Texas Equine Dentistry (2nd Challenge)

Introduction

Just as farriers trim down and care for horses’ hooves, specialists called “equine dental practitioners” file down and care for horses’ teeth. Unlike human teeth, a horse’s teeth grow throughout its lifetime and must be filed down or “floated” periodically to maintain proper length and alignment. But last year, bureaucrats in Austin decided to shut down equine dental practitioners so that state-licensed veterinarians—most of whom have no training whatsoever in equine dental care—may have a monopoly on providing those services. Now horse owners and the equine dental practitioners they depend on are demanding answers to the Board’s rash and irresponsible actions that threaten the well-being of Texas’ one million horses.

Until early 2007, it was perfectly legal for non-veterinarians in Texas to “float” horses’ teeth (i.e., make teeth level by filing away uneven edges). Indeed, the Texas State Board of Veterinary Medical Examiners (“Board”) specifically acknowledged and approved that practice many times over the years. But suddenly, without holding any public hearings, without conducting any studies, and without following statutorily mandated procedures, the Board changed its long-standing interpretation of Texas’ Veterinary Licensing Act (“Licensing Act”) to forbid non-veterinarians from floating horses’ teeth.

If it is not stopped, the Board’s sudden change of policy will destroy the livelihoods of hundreds of non-veterinarian equine dental practitioners and impose severe economic hardship on the hundreds of thousands of horse owners and breeders throughout Texas who have relied for decades on non-veterinarian dental practitioners to care for their horses’ teeth-floating needs.

But the Board will not publicly explain or defend its new policy, despite its recognition of the fact that “[t]here are not enough veterinarians skilled in equine dentistry to meet the public’s needs.”[1] Recognizing the controversial nature of its new policy – and its total inability to justify that policy – the Board cancelled a “Stakeholders’” meeting that had been scheduled for April 30, 2007, during which it was supposed to explain its new policy of allowing only a small, mostly unqualified cartel of state-licensed veterinarians to float horses’ teeth. But the Board cancelled that meeting after receiving hundreds of emails and telephone calls from irate horse owners who clearly understood, even if the Board did not, what a catastrophe the new policy would be for horses and horse owners in Texas.

Six weeks later, perhaps sensing pressure to talk to other people besides veterinarians, the Board’s executive director suggested another public meeting be held. Again displaying its disdain for public accountability, the Board rejected the executive director’s proposal at its very next meeting.[2] Wrapped in its bureaucratic cocoon of arrogance and indifference, the Board acts with total disregard for the best interests and clearly expressed desires of the horse-owning public.

The Board has likewise refused to defend its new policy in court. Thus, when four equine dental practitioners and two horse owners and breeders filed suit challenging the new policy in court last summer,[3] the Board’s lawyers engaged in a series of delaying tactics designed to keep the case trapped in the Board’s foot-dragging administrative forum and away from neutral state-court judges.

Why “Float” Horse Teeth?

Like humans, horses have baby teeth that are replaced by adult teeth; but unlike humans, a horse’s teeth continue to push through its gums or “erupt” until the horse loses its teeth or passes away.[4]

Because of the natural alignment of their jaws, horses do not evenly wear down their teeth and their teeth need to be filed, or “floated,” every six to 12 months in order to remove naturally occurring extensions called “points.” These points can cause problems as they prevent a horse from effectively grinding food using its natural lateral chewing motion. This prevents the horse from properly digesting food and may lead to weight loss and poorer overall health.

Floating is a painless and relatively simple animal husbandry procedure that removes the points from horses’ teeth. It presents minimal risks to the animal and practitioner, requiring only hand-eye coordination and the ability to recognize straight or abnormally curved lines by feel or sight. Indeed, it is extremely rare for floaters to seriously injure a horse.

Throughout history, horses’ teeth have been floated by laypeople, including horse owners, trainers, ranch hands and equine dental providers. This arrangement has served horses and horse owners well for hundreds of years, and it presents no genuine health and safety concerns.

The Plaintiffs: Equine Dental Practitioners

Due to the Board’s high-handed refusal to publicly defend its new policy, equine dental practitioners and horse owners are unsure of the legal status of their work in Texas.

Equine dental practitioners like Duane Boone, Stefan Dahl, Ali Fecteau, Bob Griswold and Josh Wallace are demanding answers and think the Board has an obligation to play it straight and tell them whether the services that they offer to horse owners throughout Texas are legal and, if not, why not. That is why they have challenged the Board’s new policy in court: to find out whether the Board’s decision to give a monopoly on horse teeth floating to a small group of mostly untrained, inexperienced and ill-equipped state-licensed veterinarians is constitutional.

Boone, Dahl, Fecteau, Griswold and Wallace filed suit challenging the state-sanctioned veterinary monopoly on April 23, 2008 in the District Court of Travis County in Austin, Texas. Their lawsuit is similar to one filed last August by Carl Mitz, Dena Corbin, Randy Riedinger, Brady George, Gary Barnes and Tony Greaves against the Board. In that case, the four dental practitioners and two breeders asked the Court to declare the Board’s new policy on horse teeth floating by non-veterinarians unconstitutional. Unfortunately, the Board had no interest in defending the merits of its position in a public, neutral forum and managed to get the lawsuit abated in favor of an administrative hearing process to be conducted through the State Office of Administrative Hearings and the Board itself. The Institute for Justice is appealing the district court’s decision to partially abate the case and plans to resume litigating that case in the coming months.

The latest lawsuit is different because, unlike the equine dental practitioners in the first challenge, none of the plaintiffs has ever received a cease-and-desist letter from the State Board, and the Board has not initiated administrative proceedings against any of them. Instead, these plaintiffs have decided to exercise their constitutional right, under the “open courts” provision of the Texas Constitution, to obtain a declaration from the courts about the legality of the Board’s new policy. At stake in the case is whether administrative agencies like the Texas Board of Veterinary Medical Examiners can be held accountable for decisions that directly affect the lives of hundreds of hard-working entrepreneurs like the plaintiffs in this case, as well as the businesses and well-being of thousands of horse owners throughout the state. Until recently, horse owners in Texas had the right to choose the providers they wanted to hire to take care of their horses’ teeth floating needs. But the Board has taken away that right in favor of a small, state-sanctioned cartel of veterinarians, most of who either do not know how nor wish to provide that service.

Duane Boone lives in Decatur, Texas. He has been around horses his entire life, and he competed in riding and roping events in Oklahoma for over twenty years. Duane enrolled at the Texas Institute of Equine Dentistry in Weatherford, Texas in November 2006, and has been floating horses’ teeth since then. Duane has an established clientele in the north Texas area where he works, and he has floated the teeth of over 200 horses.

Some of Duane’s clients have mentioned to him that they understand the Board has changed its interpretation of the law to prohibit horse teeth floating by people who are not state-licensed veterinarians. They are concerned about whether he will be able to continue providing equine dental services to their horses in light of the Board’s new policy. Regrettably, Duane is unable to give his clients a definitive answer to that question.

Stefan Dahl lives in McKinney, Texas, and also studied equine dentistry at the Texas Institute of Equine Dentistry. During the past four years, Stefan has floated the teeth of over 500 horses. Stefan would like to advertise his horse teeth floating services, but he does not dare because he is aware of the Board’s change in policy which purports to outlaw horse teeth floating by non-veterinarians in Texas. Thus, the Board’s public, repeated and unambiguous statements about its new interpretation of the Licensing Act regarding horse teeth floating has significantly impaired Stefan’s livelihood by preventing him from advertising his services.

Ali Fecteau grew up around horses. Starting at the age of six, Ali took on ever-increasing responsibilities for feeding, cleaning, grooming and exercising her family’s horses in Harvard, Ill., approximately 75 miles west of Chicago. At age 17, she won the American Quarter Horse Youth Association’s World and Reserve World Championships in team penning. Her three-person team was the first ever to win both titles in the same year. Between 2003 and 2005, Ali worked as a veterinary technician at an equine hospital in Wauconda, Ill. where she assisted four equine veterinarians.

Ali now lives in Pawhuska, Okla., 65 miles northwest of Tulsa. Her lifelong love of horses was the basis for her interest in becoming an equine dental practitioner. She completed classes in equine dentistry and graduated from the Texas Institute of Equine Dentistry in July 2006. Since graduating, Ali has treated the teeth of approximately 1,000 horses without injuring a horse. Ali travels to Texas and other states to perform floating and other basic dental procedures.

Approximately 20%-30% of Ali’s total business is from providing equine dental procedures in Texas.

Bob Griswold lives in Geary, Okla.. Bob’s introduction to horses came at age 10 when he started riding calves in rodeo. In college, he was a member of the national championship rodeo teams at Southwestern Oklahoma State in 1991 and 1992. Since 1992, Bob has competed professionally including participating three times in the National Finals Rodeo, the premier championship rodeo event in the United States.

At the age of 12, Bob started learning the basics of farriery from his father and worked with him throughout high school. In 1990, Bob completed a nine-month farriery program at Walla Walla Community College in Washington State. Bob has shoed over 10,000 horses.

Bob graduated from the Academy of Equine Dentistry in Glenns Ferry, Idaho in November 2002. Since 2002, Bob has performed floating and other basic dental procedures on 6,000 horses without injuring a horse. He travels to Texas and about 10% of his business comes from providing floating and other basic dental procedures there.

Josh Wallace lives in Whitesboro, Texas. Josh grew up on a farm in Tennessee, where he worked with horses and competed in rodeos. Josh took courses at Texas Institute of Equine Dentistry and has been an instructor there since graduating approximately two years ago. Josh teaches both basic and advanced courses, and he spends approximately two weeks every three months teaching at the school.

Besides being an instructor, Josh is a working equine dental practitioner. Although most of his work is in Texas, he works with horses in a number of other states, including Oklahoma, Louisiana and Florida. Florida has the third-largest horse population in the country behind Texas and California, and specifically authorizes horse teeth floating by non-veterinarians like Josh. The Board’s new policy regarding horse teeth floating significantly threatens Josh’s livelihood, both as a practitioner of equine dental services and as an instructor.

The Board wants to put Duane, Stefan, Ali, Bob and Josh out of business. Even though equine dental practitioners like them have worked on the teeth of hundreds of thousands, maybe millions, of horses with no significant problems, the Board suddenly began classifying equine teeth “floating” and extraction as “the practice of veterinary medicine” and threatening experienced, highly qualified equine dental practitioners with potentially massive fines and even jail time if they do not shut down their flourishing businesses.

Texas’ Veterinary Licensing Act

Under Texas law, only state-licensed veterinarians may practice “veterinary medicine.”[5] What counts as “veterinary medicine,” however, is open to significant interpretation. At first blush, the definition within the state Veterinary Licensing Act seems quite broad: “Veterinary medicine includes veterinary surgery, reproduction and obstetrics, dentistry, ophthalmology, dermatology, cardiology, and any other discipline or specialty of veterinary medicine.”[6]

But as anyone who has ever worked on a farm or a ranch knows perfectly well, laypeople routinely do all sorts of things with large animals that would fall within that absurdly overbroad definition of “veterinary medicine.”

In fact, taking care of animals on a farm involves a wide array of animal husbandry practices, from castration, to birthing, to filing down and leveling a horse’s hooves and teeth. And Texas allows all animal husbandry practices—no matter how invasive, bloody or potentially painful for the animal—to be performed by unlicensed, unregulated laypersons. All, that is, except horse teeth floating.

Not surprisingly, given the reality of life on a farm or a ranch, Texas’ Veterinary Licensing Act is riddled with exceptions and exemptions that allow non-veterinarians to engage in conduct that falls within the technical statutory definition of “veterinary medicine.” Those exceptions and exemptions make clear that people other than veterinarians are perfectly well qualified to take care of many aspects of an animal’s health, including invasive procedures that, unlike horse teeth floating, present genuine risks for both practitioner and animal. Indeed, the Licensing Act specifically states that anyone may perform “livestock management practices,” including: castration, dehorning, tail docking, shoeing horses, nonsurgical birthing, branding, artificial insemination, and “treating an animal for disease prevention with a nonprescription medicine or vaccine.”[7] Thus, anyone may do those things in Texas with no license and no supervision, regardless of whether they have any training, experience or know-how. Yet the Board singles out horse tooth care, which has far fewer risks than other types of horse care, for onerous and unreasonable licensing requirements.[8]

Another absurdity of Texas’ law is that the Licensing Act does not apply to “the treatment or care of an animal in any manner by the owner of the animal, an employee of the owner, or a designated caretaker of the animal.”[9] That means a horse owner can have a totally inexperienced, untrained ranch hand float and extract his horse’s teeth, but the same horse owner may not hire an experienced, highly qualified practitioner like Duane, Stefan, Ali, Bob and Josh to do the same work simply because they are not full-time employees.

The notion that only state-licensed veterinarians should be allowed to float horses’ teeth is especially ridiculous given that few veterinarians have any hands-on training whatsoever in horse teeth floating or tooth extraction. Texas A&M’s College of Veterinary Medicine and the 27 other veterinary colleges in the United States offer a generally uniform curriculum of classroom, laboratory and clinical education that is designed to prepare graduates for the general practice of veterinary medicine. But neither Texas A&M nor the vast majority of other veterinary schools require students to take a single class in equine dentistry in order to graduate, although some schools offer electives.[10] Moreover, the annual cost to attend Texas A&M is $27,892 for Texas residents; that totals well over $100,000 for the four years needed to graduate as a doctor of veterinary medicine.[11]

Forcing Texas equine dental practitioners to spend more than $100,000 and four years at veterinary school, where they will learn next to nothing about caring for horse’s teeth, is ridiculous. Horse tooth care requires skill, experience and horsemanship, none of which come from vet school.

Shortage of Large Animal Veterinarians in Texas

The high cost of veterinary education has produced a shortage of large-animal veterinarians in Texas. In response to debt loads approaching $70,000 at graduation at Texas A&M’s College of Veterinary Medicine and higher at other schools, the majority of graduates from the 28 veterinary colleges in America are entering the small-animal practices.[12]

In fact, more than 58% of the 4,507 veterinarians licensed to practice in Texas are exclusively treating cats, dogs and other small animals.[13] This trend is disturbing because Texas’ demand for large- animal veterinary services is enormous and unmet. Despite having the most horses, cattle, sheep and goats of any state in the country, only 3.6% of licensed veterinarians treat large animals—that percentage is significantly below the national average of 10.4 % and is declining.[14]

More specifically, there are approximately 270,000 horse owners in Texas who own, on average, 3.7 horses and spend $2.7 billion annually to maintain their horses. Medical expenses for horse owners are second only to feed costs.[15] Furthermore, the Texas racing industry generates $1.1 billion in spending.[16] Despite the large numbers of horses in Texas, the veterinarians’ trade association, the Texas Veterinary Medical Association, can identify only about 100 veterinary clinics that offer some equine dentistry services. That’s not nearly enough to meet the demand for equine dental services for the million horses in Texas.[17]

In the face of this shortage, the Board’s new interpretation does the very opposite of its stated purpose: Instead of promoting the health and well-being of horses, it is putting them at serious risk by taking an existing shortage of qualified equine dental practitioners and making it much worse by putting most of them out of business.

Farriery v. Floating

The comparison between farriery and floating is of particular relevance to this case because of their many similarities. Farriery is the care, maintenance, and treatment of horses’ hooves including trimming and shoeing. Although it is an animal husbandry procedure performed on horses, and although it requires the same or even more knowledge and skill as floating, Texas does not regulate the practice of farriery in any way.

Like their teeth, horses’ hooves continue to grow throughout their lives. They need to be trimmed and shod every six to eight weeks. And like its teeth, if a horse’s hoof grows too long without being trimmed, that presents a problem for the horse. Specifically, if left untreated, a domesticated horse’s hooves can grow to such a length that its feet will grow out of balance. This unevenness can cause soreness in other parts of the horse’s body and even arthritis.

Competently trimming and shoeing horses’ hooves requires significant training. A farrier must have a thorough understanding of the horse’s anatomy and physiology in order to properly “level” the horse’s hooves and to recognize potentially fatal disorders. The expression “no hoof, no horse” conveys just how critical the horse’s hooves and feet are too its overall health. And yet, anyone who wants to may work as a farrier in Texas, with no licensing , no regulation, and no state oversight of any kind. Whether a particular farrier is good enough to treat a particular horse is between that horse’s owner and the farrier—just as it should be with equine dental practitioners.

As a practitioner of both services, Bob Griswold knows that farriery requires as much knowledge and skill, if not more, than that needed to float horses’ teeth. But while farriery is backbreaking work that veterinarians have little interest in performing, floating is comparatively easy. The inexplicably different treatment in the regulation of floaters and farriers shows just how arbitrary the Board’s treatment of floaters is and strongly suggests that the Board’s new policy is motivated by something else besides the best interests of horses and horse owners.

The Texas State Board of Veterinary Medical Examiners

Until last year, the State Board took the position—consistently, repeatedly and publicly—that equine teeth floating by non-veterinarians was perfectly legal. In fact, it advised the Texas Legislature in the Board’s 2007 Agency Strategic Plan that “teeth ‘floating’ can be done by lay persons.” But in February 2007, without holding any public hearings or conducting any formal study or analysis, the Board suddenly changed its position and declared from that day forward equine teeth floating would be considered the practice of veterinary medicine and off limits to non-veterinarians like the Duane, Stefan, Ali, Bob and Josh.

This change in policy was reflected in a series of cease-and-desist letters sent to Carl Mitz and approximately nine other equine dental practitioners on February 23, 2007, culminating in a letter dated November 30, 2007, in which the Board explained that “[a]fter reviewing the facts,” and with the advice of the Board’s Enforcement Committee, the Board Secretary determined that Mr. Mitz was “in violation of the Veterinary Licensing Act by practicing veterinary medicine without a license.”

The Board’s sudden change in policy exposed all equine dental practitioners working in Texas to substantial civil and criminal liability. The Board is empowered under the Veterinary Licensing Act to assess an administrative penalty of up to $5,000 per day against non-licensees who violate a formal cease-and-desist order, the issuance of which requires completion of a statutorily prescribed administrative process.[18] But the Board may sidestep the administrative process by requesting the attorney general to bring a civil action for practicing veterinary medicine without a license, for which the Act provides fines of up to $1,000 per day.[19] Finally, any violation of the Act—including practicing veterinary medicine without a license—is a Class A misdemeanor for which practitioners face an ongoing risk of prosecution from the moment the Board changed its interpretation of the Act concerning the legality of horse teeth floating by non-veterinarians.[20]

Government regulations like the one here—that do nothing more than protect special interests from competition—hurt both entrepreneurs who fill specialized niches and consumers who are forced to pay higher prices for lower-quality services and fewer choices. The Board’s campaign against equine dental practitioners has nothing to do with the well-being of horses or their owners and everything to do with promoting the financial interests of state-licensed veterinarians. Texas’ absurd licensing scheme is a lose-lose-lose for entrepreneurs, horse owners and horses. It puts people with the experience and skill to care for horse teeth out of work, while forcing Texas horse owners to pay more for lower-quality care.

Like many occupational licensing boards, the Texas State Board is composed almost entirely of entrenched practitioners. Six of the Board’s nine positions are set aside for licensed veterinarians, providing ample opportunity for capturing governmental power to advance the narrow economic interests of veterinarians and for reinforcing the profession’s orthodoxy.
Non-veterinary equine dental practitioners often charge half or even a third of what veterinarians charge to treat horses’ teeth. Practitioners like Duane, Stefan, Ali, Bob and Josh can offer a more cost-effective service because, unlike veterinarians, they specialize in treating horses’ teeth. They have made significant investments in tools, often more than $7,000 for an initial set, but can spread their fixed costs over the many horses they serve. Because veterinarians cannot beat their competitors in the marketplace, they seek to beat them through occupational licensing laws.

Moreover, the Board appears completely indifferent, if not hostile, to the needs of horse owners. After sending out its first round of cease-and-desist notices in late February 2007, more than 300 outraged horse owners sent letters and emails to the State Board protesting its decision to shut down equine dental practitioners in Texas. Instead of responding constructively, the Board cancelled a public meeting that had been planned to allow people to tell the Board how they felt about its enforcement actions.[21]

There is no doubt about the State Board’s seriousness in enforcing its new policy against equine dental practitioners. According to the Board’s in-house publication, starting on September 4, 2007, the Board staff will “begin filing cases at the State Office of Administrative Hearings against those persons who have failed or refused to sign a cease-and-desist order.”[22]
The State Board is abusing its power by protecting an elitist cartel of veterinarians and shutting out entrepreneurs who have the know-how to care for horses’ teeth. If the Board has its way, those with the skill and experience to properly care for Texans’ horses will be forced out of the market, leaving horse owners with only one option: hire licensed veterinarians who, in most cases, lack both training and skill in caring for horse teeth.

Texas’ Sunrise Act

Notably, the Texas Legislature has recognized that overregulation of occupations is a problem, and even passed a law known as a Sunrise Act stating that “regulation should not be imposed on any profession or occupation unless required for the protection of the health, safety, or welfare of the residents of the state.”[23] The Board’s regulation of equine dental practitioners plainly does not meet that standard, as there is no evidence whatsoever showing that the widespread and historically well-established practice of non-veterinarians taking care of horses’ teeth presents any genuine problems for horses or their owners—quite the contrary. Instead of protecting the public, the prohibition on equine dental practitioners reduces competition, drives up prices, reduces the quality of services and destroys innovation.

Texas law further provides “if the legislature finds that it is necessary” to regulate a given occupation, that should be done “in the least restrictive manner available,” starting with “a system of registration by which practitioners . . . may register with a designated state agency, but without the imposition of prequalfications” or credentials of any kind.[24] Unfortunately, the Board has chose to ignore those requirements, bypassing a less restrictive registration approach in favor of full-blown occupational licensing. Simply put, the Board’s decision to regulate equine dental practitioners out of business flies in the face of state law and cannot be reconciled with the requirements that occupational regulations be necessary to protect the health, safety, or welfare of the public.

The State Constitutional Right to Economic Liberty

The Texas Constitution protects Texans’ right to earn an honest living in the occupation of their choice subject only to reasonable government regulation.[25] The state Constitution likewise requires the government to accord citizens “equal rights” under the law, meaning the government may not arbitrarily treat similarly situated people differently—or differently situated people the same—when doing so is detrimental to their interests.[26] Finally, the Texas Constitution prohibits the creation of monopolies by the government, which is precisely what the State Board has done by arbitrarily giving untrained, inexperienced and ill-equipped veterinarians the exclusive right to perform equine dental services.

The Veterinary Licensing Act violates all three of these constitutional principles. First, Texas’ arbitrary law does not afford equine dental practitioners the same freedom from veterinary licensure requirements as is enjoyed by those who offer horseshoeing, tail docking, dehorning and castration services. Simply stated, the skill level, requisite knowledge and risks of injury from floating and extracting teeth are no greater than those associated with these other services; therefore, the regulatory distinction between floating and any of the other four practices is not justified. Because Texas law treats the occupation of equine dental practitioner differently than it treats similar occupations, it violates the equal protection requirement of Section 3 of Article 1 of the Texas Constitution.[27]

Second, the law’s requirement of obtaining a veterinary license is not tied to the legitimate goal of protecting the horse or the horse owner from receiving poor veterinary care by an unlicensed equine dental professional. Specifically, one can graduate from nearly all veterinary colleges, including Texas A&M, without taking a class focused on floating and extraction. And even when floating is taught as part of the core curriculum, it is often taught as a tiny fraction of a general large animal medicine course. There is no basis for requiringpeople to become veterinarians if all they want to do is float and extract teeth, since veterinary school does not teach proficiency in either. This fundamental unfairness reveals that the challenged regulation lacks a genuine connection to any legitimate public purpose. As such, it violates the Due Course of Law provision contained in section 19 of Article 1 of the Texas Constitution.[28]

Finally, the authors of the Texas Constitution of 1876 wisely included an anti-monopoly provision recognizing that “monopolies are contrary to the genius of a free government, and shall never be allowed.”[29] Through its efforts to restrict free entry into the marketplace by equine dental practitioners, the Board is creating a monopoly for the exclusive benefit of state-licensed veterinarians. It’s aggressive enforcement against equine dental practitioners—in the total absence of any documented problems or need for greater regulation—is naked economic protectionism on behalf of state-licensed veterinarians, plain and simple.

In addition to denying Duane, Stefan, Ali, Bob and Josh the freedom to work as equine dental practitioners, the Board’s actions are also forcing horse owners to pay higher prices for inferior services performed by mostly untrained, inexperienced and unqualified veterinarians whose right to do that work derives purely from their status as licensed veterinarians and not from their actual skill or ability.

The Regulation of Equine Dental Practitioners in the United States

There are more than nine million horses in the United States.[30] With nearly 980,000 horses, Texas ranks first in the nation in terms of equine population. Over 60 percent of horses in Texas are involved in showing and recreation, and 455,600 Texans are connected with the horse industry as owners, service providers, employees and volunteers. Even more participate as spectators.[31]

Additionally, according to the American Miniature Horse Association, the leading miniature horse association, there are nearly 170,000 miniature horses in America. Here again, Texas leads the nation with approximately 25,000 miniature horses, or nearly 15 percent of all miniature horses in the country.[32]

Texans—both service providers and owners—have good reason to be concerned about irrational regulations that affect horses, horse owners and those who work with them.

The regulation of horse teeth floaters is at a tipping point. Idaho, Louisiana, Nebraska and North Carolina have enacted legislation to restrict the practice to veterinarians, as have California and Tennessee.[33] Utah and Arkansas have recently sent cease-and-desist letters to equine dental practitioners.[34]

But a concerted effort in Virginia recently resulted in the enactment of legislation that liberalized the regulation of floaters. As a result, Virginia joined Connecticut, Illinois, Maryland, Florida and Vermont in exempting floaters from veterinary regulation or subjecting them more relaxed regulation.[35]

The Institute for Justice’s Minnesota Chapter is currently challenging in court a similar attempt by the Minnesota Board of Veterinary Medicine to prohibit non-veterinarians from floating horse teeth.

Litigation Team

Founded in 1991, the Institute for Justice is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication and outreach, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by government.

IJ filed the case of Boone, et al. v. Texas State Board of Veterinary Medical Examiners, et al. on April 23, 2008, in District Court for Travis County in Austin, Texas. The lead attorneys in this case are Clark Neily, senior attorney at IJ’s headquarters in Arlington, Va., and Lee McGrath, executive director of IJ’s state chapter in Minnesota.

IJ has successfully represented entrepreneurs nationwide who fought arbitrary government regulation, reviving the constitutional protection of the right to economic liberty—the right to earn an honest living in the occupation of one’s choice, free from excessive government regulation:

Swedenburg v. Kelly—The Institute for Justice successfully waged the nation’s leading legal battle to reestablish the American ideal of economic liberty when, on May 16, 2005, the U.S. Supreme Court struck down discriminatory laws that existed only to protect the monopoly power of large, politically connected liquor wholesalers. Vintner entrepreneurs Juanita Swedenburg and David Lucas joined wine consumers and IJ in filing this federal lawsuit as a challenge to the ban on direct interstate wine shipments in New York. The case raised issues of Internet commerce, free trade among the states, and regulations that hampered small businesses and the consumers they sought to serve.

Craigmiles v. Giles—The Institute for Justice secured a federal court victory striking down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously in December 2002 by the 6th U.S. Circuit Court of Appeals and not appealed. This marked the first federal appeals court victory for economic liberty since the New Deal.

Franzoy v. Templeman—IJ represented two interior designers in successfully challenging New Mexico’s titling law, which prohibited anyone except government-licensed interior designers from using the terms “interior design” or “interior designer.” The New Mexico Legislature amended the law, doing away with the speech restriction. The Governor signed the bill into law in April 2007.

Rissmiller v. Arizona Structural Pest Control Commission—In the fall of 2005, the Institute for Justice Arizona Chapter (IJ-AZ) challenged the state’s requirement that gardeners and landscape maintenance workers obtain three separate licenses simply to kill weeds with over the counter products. As a result of this litigation, gardeners throughout the state are now free to control weeds using products available to the average consumer.

Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—In March 2005, after being sued by the Institute for Justice Washington Chapter (IJ-WA) just seven months earlier, state bureaucrats exempted African-style hairbraiders from discriminatory cosmetology-licensing requirements.

Armstrong v. Lunsford—The Institute for Justice opened the hairbraiding market in Mississippi in 2005 when the state Legislature responded to this lawsuit, filed in federal court in 2004, by allowing IJ’s clients to continue their entrepreneurship without obtaining a needless government license.

Alf v. Arizona Structural Pest Control Commission—In 2004, IJ-AZ persuaded Arizona bureaucrats to change their position on requiring teenage entrepreneur Christian Alf to obtain a government-issued license for his after-school handyman business helping local residents prevent roof rats.
Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme.

ForSaleByOwner.com Corp. v. Zinnemann—Also in 2004, the Institute for Justice prevailed in persuading the U.S. District Court for the Eastern District of California to stop the state of California’s efforts to impose real estate broker licensing requirements on an informational website.

Wexler v. City of New Orleans—In 2003, the Institute for Justice successfully persuaded a federal court to strike down an absurd ordinance that prohibited booksellers from selling books on city sidewalks without a government-issued permit.

Clutter v. Transportation Services Authority—In 2001, IJ defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in Las Vegas’ limousine market.

Cornwell v. California Board of Barbering and Cosmetology—In 1999, IJ defeated California’s arbitrary cosmetology licensing requirement for African braiders.

Ricketts v. City of New York—The Institute for Justice successfully defended commuter-van entrepreneurs in 1999 in a fight against the government bus monopoly that would not allow any jitney entrepreneurs to provide service to consumers in underserved metropolitan neighborhoods in New York City.

Jones v. Temmer—In 1995, IJ helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ used this victory to help break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.

Uqdah v. D.C. Board of Cosmetology—In 1993, IJ’s work in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African-style hairbraiders.

For more information, contact:

Bob Ewing

Assistant Director of Communications

Institute for Justice

901 North Glebe Road, Suite 900

Arlington VA 22203-1854

[email protected]

Phone: (703) 682-9320 ext. 206

Cell: (202) 494-2567

Clark Neily

Senior Attorney

Institute for Justice

901 North Glebe Road, Suite 900

Arlington VA 22203-1854

[email protected]

Phone: (703) 682-9320 ext. 204

Cell: (202) 425-7499

Lee McGrath

Executive Director

Institute for Justice Minnesota Chapter

527 Marquette Avenue, Suite 1600

Minneapolis MN 55402-1330

[email protected]

Phone: (612) 435-3451 ext. 205

Cell: (612) 963-0296

[1] Report of the Committee on Equine Dentistry, Texas Board of Veterinary Medical Examiners at 3 (2004) (copy available from the Institute for Justice).

[2] Agenda Item C.3 Minutes of the Board Meeting of June 14, 2007 available at http://www.tbvme.state.tx.us/Board%20Minutes/
Minutes%2006-14-07.pdf

[3] Mitz, et. al. v. Texas State Board of Veterinary Medical Examiners, et al. Cause No. D-1-GN-07-002707 filed in the 419 Judicial District of District Court of Travis County, Austin, TX on August 28, 2007.

[4] Manuel G. Himenes Jr., DVM, “Understanding Your Horse’s Teeth” (2002) available at http://www.xcodesign.com/aaep/displayArticles.cfm?ID=28

[5] Tex. Occ. Code Ann. § 801.251 (emphasis added).

[6] Id. § 801.002(7).

[7] Id. § 801.004(2).

[8] Equine teeth floating and extraction are less dangerous than removing tails or extracting horns or testes. Tail docking is invasive and prone to infection. http://www.ars.usda.gov/research/publications/
publications.htm?SEQ_NO_115=189356 (last visited 08/21/07). Castration can be invasive and is risky, particularly where the extraction is done through a scrotal incision (for adult animals); even tie-off procedures (for younger animals) can cause extreme pain. www.nda.agric.za/docs/Beef-castrate.pdf (last visited 08/21/07). Dehorning is also invasive in that nerves and blood vessels permeate the horn, necessitating clamping with risks of brain damage and infection. http://www.omafra.gov.on.ca/english/livestock/beef/facts/
info_dehorn.htm (last visited 08/21/07).

[9] Tex. Occ. Code Ann. § 801.004(1).

[10] Required curriculum at Texas A&M’s College of Veterinary Medicine available at http://www.cvm.tamu.edu/dcvm/Curriculum/CurrOverView.shtml.

[11] Tuition and other costs to attend Texas A&M’s College of Veterinary Medicine available at http://www.cvm.tamu.edu/dcvm/admissions/tuition.shtml.

[12] Dana R. Boehm, M. Erin Mitchell, Amber C. Williams The Economic Impact of Veterinary Medicine on the State of Texas. December 2004. Pg. 7.

[13] Id at 4.

[14] Id at 6

[15] Id at 17

[16] Id. at 25

[17] TVMA’s list of Veterinarians Offering Equine Dental Services at http://www.tvma.org/Pet_Owners/EquineDentalVeterinarians.phtml (last visited 04/15/08)

[18] Tex. Occ. Code Ann. §§ 801.451-52, § 801.508.

[19] Tex. Occ. Code Ann § 801.503.

[20] Tex. Occ. Code Ann § 801.504.

[21] In the July 2007 issue of its publication, Board Notes, the State Board announced that, in its opinion, “no need existed to hold a (public) meeting to consider whether any further rules on equine dentistry were necessary.” Available at http://www.tbvme.state.tx.us/Board%20Notes/
07-2007%20Board%20Notes.pdf.

[22] Id.

[23] Tex. Occ. Code Ann. § 318.001(4).

[24] Id. § 318.003(a).

[25] Tex. Const. Art. 1, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land”). The “due course of law” provision has been held to protect citizens’ economic liberty. Texas Power and Light Co. v. City of Garland, 431 S.W.2d 511 (Tex.1968).

[26] Tex. Const. Art. 1 §3 states: “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

[27] Id.

[28] Tex. Const. Art. 1 §19 states: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

[29] Tex. Const. Art. 1 §26 states: “ Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.”

[30] The Economic Impact of the Horse Industry on the United States, by Deloitte Consulting LLP for the American Horse Council Foundation (2005) highlights available at http://horsecouncil.org/economics.html.

[31] Id.

[32] Planning for the future of the AMHA, American Miniature Horse Association (2007).

[33] Idaho Code § 54-2103 (2005); La. Rev. Stat. § 37:1514 (2005); Neb. Rev. Stat. § 71-1,154(2) (2005); NC Stat. § 90-179 (2a); Cal. Bus. & Prof. Code § 4826; and Tenn. Stat. § 63-12-103 (17)

[34] In November 2004, the American Association of Equine Practitioners, a trade association for veterinarians, approved a revised position on equine dentistry that limits equine dental procedures to licensed veterinarians and their employees.

[35] Va. Stat. §54-813 (2007); Conn. Stat. § 20-197 (2005); Ill. Stat. CS § 225, 115/4(15) (2005); Md. Stat. § 2-301(g)(8) (2005); Fl. Stat. § 474.203 (5)(b), 26 Vt. Stat. § 2403(2) (2005).