IJ Continues to Knock Horse Sense Into Texas Bureaucrats

July 27, 2010

By Clark Neily

IJ’s efforts to corral an out-of-control Texas bureaucracy have heated up again, as we continue our long-running battle to stop the Lone Star State’s veterinary cartel from outlawing horse teeth floating. Before a packed Austin courtroom on Wednesday, June 30, lawyers from IJ’s headquarters and our Austin-based state chapter launched a frontal assault on Texas bureaucrats’ vision of judicial abdication.

As loyal Liberty & Law readers know, teeth “floating” is a common animal husbandry practice that involves filing down sharp enamel points that can develop on a horse’s molars and prevent the horse from chewing its food properly. Horse teeth floaters have much in common with farriers, who not only shoe horses, but also trim and level their hooves.

For reasons that have nothing to do with public (or animal) welfare and everything to do with stifling fair competition, veterinary associations in various states, including Texas, have been clamoring for their friends on state vet boards to confine the practice of teeth floating to licensed veterinarians. Never mind the 2004 report by the Texas Board of Veterinary Medical Examiners’ Committee on Equine Dentistry, which found that “there are not enough veterinarians skilled in equine dentistry to meet the public’s needs” and that “[m]ost veterinarians do not feel comfortable performing dental procedures.”

So confident is the State Board of its ability to whitewash those findings and impose its will on horse owners in Texas, that it filed a motion this spring asking the judge to throw out IJ’s legal challenge and declare that—no matter how harmful the Board’s new policy on horse teeth floating might be, and no matter how obviously driven by the veterinary cartel—the courts can provide no meaningful check on the Board’s arbitrary exercise of government power in shutting down teeth floaters.

During a two-hour trial court hearing in June, we fought back against that perverse theory and explained that we—like the Texas Constitution—have a much different understanding of the role of the courts in protecting economic liberty. Our briefs and oral arguments documented in meticulous detail how the Board had simply ignored legal requirements that are specifically designed to ensure maximum public participation anytime state agencies make significant changes in enforcement policy, as the Board tried to do with horse teeth floating in our case.

In response, the Board offered a hodge-podge of arguments ranging from the merely unpersuasive to the patently absurd. The Board’s lawyers even tried to persuade the judge that although its campaign against horse teeth floaters is well into its third year, the Board actually has no generally applicable rule on horse teeth floating, and instead has been persecuting our clients and dozens of other teeth floaters on a purely “case-by-case” basis.

This did not appear to sit well with the trial court judge, who seemed to recognize a bureaucratic snow-job when she saw one. We are still awaiting a ruling on the state’s motion for summary judgment and our cross-motion, and we remain optimistic that freedom, common sense and our clients will still be standing when the dust settles.

Clark Neily is an IJ senior attorney.

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