Proposed Administrative Rules

Chapter 83. Licensed Breeders
Proposal Filed: October 5, 2020 – Published in the Texas Register: October 16, 2020
Deadline for Public Comment: November 16, 2020

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The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 91, §91.25 and §91.92 regarding the Licensed Breeders program. These proposed changes are referred to as “proposed rules.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 91, implement the Dog or Cat Breeders Act, Texas Occupations Code, Chapter 802.

The proposed rules are necessary to implement Senate Bill (SB) 1531, 86 th Legislature, Regular Session (2019). SB 1531 made changes to the portion of the Dog or Cat Breeders Act, Occupations Code, Chapter 802, pertaining to criminal history of animal cruelty or neglect. In accordance with SB 1531, the proposed rules add a nolo contendere plea as a ground for denying or refusing to renew a breeder license. The proposed rules also incorporate the procedural changes provided for in SB 1531 by requiring the Department to deny, refuse to renew, suspend, or revoke a license in accordance with the Dog or Cat Breeders Act (Chapter 802) as well as Occupations Code Chapters 51 and 53, which also contain provisions related to criminal history. Finally, the proposed rules make two editorial changes: combining two subsections which are virtually identical, and correcting a reference to the Dog or Cat Breeders Act and the Licensed Breeder rules.

The proposed rules were presented to and discussed by the Licensed Breeder Advisory Committee at its meeting on September 23, 2020. The Advisory Committee did not make any changes to the proposed rules and voted that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §91.25(a) by adding a nolo contendere plea of animal cruelty or neglect to the list of reasons for which the Department must deny or refuse to renew a breeder license. The proposed rules also remove subsection (b), which lists reasons for which the Department may deny or refuse to renew a license.

The proposed rules amend §91.92(a) by requiring the Department to deny, refuse to renew, suspend, or revoke a dog or cat breeder license in accordance with Occupations Code, Chapters 51, 53, and 802. The proposed rules amend §91.92(b) by including language from current §91.25(b) stating that the Department may deny or refuse to renew a license in certain circumstances. The proposed rules also correct a reference in §91.92(b)(1) to the Dog or Cat Breeders Act and the Licensed Breeder rules.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. The proposed rules would not require the Department to obtain more personnel or resources, and conversely, any potential reductions in time or resources likely would not be large enough to affect the Department’s costs. Local governments are not responsible for enforcing or administering the proposed rules.

Mr. Couvillon has also determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules. The proposed rules do not affect the fees paid to the Department, and local governments do not enforce or administer the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. The Department estimates that there will be no effect on local employment because very few licensed breeders, controlling persons, or applicants to become licensed breeders will have the kind of criminal history that will cause a dog or cat breeder license to be revoked or denied under the proposed rules.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be implementing the changes made by SB 1531. SB 1531 requires the Department to deny, refuse to renew, or revoke a dog or cat breeder license due to a plea of nolo contendere for animal cruelty or neglect. The bill also specifies that revocation due to animal cruelty or neglect occurs by operation of law, and that before the license is revoked, the Department must issue a notice of the revocation to the licensed breeder. This new procedure allows the Department to more quickly revoke the licenses of persons who have a history of animal cruelty of neglect, thereby protecting dogs and cats from potential harm, while still allowing the licensee to respond to the notice of revocation in accordance with SB 1531.

Additionally, the proposed rules remove duplicative language and correct a reference to the Dog or Cat Breeders Act and the Licensed Breeder rules. These proposed changes will make the rules more concise and easier to read.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. SB 1531 allows licensed breeders to provide to the Department proof that the breeder or the breeder’s controlling person does not have criminal history that would cause the breeder’s license to be revoked. While there could be a cost to obtain this type of documentation, that cost is unknown and cannot be estimated. Further, the licensed breeder would likely need to obtain this documentation under the previous statute in order to provide it to the Department prosecutor or the State Office of Administrative Hearings Administrative Law Judge to demonstrate why the license should not be revoked.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Although most, if not all, licensed dog and cat breeders are small or micro-businesses, for the reasons outlined above, no economic costs are anticipated to licensees as a result of the proposed rules. Additionally, although many breeders are located in rural communities, the Department anticipates that very few licensed breeders, controlling persons, or applicants to become licensed breeders will have the criminal history that will cause a breeder license to be revoked or denied under the proposed rules. Therefore, the proposed rules will not have an adverse economic effect on a rural community.

Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules expand §91.25 to add a plea of nolo contendere to the grounds for denying or refusing to renew a breeder license. The proposed rules combine subsections of §91.25 and §91.92 that list reasons for which the Department may deny, refuse to renew, revoke, or suspend a license. The proposed rules also expand §91.92 in that the proposed rules refer to Chapter 802, which includes the changes made by SB 1531, as well as Chapters 51 and 53 of the Occupations Code.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner’s rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov . The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 802, which authorize the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department. The proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department’s statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 802. No other statutes, articles, or codes are affected by the proposed rules.

§91.25. License Approval and Issuance.

[ (a) ] The department shall deny issuance of a license to, or refuse to renew the license of, a person if the person or a controlling person of the dog or cat breeder has pled guilty or nolo contendere to, been convicted of, or received deferred adjudication for animal cruelty or neglect in this state or any other jurisdiction in the five years preceding the person’s initial or renewal application for a license.

[ (b) The department may deny issuance of a license to, refuse to renew the license held by a person who: ]

[ (1) fails to meet the requirements of this chapter and rules adopted under this chapter; ]

[ (2) has had a similar license issued by a federal, state, or local authority denied, revoked, or suspended; ]

[ (3) has falsified any material information requested by the department; ]

[ (4) has failed to meet a standard adopted by rule under this chapter; or ]

[ (5) has failed to comply with any corrective action required under an inspection report in the time provided by the report. ]

§91.92. License Denial, Revocation, and Suspension.

(a) The department shall deny, refuse to renew, suspend, or revoke a license in accordance with Occupations Code, Chapters 51, 53, and 802. [ if, after the license is issued, the person or a controlling person of the dog or cat breeder pleads guilty to, is convicted of, or receives deferred adjudication for animal cruelty or neglect in this state or any other jurisdiction. ]

(b) The department may deny, refuse to renew, revoke, or suspend a license held by a person who:

(1) fails to meet the requirements of Occupations Code, Chapter 802 and[ this chapter and rules adopted under ] this chapter;

(2) has had a similar license issued by a federal, state, or local authority denied, revoked, or suspended;

(3) has falsified any material information requested by the department;

(4) has failed to meet a standard adopted by rule under this chapter; or

(5) has failed to comply with any corrective action required under an inspection report in the time provided by the report.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.

Filed with the Office of the Secretary of State, on October 5, 2020.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation