in charge of breeding and handling stallions was a participant under the Act.  The 1st Court of Appeals distinguished the Johnson case from the Dodge case on its facts.

Neither the Dodge nor the Johnson case were appealed to the Supreme Court. 

The Texas Supreme Court has not yet addressed whether or not an employee or independent contractor who is injured while working with horses on their employer’s premises is a “participant” for purposes of the Act.  Until the Supreme Court takes up this issue or the Legislature clarifies it, this issue continues to be somewhat unsettled in Texas. Texas equine businesses should therefore not rely upon the Act to provide immunity from suits brought by employees or independent contractors. 

Businesses can take several steps to minimize liability risk in this area, including 1) procuring insurance to cover employee or independent contractor injuries; 2) having employees or independent contractors sign liability releases; and 3) forming limited liability entities through which employees and independent contractors are retained.

A special thank you to reader Lois Mermelstein, Esq. of Austin, Texas for submitting this topic suggestion.

2011 Equine Law Year in Review

Happy New Year, Equine Law Blog readers!  Here's to the hope that you and yours find all opportunities for joy and happiness, as well as prosperity in abundance in 2012.

2011 brought a number of significant legal events / changes that will affect many people involved in the Texas horse industry.  The "Top Seven of 2011" (it rhymes!), are as follows:

1.  The Texas Supreme Court decided a case involving the Texas Equine Limitation of Liability Act.

  • Loftin vs. Lee was the case.  The opinion was handed down on on April 29, 2011.
  • The Supreme Court upheld the defendant's immunity pursuant to the Act.
  • This was the first time the Texas Supreme Court has taken up a case concerning the scope of the Act.
  • Related blog post

2.  The Texas Legislature expanded the immunities provided under the Texas Equine Limitation of Liability Act to cover all farm animals and expanded immunity to cover veterinarians.

  • Governor Perry singned the bill into law on June 17, 2011, and it became effective immediately upon signing.
  • Warning signs should be updated to reflect the new law.
  • The new law is called the Texas Farm Animal Limitation of Liability Act.
  • Related blog posts can be found here and here.
     

3.  The Texas Legislature passed a new sales tax exemption certificate requirement for the purchase of tax-exempt agricultural goods.

  • The bill was passed during 2011 legislative session, but first became effective on January 1, 2012.
  • All persons purchasing tax-exempt ag supplies must now apply for a registration number with the Texas Comptroller.
  • Horse and feed sales are still exempt without a number, but some training and boarding businesses may not qualify for a registration number that is now required to purchase other goods.
  • Related blog post.

4.  The Texas Legislature passed a bill affecting equine dentistry.

  • There is (as of September 1, 2011) a licensing requirement for lay dentists in Texas.
  • Related blog posts can be found here and here.
     

5.  Congress and President Obama passed a budget bill that removed ban on federal funding of horse slaughter inspectors.

  • Bill was signed by the President on November 18, 2011.
  • Horse slaughter is, by virtue of this bill, again a possibility in some U.S. states.
  • Related blog post.
     

6.  100% Bonus Depreciation ended on December 31, 2011

  • Some believe this tax benefit caused a surge in sales for yearling markets last year.
  • For new goods or qualified horses purchased on January 1, 2012 and after, 50% bonus depreciation will be available instead of the 100% rate that was available in 2011.
  • Related blog post.

7.  New medication rules were adopted by a number of horse organizations

  • Performance and race horse medications were a hot topic in 2011.  Among other organizations, the Breeders' Cup decided to phase out the use of Lasix, and NRHA initiated random testing protocols and adopted a new medications rule in 2011.
  • Related blog posts can be found here and here.

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American Horse Council Opposes Changes to Federal Child Labor Regulations

On December 15, 2011, the American Horse Council (AHC) issued a news release publicizing its opposition to the Department of Labor's (DOL) proposed child labor regulations concerning children working on farms because of its potential negative impacts on the horse community. 

The AHC was organized in 1969 to represent the horse industry in Washington before Congress and the federal regulatory agencies.  It is a non-profit corporation that represents all segments of the equine industry.

According to the AHC, the proposed rule would effectively bar minors under the age of 16 from working in most capacities in agriculture, especially around horses and other livestock.

On November 30, 2011, the AHC filed comments with the DOL expressing its concerns with the proposed rule.  A link to the AHC’s full comments can be found here

According to the AHC:

The proposed rule would expand the number and scope of Hazardous Occupation Orders (HOs) to such an extent that young people not working on a farm or ranch owned by their parents would be precluded from working in agriculture.  The proposed rule would prohibit herding livestock on horseback or foot in confined spaces such as pens and corrals.  Furthermore, the DOL would prohibited youth from engaging or assisting in almost all common animal husbandry practices, such as branding, breeding, dehorning, vaccinating, castrating livestock, or treating sick or injured animals including horses.  All these activities combined represent a great deal of the work performed in association with livestock.”  

The proposed DOL rule does include an exemption for children working on farms and ranches owned by their parents, but the AHC believes this exemption is too narrow in scope:

The AHC does not believe the proposed rule recognizes the reality that many family farms and ranches are held as LLCs or partnerships with other family members.  We believe there is no reason to believe it has ever been the intent of Congress to excluded farms owned by two siblings or multiple generations of a family from the parental exemption.  Doing so would impact thousands of family farms and ranches and unnecessarily deprive young people of the opportunity to work on a family farm or ranch and all the benefits associated with such work…”

Texas Farm Bureau has also recently published these blog posts featuring the concerns of family farmers who believe the proposed rule would rob many children of the valuable lessons that they could learn working in agriculture and around livestock:

DOL Could Change the Value of Hard Work

New Rules Robbing Our Kids?

In an age where most kids in the United States spend most of their free time in front of a TV set, an I-Pad or a computer, it is hard for me to imagine that so many kids are getting hurt working on farms that a new federal law is required to protect them from “exploitation”.  Do any of you readers know what the real motivation behind this proposed rule really is?  Please feel free to leave your ideas in the comments section.

In next week’s post, I’ll cover the most significant legal developments of 2011 that affect Texas horse owners.  I wish all of you a very Merry Christmas and safe travels this weekend!

Multiple Agendas Revealed in Legal Battle over New York Carriage Horse Industry

Most of you have already read about the heated legal battle over the horse-drawn carriage industry in New York City, where some groups have been pushing for decades to outlaw carriage rides. On its face, the battle seems to be about whether or not the industry is inherently cruel or dangerous for the horses. But more recently, some facts have surfaced pointing to other interests and agendas that may be fueling the push to banish the carriage industry from New York.

Emily B. Hager authored a story published last week in the New York Times that delves into underlying interests of some who are attempting to ban carriage rides in New York City. A link to the article can be found here.

One issue raised in the Times article are allegations of foul play related to the ASPCA’s involvement in the efforts to outlaw the horse-drawn carriage industry. According to Ms. Hager’s article, Dr. Pamela Corey (chief equine veterinarian for the ASPCA), said her supervisors pressured her to distort her findings about the death of a carriage horse in order to turn public opinion against the carriage industry. After Dr. Corey spoke out, the ASPCA suspended her. Dr. Corey has since filed a complaint with the state attorney general’s office, in which she states that she had been pressured on several occasions to slant her professional opinion to help achieve a ban.

Ms. Hager also points out that while the ASPCA is one of the groups leading the effort to ban horse-drawn carriages, it is also one of three entities that regulate the carriage industry in New York. 

The ASPCA’s president, Ed Sayres, is also reported in the Times to have teamed up with Stephen Nislick, chief executive of the development company Edison Properties, to develop a plan to replace carriage rides with electric-powered replicas of antique cars. Sayres and Nislick are reported to have started a nonprofit organization, known as NY-Class, that has collected more than 55,000 signatures backing city ordinances that would end the carriage horse industry in New York. NY-Class was allegedly started up through a $400,000 donation from the ASPCA and a contribution from Mr. Nislick.

With respect to these potential conflicts of interest, Ed Sayres is quoted in the Times as saying, “I don’t see it as a conflict. If we don’t bring forward the risk factor that we are observing, then it would be negligent.”

Real estate developers (including Mr. Nislick) are alleged to be involved in the movement to outlaw the carriage industry because they covet the land on the Far West Side where the horses have long been stabled.  

According to Ms. Hager’s article, some carriage owners acknowledge carrying out a campaign to infiltrate the activist groups and secretly record their strategy sessions. In one recording, Mr. Nislick is said to describe efforts to gain the support of city politicians by giving them campaign contributions. 

The carriage industry is reported to have filed its own complaints with the city and state agencies against the ASPCA and NY-Class.

The Times article includes some stats on drivers’ earnings, which reportedly range from $40,000 to $100,000 annually, depending primarily on whether they own their horses, whether they work the day or night shift, and how bad the weather and economy are.  If you know how much it costs to live in Manhattan, you know that even $100,000 per year before taxes can be hard to live on there. One would think that the last thing the carriage drivers would want to do is abuse or mistreat their horses if their livelihood depended upon them.

These latest allegations are definitely thought-provoking.  One must wonder whether those who donate money to the ASPCA hoping to fund food, medicine, and shelter for unwanted animals know that the Society has spent at least $400,000 on this political campaign.

Also, should the ASPCA still be one of the regulatory bodies governing the NY carriage industry, given the conflicts and allegations that have now arisen?

Finally, what would happen to the horses if those pushing for a ban were successful? According to Dr. Nena Winand, an equine veterinarian from upstate New York who is a member of the American Association of Equine Practitioners, “If we banned the carriage horse industry tomorrow, they would go straight to slaughter. There is no big field out there, there is no one to pay the bills.”

As discussed in this prior post, mistreatment of or cruelty to horses is already illegal in State of New York. Given these latest allegations, this fact does cause one to ponder whether animal welfare is the real impetus behind the movement to outlaw the carriage industry in New York City.

Obama Lifts Horse Slaughter Ban--PETA Says It's A Good Idea

Pigs are flying, or they must be somewhere in the world. President Barack Obama (while campaigning for his second term in office, I might add) has signed a bill essentially re-legalizing horse slaughter, and PETA is happy about it!  Had you told me this a couple of weeks ago, I would have thought these events as likely an Occupy Wall Street protester taking an investment banking job at Goldman Sachs.

The recent bill reinstituting federal funding for horse slaughter plant inspections has been covered ad nauseam in a number of news stories, so I won’t belabor the details.  It is important to note at the outset that there was never a federal law "banning" horse slaughter in the U.S.  In a nutshell, there was law prohibiting federal funding of USDA horse meat inspections put in place in 2006, and that law esentially ended horse slaughter for human consumption in the U.S.  The 2006 "USDA defunding" provision was lifted on November 18, 2011 as part of a Congressional bill signed by President Obama. As a result, horse slaughter plants are already being considered several states and may be operational in 30 to 90 days. But plants specifically designed for horse slaughter cannot be developed in Texas, California, Illinois and Oklahoma, where state laws specifically prohibit horse slaughter plant operations. For more information, see this article.

But the real news story, to me, is the astounding fact that PETA believes resuming horse slaughter in the U.S. will reduce overall horse suffering, and supports the move. Yes, we’re talking about PETA--the same, often controversial animal rights group known for campaigns like “fur is murder” and the lawsuit filed against Sea World for "enslaving" killer whales. 

In a Christian Science Monitor interview, PETA founder Ingrid Newkirk said PETA believes the United States never should have banned domestic horse slaughter because “the amount of suffering that it created exceeded the amount of suffering it was designed to stop.” 

According to the Christian Science Monitor article, “PETA says the optimal solution is to ban both consumption slaughter and the export of horses, but it supports reintroducing horse slaughterhouses in the U.S., especially if accompanied by a ban on exporting any horses at all to other countries.” Really? A ban on exporting any horses at all to other countries? Does anyone know if PETA really proposes that we make it illegal to export any horse to any country outside the U.S., for any purpose? If so, how would this possibly work and what would it do to our horse industry? 

These questions aside, at least proponents of horse slaughter can be glad that for once, an association like PETA agrees with them. 

Compare PETA’s position to that of Forbes contributor Vickery Eckhoff, who blasts the Thoroughbred industry in an article this week for allegedly being “silent” with respect to the fate of ex-race horses that end up being slaughtered (and tortured in the process, according to Ms. Eckhoff). 

As an aside, it should be noted that many Thoroughbred racing industry associations are members and sponsors of the Unwanted Horse Coalition (UHC), whose goal it is to reduce the numbers of unwanted horses in the U.S. so that fewer end up being slaughtered…or worse (yes, I consider many fates worse than slaughter, such as dying of starvation, dehydration, or illness in the back pasture). For a list of the current member associations of the UHC, click here.

Ms. Eckhoff, like many in the “anti-slaughter” camp, believes horse slaughter should be banned because is inherently cruel and abusive and it cannot be made humane, even if it is done in accordance with USDA regulations.  Anti-slaughter groups and individuals often place the blame on breeders, and urge the government or others to penalize people for over-breeding instead of allowing horses to be slaughtered. How would this be done, I wonder, and at what cost? And is there really no way a horse slaughter facility can be designed to make the slaughter process as humane for horses as it is for other livestock? I welcome your thoughts.

Are You On the List of Horse Haters?

The issue of horse slaughter is on my mind today after reading a news story about the introduction of a U.S. Senate bill proposing the recommencement of horse meat inspection funding.  That's when I poked around on the Internet a bit and found the "Haters List".

In case you haven't seen it, the blog Wild Horse Haters & Horse Slaughter Promoters published a lengthy list of horse hatin’ people and groups (i.e. opponents of the horse slaughter ban in the U.S., according to the blog's publishers) so that the public can boycott them, their members, and their services.

A link to the Haters List can be found here.  The Haters List includes the American Association of Equine Practitioners (AAEP) and just about every major U.S. horse association, cattle association, and farm association.

Note:  the publisher(s) of the Haters List and the blog on which is appears remain(s) anonymous.

I am a life member of two associations on the Haters List: the American Paint Horse Association and the American Quarter Horse Association.  What about you?

Milt Toby, a colleague of mine in Kentucky, did a blog post a while ago about how the issue of horse slaughter has a way of dividing people. But can we draw general lines to determine who, in general, is in favor of laws allowing for the processing of horse meat in the U.S. versus who is against such laws? 

Upon review of the Haters List, it would seem to me that in general, those who support humane horse processing in the United States are those who, either directly or indirectly, are in the horse business.  This includes the AAEP, a national group of equine veterinarians whose mission includes "meticulous concern for the health and welfare of the horse". 

There are of course others who support horse processing in the U.S. who aren’t directly or indirectly in the horse business. One example is Fort Worth Star Telegram journalist Bob Ray Sanders.  Mr. Sanders’s recent editorial entitled “Congress Should Revisit Ban on Horse Slaughter” cites evidence from the recent Government Accountability Office report.

And surely there are some in the “horse business” who are in favor of government bans on processing horse meat in the U.S.

But assuming the Haters List is correct, it tells us a lot about where the “line in the sand” is drawn. The Haters List seems to indicate that, in general, most horse businesses and equine veterinarians are in favor of humane horse processing in the United States. Do you agree with this assessment? 

While you ponder this poignant question, I’ll leave you with a quote from Milt Toby’s blog this week:

I think the world would be a better place if horses were not being slaughtered for food anywhere.  I think the same thing about cows and pigs and sheep and chickens and tuna and salmon, and I think it’s logically and morally inconsistent to categorically oppose one without opposing all.  And no, I’m not a vegan."

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**19 SEP 2011 Clarification:  Out of all of my readers, only two individuals read this post and thought that I agreed with the publishers of the "Haters List" and that I don't believe that any animals should be processed for meat.  Although most people "got" where I was coming from on this issue, this alterted me to the fact that I may need to clarify some things.  I was "poking fun", tongue in cheek, at the anonymous publishers of the "Haters List" because I feel that their methods greatly reduce their credibility.  I was also asking if anyone agreed with me that it seems that most equine vets and most people who are in the horse business support humane processing.  As far as Milt Toby's quote goes, I read it as saying that Milt believes you can't categorically oppose humane horse slaughter unless you also oppose the humane slaughter of other animals.**

DOT Says it Will Not Adopt Regulation Requiring CDL for Farmers & Ranchers

Over the past few weeks, many agriculture associations have expressed concern that the US Department of Transportation (DOT) had proposed a regulation that would require farmers and ranchers to get a commercial driver's license (CDL) in order to, for example, drive tractors on public roads or haul livestock on public roads with a truck/trailer combo exceeding 26,000 pounds.

Ohio Agricultural Law Blog and Brownfield Ag News reported earlier this week that the stories concerning the pending DOT regulation were just “rumors” and that the DOT never proposed a law requiring farmers and ranchers to get a CDL. 

I researched this issue breifely and so far have not been able to locate a copy of any proposed DOT rule on the agricultural CDL topic.  If you have a copy, please let me know.   Regardless of whether or not a rule was actually proposed or pending, my research indicates that the DOT clearly did ask for public comment on the subject of whether current CDL agricultural exemptions existing under state law were appropriate. 

The DOT's request for public comment, Docket No. FMCSA-2011-0146, can be found here.    

According to several stories, the public had until the extended deadline of  August 1, 2011 to submit comments to the DOT on this issue. According to DOT, the agency received about 1,700 comments from the agricultural community and members of Congress. 

According to this DOT press release from August 10, 2011:

No regulations will be proposed for any new safety requirements or changes to the rules governing the transport of agricultural products, farm machinery, or farm supplies to or from a farm.”

Regardless of whether the proposed CDL regulation was just a rumor, this news is certainly a relief for Texas farmers and ranchers as well as horse owners who pull large horse or stock trailers.

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Time to Get New Warning Signs: Equine Activity Act Amended in 2011

As of June 17, 2011, the Texas Equine Activity Limitation of Liability Act was amended to include most common farm and livestock animals. The new Act will now be called the “Texas Farm Animal Limitation of Liability Act.”

In short, the immunities related to damages arising from horse activities found in Chapter 87 of the Texas Civil Practice & Remedies Code [formerly referred to as the “Texas Equine Activity Limitation of Liability Act”] now apply to all “farm animals”. A “farm animal” includes: an equine animal, a bovine animal, a sheep or goat, a pig or hog, a ratite [which, in case you have never heard of a “ratite”, includes an ostrich, rhea or emu], and a chicken or other fowl. 

The 82nd Texas Legislature [regular session] adopted amendments to the former Texas Equine Limitation of Liability Act through Senate Bill 479, the text of which can be found here. While most statutory amendments and new laws from the 2011 legislative session will not be effective until September 1, 2011, the amendments to the Act became effective “immediately” upon the requisite 2/3 vote in the Texas House on June 17, 2011.

The amended statute only applies to causes of action that accrue on or after June 17, 2011. 

Notable amendments to the Act include:

  • “Farm Animal Activities” now include rodeos, “events” in general, and “handling, loading, or unloading” a farm animal;
  • Providers of veterinarian and farrier services are now included in the definition of “Farm Animal Professional” ; and
  • The Chapter 87 warning sign language that is now required to be posted by “Farm Animal Professionals” is as follows:

WARNING: UNDER TEXAS LAW (CHAPTER 87, CIVIL PRACTICE & REMEDIES CODE) A FARM ANIMAL PROFESSIONAL IS NOT LIABLE FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT IN FARM ANIMAL ACTIVITIES RESULTING FROM THE INHERENT RISKS OF FARM ANIMAL ACTIVITIES.

“Farm Animal Professionals” should post new warning signs containing the updated version of the Act’s warning language. See the link above to the newly-adopted language for the warning sign language and provide same to whomever you have make new signs for your property. It will probably be a while before signs containing the updated warning language will be mass-produced and sold at places like Tractor Supply Co., feed stores, et cetera.

Related Post: Victory for Texas Horse Industry in Texas Supreme Court

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New Loser Pays Law Will Take Effect on September 1, 2011

If you are thinking about filing a lawsuit in Texas on a horse case, or if you think someone is planning on suing you in Texas, the following bullet summary contains some facts to consider about the new “loser pays” law that recently passed the Texas Legislature. 

These new rules are widely viewed as being friendly to defendants in civil cases. However, it remains to be seen how these new procedural rules will, in practice, affect plaintiffs’ ability to recover monetary damages in Texas. 

As I discussed in a previous post, civil lawsuits are first and foremost about money. Potential plaintiffs should definitely take these new rules and their potential financial impact into consideration before deciding to file suit on a horse case in Texas. 

  • Basic Info. The “loser pays” law is contained in HB 274. The full text of the bill can be found here. The law was signed by Governor Perry on May 30, 2011, and it takes effect on September 1, 2011. It will only apply to civil lawsuits filed in Texas on or after September 1, 2011. The passage of the bill comes after months of intense legislative debate and publicity. The bill originally proposed in the House contained a number of “loser pays” provisions, but the version that was ultimately adopted contains only one true fee-shifting provision and instead implements several other procedural reforms.
  • New Motion to Dismiss Procedure and Related Fee-Shift. The bill creates a “motion to dismiss” practice that was not previously available in Texas. What this means: A defendant can file a motion to dismiss a cause of action that “has no basis in law or fact” without submitting or offering any evidence along with the motion. The prevailing party on the motion to dismiss (which includes a plaintiff who successfully avoids dismissal) will be awarded its attorneys’ fees and costs.
  • Expansion of Fees/Costs Offset if Settlement Offer Rejected. Texas already has a “settlement offer” statute that permits a party to make a written settlement offer that, if rejected, entitles the offering party to offset its attorneys’ fees and certain litigation costs against the judgment if the final judgment rendered is significantly less favorable to the party that rejected the settlement offer.  Before HB 274, defense fees and costs that could offset a plaintiff's judgment were capped at 50 percent of economic damages and 100 percent of non-economic damages and exemplary damages. HB 274 expands the amount of recoverable attorneys’ fees and costs to the total amount that the plaintiff recovers. This means that plaintiffs now risk having their entire judgment offset if they reject a settlement offer made under the statute. 

There are two other changes to Texas civil trial procedure found in HB 274: one permitting more interlocutory appeals of controlling questions of law, and the other having to do with a defendant's ability to designate a responsible third party after the applicable statute of limitations has passed. 

For more information, see the related post on the Texas Employment Law Update and this downloadable Client Alert.

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Partial Payments No Longer Defeat A "Theft of Service" Charge

If someone owes you money for board, training, or veterinary services, you may now be able to call your district or county attorney and have the debtor criminally charged with “theft of service”, even if the debtor has made partial payments to you. Note: this probably won’t work if you agreed to accept partial payments or agreed to a payment plan.

On May 27, 2011, Governor Perry signed S.B. No. 1024 into law. This bill revises Section 31.04 of the Texas Penal Code, eliminating a loophole that previously existed for a criminal theft of service charge.  Under prior law, a party obtaining services from another under a promise to pay could avoid a criminal charge of theft of service so long as the party was making minimal payments. 

Beginning on September 1, 2011, when the new law takes effect, a person can be charged with theft of service if full payment is not received by the service provider after the debtor receives notice demanding payment.

This new law also applies to wages a horse operation might pay to its employees. A theft of wages can now be found even if partial wages are paid. See this post by Russell Cawyer for more information on how this law affects employers for failure to pay wages in full.

Things to know about “theft of service” charges in Texas: 

  • You can be arrested for theft of service and you can go to jail if you are convicted. 
  • Theft of a service greater than $1,500 is a felony in Texas.

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Update on Texas Equine Dentistry Bill

The new law passed by the Texas Legislature affecting equine densitry (see post) was signed into law by Governor Rick Perry on Friday, June 17, 2011.  A complete history of the bill can be found here.

Texas VLT (Slots) Update

Virtually everyone involved in the Texas horse industry is hoping that a bill will finally pass in the 82nd Texas Legislature legalizing Video Lottery Terminals (VLTs) at Texas race tracks. After several failed attempts in past legislative sessions to get a VLT bill passed, the detriment to the Texas horse industry due to the lack of VLTs has gotten so bad in 2011, some say, that the Texas horse industry will be “dead” if VLTs do not pass this year. 

Two bills proposing the legalization of VLTs--SB 1118 and HB 2111--were introduced this legislative session. The regular legislative session ended on May 30, 2011 with the passage of neither VLT bill. Governor Rick Perry issued a proclamation on May 30 calling all legislators back the next day, May 31, for a 30-day special session.
 

The two original agenda items for the special session, as set by the Governor, were 1) measures that will allow school districts to operate more efficiently; and 2) healthcare cost containment, access to services through managed care, and the creation of economic and structural incentives to improve the quality of Medicaid services. Both of these items concerned HB 1 (the “Budget Bill”).

Governor Perry has since added Congressional redistricting as a third item to be addressed during the special session. The Governor can add more items to the agenda, but House and Senate members cannot bring up bills unrelated to the items on the call. According to Dave Hooper, Executive Director of the Texas Thoroughbred Association’s June 3 update, “to date, there is no indication that any new items would include consideration of major new funding sources, which were never looked at during the regular session even though the state was faced with an immense budget shortfall.”

The Texas HORSE coalition’s home page bears the following statement today:

“Although we were not successful in getting legislation passed in the 82nd Legislative Session to help the Texas horse industry, your voices were heard in Austin!  Please continue to communicate with your personal Representative and Senator and let them know how vital VLT legislation is for the future of the Texas horse agri-industry.”

Unless the Governor adds to the special session agenda the issue of new funding sources to include in the Budget Bill, it appears unlikely that VLTs will pass in Texas this year.

Equine Dentistry Bill Passes Texas House and Senate

On May 30, 2011, the Texas House of Representatives and the Texas Senate both signed House Bill 414, which affects the practice of equine dentistry in Texas.  Absent a veto by Governor Perry, the bill will become law, effective September 1, 2011. The law, if approved by the Governor, will be codified in Section 801 of the Texas Occupations Code.

The new law will create licensing requirements for non-veterinarian equine dentists practicing in Texas. The law will carve out specific areas of equine dentistry that may be practiced by licensed non-veterinarians, and will give the Texas Board of Veterinary Medical Examiners authority to regulate non-veterinarian equine dentists.

Once the law takes effect, a person may not perform equine dentistry or offer or attempt to act as an equine dental provider unless the person is either a veterinarian or a “licensed equine dental provider” who is active and in good standing, performing under the supervision of a veterinarian who is active and in good standing.

 

Individuals will be prohibited from representing to the public that they are authorized to perform equine dentistry and may not use the title “dentist.” Licensed Equine Dental Providers may use the title “CEDP” upon licensure or “EDP” if they are licensed under the Grandfather clause before September 2013.

 

Under the new law, a licensed equine dental provider may legally provide only the following services, under the general supervision of a licensed veterinarian:

 

(1) removing sharp enamel points;

(2) removing small dental overgrowths;

(3) rostral profiling of the first cheek teeth;

(4) reducing incisors;

(5) extracting loose, deciduous teeth;

(6) removing supragingival calculus;

(7) extracting loose, mobile, or diseased teeth or dental fragments with minimal periodontal attachments by hand and without the use of an elevator; and

(8) removing erupted, non-displaced wolf teeth.

 

When providing the sanctioned activities described above, licensed equine dental providers will be held to the same standard of care as a veterinarian under the new law.

 

This new law will create, for the first time, a detailed definition of what constitutes “equine dentistry” in Texas.

 

The new law will not change any of the current laws related to the use of prescription drugs, such as the sedatives commonly used in teeth floating procedures. HB 414 has no impact on any other procedures that are often carried out by non-veterinarians, such as chiropractic care, farriery, acupuncture and reproduction-related practices.

 

For more information, see the press release issued today by the Texas Veterinary Medical Association and the summary of HB 414 issued by the American Association of Equine Practitioners.