It is called PREEMPTION, and I have emailed roughly 24 city/county officials for a clarification. To date, I have had 24 officials ignore my request.
I have spoken with an attorney, and it currently seems-
Local Ordinances can be MORE STRICT if there is no conflict with TEXAS STATUTE.
HOWEVER, AS WRITTEN THERE IS A CONFLICT with local ordinances and state law with regard to those animals listed on the new Texas Statute.
Let me explain:
Local governments across Texas routinely use Vernon's Statutes to label certain reptiles as, "Dangerous Wild Animals."
Below, are some supportive rulings used by local governments when basing reptile regulation to Vernon's Statutes:
1.) When there is no conflict between a state law and a city ordinance, the ordinance is not void.-TX Supreme Court ruling of City of Richardson vs. Responsible Dog Owners (1990).
2.) Local regulation, ancillary to and in harmony with the state legislation, is acceptable.-Gordon vs. State (1988).
Also, according to the Texas Constitution:
Local government looks to statute for limitations of power, and not authorization of power.
To begin, Vernon's Statutes provides a short list of animals deemed “dangerously wild,” and reptiles do not make this list; However, the statute does not state that the list is absolute. Thus, animals could be added but not removed from the list, upon ordinance adoption by local regulators.
Here is the actual definition of Dangerous Wild Animal, from Vernon's Texas Statutes, Title 10; Health and Safety of Animals, Chapter 822.101-Regulation of Dangerous Wild Animals list:
"Dangerous wild animal" means:
lion;
tiger;
ocelot;
cougar;
leopard;
cheetah;
jaguar;
bobcat;
lynx;
serval;
caracal;
hyena;
bear;
coyote;
jackal;
baboon;
chimpanzee;
orangutan;
a gorilla;
or any hybrid of an animal listed in this subdivision.
Utilizing the above Texas Supreme Court rulings, the Texas Constitution, and the list as a guideline, many local governments across the state expanded the Dangerous Wild Animal lists, to include certain reptiles.
Enter HB12
Prior to HB12, local governments were left with the ability to determine the regulatory placement, and as a result-how best to address reptile ownership.
HB12 was adopted by the Texas Legislature in 2007. Part of HB12 specifically addressed the permitting of certain reptiles:
Texas Parks and Wildlife Code; Title V. Wildlife and Plant Conservation: Special Licenses and Permits-
§ 43.851. PERMIT.
(a) The commission by rule shall establish permits, that allow permit holders to possess or transport in this state a live non-indigenous:
venomous snake; or
constrictor that is one of the following:
African rock python, Python sebae;
Asiatic rock python, Python molurus;
Green Anaconda, Eunectes murinus;
reticulated python, Python reticulatus; or
southern African python, Python natalensis.
HB12 clarified the State of Texas' position concerning certain reptiles, and placed regulation in the, Texas Parks and Wildlife Code. Since legislators did not deem these reptiles as fitting the expressed or implied definition of “dangerously wild,” they were not added to the existing Vernon’s Dangerous Wild Animals Statute.
As a result of Vernon's Statutes not addressing certain reptiles, a conflict is promulgated between the Texas Parks and Wildlife Code and many local ordinances with regard to certain reptiles. Even if Vernon's Statutes implied that any animal can be regulated as dangerously wild:
"A statute does not, of course, abrogate or affect an earlier law where there is no conflict between the two, But an act that is later in point of time controls, repeals or supersedes an earlier act, in so far as the two are inconsistent and irreconcilable and cannot both stand at the same time" . . .39 Tex.Jur. 139, Statutes § 74.
The Texas Legislature:
1.) Initiated a licensure program for certain animals under the Texas Parks and Wildlife Code; Title V. Wildlife and Plant Conservation: Special Licenses and Permits, Chapter 43.851, while simultaneously;
2.) Narrowing how local governments view certain animals as “dangerously wild” under Vernon's Statutes, Title 10; Health and Safety of Animals, Chapter 822.101.-Regulation of Dangerous Wild Animals.
Thus, resulting regulation of certain reptiles by TP&WD appears to preempt local ordinances statewide.
This preemption still applies even though Texas Administrative Code, Rule §55.652 (b) appears to be a possible attempt at letting existing local ordinances stand with regard to certain reptiles:
A permit issued under this subchapter does not relieve any person of the responsibility of complying with any federal, state, or local law or ordinance regulating the possession and transportation of controlled exotic snakes.
BY TEXAS LEGISLATIVE LAW: Local Ordinances CAN BE MORE STRICT, BUT CANNOT FORBID OWNERSHIP of these animals.
As a result, local ordinances can tighten the ownership requirements, but they cannot legally forbid ownership.
Remember, regulations must be statutorily based. As such:
1.) A city is preempted from regulating in a field if the city's regulation is expressly prohibited, if the legislature intended state law to exclusively occupy that field, or if the city regulation conflicts with state law, EVEN IF STATE LAW IS NOT INTENDED TO OCCUPY THAT FIELD. -Jim Mattox OAG Opinion # JM-619
2.) Even if the legislature has not preempted home-rule cities from adopting regulations in a particular field, however, a home-rule city may not enforce an ordinance inconsistent with state law. –Dan Morales OAG Opinion # DM-221
3.) What the statute allows, a city may not by ordinance forbid. See: City of Brookside Village vs. Comeau, 633 S.W.2d 790, 796 (Tex. 1982)
As a result, local governments can add regulations ancillary to possession, they can not currently ban certain reptile ownership of the types listed in the statute.
Again, it is my understanding that had the Texas Legislature wished to forbid the ownership of the reptiles listed above, it merely would have had to mirror local ordinances by adding reptile legislation to Vernon's Statutes, Chapter 822.101; However, this option was not taken.
Since Vernon's Chapter 822.101, is not in conflict with new TP&W Code 43.851, the conflict lies squarely between local reptile regulation and TP&WD Code. The conflict is the express forbidding of certain reptiles. Where these two regulations conflict, state law does appear to supersede local ordinances.
