Without exception, or maybe a rare one, every day my blog entry on service dogs and the Department of Justice regulations dealing with them with respect to title II and title III entities, gets at least one visit from someone. That blog entry deals with the federal approach to service dogs with respect to title II and title III entities. However, states are free to come up with their own schemes and Texas, via House Bill number 489 just signed by Gov. Perry, has amended their statutory scheme. I thought it would be interesting to talk about the Texas approach here.

House Bill number 489 amends several different statutes:

1. It adds a § 437.023 entitled service animals to the Health & Safety Code. That section, § 437.023(a), prohibits a food service establishment, retail food store, or any entity regulated under Chapter 437 of the Health & Safety Code from denying the service animal admittance into an area of the establishment or store or of the physical space occupied by the entity that is open to customers and not used to prepare food providing the service animal is accompanied and controlled by a person with a disability or the service animal is in training and is in the company of and controlled by an approved trainer.

2. § 437.023(b) of the Health & Safety Code also contains a provision that matches up with the Department of Justice regulations regarding the inquiries that can be made of service dogs. As with the federal regulations, if the service animal is accompanied by a person whose disability is not readily apparent, it allows for a staff member of the establishment, store or entity to only inquire if the service animal is required because the person has a disability and what type of work the service animal is trained to perform. House Bill number 489 added a § 121.003(k) to the Human Resources Code, which contains the same language as § 437.023(b) of the Health & Safety Code.

3. § 437.023(c) of the Health & Safety Code defines a service animal as a canine that is specially trained or equipped to help a person with a disability and specifically excludes animals providing only comfort or emotional support to a person. What we don’t know from the legislation is what does, “specially trained” mean? For that, we will have to wait developments from the regulatory body with responsibility for this particular section of the Health & Safety Code. Another possible place that guidance might come from on this, is an opinion of the Texas Atty. General (the reader is also referred to paragraph 5 below).

4. § 437.023(c),(c)(1-6) of the Health & Safety Code also set forth tasks that a service animal may perform with respect to helping a person with a disability so long as the animal is doing tasks directly related to the person’s disability. Those tasks may include: guiding the person with the visual impairments; alerting a person with a hearing impairment or who is deaf; pulling a wheelchair; alerting and protecting a person with a seizure disorder; reminding a person with a mental illness to take prescribed medication; and calming a person who has post-traumatic stress disorder. The legislation specifically uses the term “may include,” and therefore, an argument can be made that this list of tasks is not exclusive. It will be interesting to see if the regulatory body for this section adds to this list. As to what is “directly related to the person’s disability,” it should be fairly obvious most of the times. It remains to be seen whether any regulatory guidance will also be forthcoming on that.

5. § 121.002 of the Human Resources Code is amended by the act. In particular, § 121.002(1) now defines an assistance animal and a service animal in the same way i.e. a specially trained or equipped canine that helps a person with a disability and that is used by a person with a disability. While the term “specially trained or equipped,” currently exists in the Human Resources Code, I was unable to find, through a Westlaw search, any definition of that term in the Texas Administrative Code with respect to the Human Resources Code. Also, it is possible that the regulatory body for the Health & Safety Code would not be the same as the regulatory body for the Human Resources Code. Thus, if so, it is theoretically possible that, “specially trained or equipped” may wind up having different meanings depending upon the statute involved. Hopefully, that wouldn’t happen because it would create a mess, but it is a theoretical possibility. When I did a search on Westlaw to find out how “specially trained,” might be defined in the Texas Administrative Code, the only entry I came up with was § 169.22 of the Texas Administrative Code dealing with rabies control and eradication. That particular section does say that a person with a disability has to have taken a course in the training of such an animal. It also says that the training has to be from an organization generally recognized by agencies involved in the rehabilitation of persons who are disabled as reputable and competent to provide training for assistance animals and/or their handlers (but see #9 below).

6. § 121.002(4) of the Human Resources Code defines a disability as a person who has any of the following: a mental or physical disability; an intellectual or developmental disability; a hearing impairment; deafness; speech impairment; visual impairments; post-traumatic stress disorder (coverage of post-traumatic stress disorder was specifically cited by Gov. Perry when signing the legislation); or any health impairment that require special ambulatory devices or services. What is important to note about this definition is that it doesn’t correspond to the definition of a disability under the ADA.

7. § 121.002(5) of the Human Resources Code makes clear that a public facility also includes a retail business, commercial establishment, or office building to which the general public is invited.

8. § 121.003(h) of the Human Resources Code, which deals with full and equal access to housing, is amended so as to prohibit requiring a person with a total or partial disability who uses a service animal from being required to make a deposit for the animal. It also goes on to say that such a person is liable for damages done to the premises by the animal, except for reasonable wear and tear (the language pertaining to a deposit and to liability excepting reasonable wear and tear were added by House Bill number 489 to previous law).

9. § 121.003(i) of the Human Resources Code is amended so that an animal in training cannot be denied admittance to any public facility when that animal is accompanied by an approved trainer. The importance of this amendment is that prior law, deleted by House Bill number 489, restricted an approved trainer to a person who was an agent of an organization generally recognized by agencies involved in the rehabilitation of persons who are disabled as reputable and competent to provide training for assistance animals and/or their handlers. Thus, House Bill number 489 expands who an approved trainer can be from prior existing law.

10. § 121.004(a) of the Human Resources Code is amended so that a person who violates a provision of § 121.003 commits a misdemeanor punishable by a fine of not more (it used to be not less) than $300 and-added by House Bill number 489- 30 hours of community service to be performed for a governmental entity or nonprofit organization primarily serving persons with visual impairments or other disabilities (the court has discretion to choose another entity or organization as well), to be completed in not more than one year.

11. § 121.004(b) of the Human Resources Code is amended so that a person, including a firm, association, corporation, or other public or private organization, or the agent of the person who violate provisions of § 121.003 is deemed to have deprived the person with a disability of his or her civil liberties and that person can then maintain a cause of action for damages in a court of competent jurisdiction with a conclusive presumption of damages in the amount of at least $300 (the prior law had it as $100), to the person with a disability. [In this paragraph, I am using the italics to indicate the changes to the existing laws].

12. § 121.006(a) of the Human Resources Code imposes penalties upon a person claiming that they are using a service dog when the dog does not meet the definition of a service dog. First, if a person uses a service animal with a harness or leash of the type commonly used by the person with disabilities who use such animals and does so in order to represent that his or her animal is a specially trained service animal when training has not in fact been provided, that person is guilty of a misdemeanor and is subject to a fine of not more than $300 and the 30 hours of community service. With the exception of the civil damages piece, the penalty for misrepresenting a dog as a service dog and for denying a person with a service dog the right to use a facility is the same. The lack of the civil damages piece against a person who misrepresents a dog as a service dog can be a bit problematic. That is because it is a standard rule of attorney conduct that an attorney cannot threaten criminal prosecution solely for civil advantage. Without the civil damages piece against a defendant misrepresenting a dog as a service dog, this particular ethical rule may be in play. After all, since the questions that can be asked in order to ascertain whether a dog is a service dog are so limited, it would take discovery to determine the nature of the alleged service dog’s training, one wonders how a criminal statute wouldn’t be used solely for civil advantage. Also, it is interesting that the statute has as a preliminary statement that “a person is using a service animal with a harness or leash of the type commonly used by the person with disabilities,” because that creates the argument that the statute does not apply unless such a leash or harness is involved in the first place.

If there is a moral to this blog entry, it is that state laws always have to be looked at. Also, it is important not to assume what the nature of those state laws might be (a red state or a blue state), as you might be surprised. Finally, whenever a statute is passed, federal or state, regulatory developments follow. Those regulatory developments need to be monitored during the rulemaking process so that the regulatory bodies are aware of the client’s concerns.

7 Responses to Service Dogs Redux: the Texas approach

Great post, and a lot of information I hadn’t looked at despite the fact I practice in Texas. Just one note about the red state blue state distinction. While businesses often regard disabilities access laws as simply another kind of government interference I doubt that very many politicians want to be anti-access. With the service dog issue the fact that veterans are the most likely sufferers of post traumatic stress disorder makes this a pro-veteran law as well. I often remind my clients that our federal judges, who are mostly conservative appointees of conservative presidents, look at ADA compliance as a law and order issue, not a government regulation issue. You break the law, you are on the wrong side of a law and order judge.

Thanks Richard

Given the hysteria of how the ADA is considered, wrongfully in my opinion, antibusiness, I had never considered how the ADA may be viewed in terms of a law and order perspective. Thanks!

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