They Shouldn't Be Alone and Neither Should You.
|
|
Current Texas Laws Governing Animal Cruelty
State statutes - Two types of laws govern animal cruelty - civil and criminal. They differ in penalties and scope.
I. Civil
Chapter 821 of the Texas Health and Safety Code, entitled “Treatment and Disposition of Animals,” includes a number of provisions that address animal cruelty and the seizure or forfeiture of cruelly treated animals.
2. Seizure without warrants - warrantless searches
3. Open Fields doctrine
II. Criminal
Texas penal code §42.09 (general cruelty) and §42.10 (dog fighting) govern criminal animal cruelty. Penalties may include due jail, fines or both.
1. General Animal Cruelty Statute 42.09
A. Domesticated animals
Texas criminal laws only apply to domesticated animals, such as house pets and livestock defined as “domesticated living creature(s) or any wild living creature previously captured” and subject to a person’s care and control. Domestic animals are defined as animals that are habituated to live in or about the habitations of men, or that contribute to the support of the family.” Powers v. Palacios , 794 S.W.2d 493, 497 (Tex. App.—Corpus Christi 1990) (citing Black’s Law Dictionary 434 (5th ed. 1979)).
B. Custody test
To determine whether an animal is “domesticated,” the courts have referred generally to this definition but have relied more heavily on a custody test. Defined in the statute, custody includes “responsibility for the health, safety, and welfare of an animal subject to the person’s care and control, regardless of ownership of the animal.” Tex. Penal Code Ann. § 42.09(c)(4) (Vernon 2001). Presumably, the courts rationalize that if one has custody over an animal, that animal is considered domesticated. Because intent and knowledge may be hard to prove at trial, Texas courts have allowed juries to rely on circumstantial evidence to sustain animal cruelty convictions.
Note: Because civil statutes are broader and have a more narrow definition of cruelty, a suspect who could not be prosecuted criminally could still be held liable under civil laws.
2. Dog fighting statute Texas Penal Code §42.10 (supplements §42.09)
A. Texas State Law on Dog Fighting - Statutory language
(a) A person commits an offense if the person intentionally or knowingly:
(1) causes a dog to fight with another dog;
(2) participates in the earnings of or operates a facility used for dog fighting;
(3) uses or permits another to use any real estate, building, room, tent, arena, or other property for dog fighting;
(4) owns or possesses dog-fighting equipment with the intent that the equipment be used to train a dog for dog fighting or in furtherance of dog fighting;
(5) owns or trains a dog with the intent that the dog be used in an exhibition of dog fighting; or
(6) attends as a spectator an exhibition of dog fighting.
(b) In this section:
(1) “Dog fighting” means any situation in which one dog attacks or fights with another dog.
(2) “Dog-fighting equipment” has the meaning assigned by Article 18.18(g), Code of Criminal Procedure.
(c) A conviction under Subsection (a)(2) or (3) may be had upon the
uncorroborated testimony of a party to the offense.
(d) It is a defense to prosecution under Subsection (a)(1) that the actor
caused a dog to fight with another dog to protect livestock, other
property, or a person from the other dog, and for no other purpose.
(e) An offense under Subsection (a)(4), (5), or (6) is a Class A
misdemeanor. An offense under Subsection (a)(1), (2), or (3) is a
state jail felony.
B. Federal law - Dogfighting is a federal crime
Federal enforcement of dogfighting falls under the Animal Fighting Prohibition Enforcement Act of 2007, which targets individuals directly involved in animal blood sports and prohibits interstate trafficking of animals for fighting. It is a federal felony to sponsor, exhibit, buy, sell, deliver, possess, train or transport an animal for participation in an animal fighting venture. This crime is punishable by a term of imprisonment of five years and a fine of $250,000.
The Animal Fighting Spectator Prohibition Act, included in the 2014 Farm Bill, makes it a federal misdemeanor to knowingly attend a fight as a spectator and a federal felony to knowingly bring a minor under the age of 16 to a dogfight or cockfight (punishable by up to 3 years in prison and a $250,000 fine or by up to one year in prison and a $100,000 fine).
C. Dogfighting is part of a broader criminal subculture
D. Dogfighting subculture is common and pervasive in Texas
E. Cities across U.S. are addressing dogfighting as part of broader crime fighting initiatives to target gangs, narcotics and illegal weapons
III. Dog Chaining in Texas - Issue Overview
As of January 2022, Texas law prevents the use of chains and fixed law loopholes. Supporters of this law include the Texas Animal Control Association (TACA), Texas Veterinary Medical Association (TVMA), Texas Municipal Police Association (TMPA), Combined Law Enforcement Agencies of Texas (CLEAT), Texas Municipal League(TML).
The law prohibited the use of chains, required access to water, required adequate shelter to protect dog from prolonged periods in extreme weather, and deleted the mandatory 24-hour waiting period for officers to issue citations. for more info on this topic please see the Texas Humane Legislation Network at www.thln.org.
I. Civil
Chapter 821 of the Texas Health and Safety Code, entitled “Treatment and Disposition of Animals,” includes a number of provisions that address animal cruelty and the seizure or forfeiture of cruelly treated animals.
- Using civil code, judge can order seizure of animals and restitution (i.e., payment)
- Unlike criminal laws, civil statutes do not differentiate between domestic and wild animals
- Unlike criminal laws, civil law does not require a “custody” test.
- Local animal control authorities who have reason to believe that an animal is or has been cruelly treated may apply to the county justice court for a warrant to seize the animal. Tex. Health & Safety Code Ann. § 821.022(a). On a showing of probable cause, the court shall issue a warrant and set a hearing within ten days of its issuance to determine whether the animal has been cruelly treated. The officer is then able to execute the warrant and impound the animal; written notice of the hearing shall be given to the owner.
2. Seizure without warrants - warrantless searches
- Texas courts allow warrantless seizure via “open fields doctrine” and “emergency“ doctrine which has been used to uphold dog fighting convictions (Rogers v. State, 760 S.W.2d 669 (Tex. App. 1988)).
3. Open Fields doctrine
- In situations where cruelly treated animals are in open view of neighbors and passersby, the courts have extended the “open fields doctrine” to permit warrantless entry. In the McCall case, the defendant kept twelve dogs on his property; the dogs were emaciated and infested with ticks. McCall v. State , 540 S.W.2d 717 (Tex. Crim. App. 1976). Humane society volunteers filed a complaint with authorities and subsequently seized the dogs to medically treat them. In rejecting the defendant’s position that the seizure was unconstitutional, the court stated that it is “well recognized that the Fourth Amendment protects people and not places. What a person knowingly exposes to the public is not subject to Fourth Amendment protection.”
II. Criminal
Texas penal code §42.09 (general cruelty) and §42.10 (dog fighting) govern criminal animal cruelty. Penalties may include due jail, fines or both.
1. General Animal Cruelty Statute 42.09
- Cruelty covers both affirmative acts (torture, killing injuring) and failing to act (failing to provide food, shelter, care, abandoning). Punishment depends on type of cruelty.
- §42.09 cruelty to livestock animals (§42.092 cruelty to non-livestock animals)
A. Domesticated animals
Texas criminal laws only apply to domesticated animals, such as house pets and livestock defined as “domesticated living creature(s) or any wild living creature previously captured” and subject to a person’s care and control. Domestic animals are defined as animals that are habituated to live in or about the habitations of men, or that contribute to the support of the family.” Powers v. Palacios , 794 S.W.2d 493, 497 (Tex. App.—Corpus Christi 1990) (citing Black’s Law Dictionary 434 (5th ed. 1979)).
B. Custody test
To determine whether an animal is “domesticated,” the courts have referred generally to this definition but have relied more heavily on a custody test. Defined in the statute, custody includes “responsibility for the health, safety, and welfare of an animal subject to the person’s care and control, regardless of ownership of the animal.” Tex. Penal Code Ann. § 42.09(c)(4) (Vernon 2001). Presumably, the courts rationalize that if one has custody over an animal, that animal is considered domesticated. Because intent and knowledge may be hard to prove at trial, Texas courts have allowed juries to rely on circumstantial evidence to sustain animal cruelty convictions.
Note: Because civil statutes are broader and have a more narrow definition of cruelty, a suspect who could not be prosecuted criminally could still be held liable under civil laws.
2. Dog fighting statute Texas Penal Code §42.10 (supplements §42.09)
- The Texas statute is broad and prohibits a wide number of activities relating to dog fighting. One commits an offense under the statute for intentionally or knowingly causing a dog to fight and includes attending a dog fight as a spectator, as well as participating in the earnings or operation of a dog fighting facility.
A. Texas State Law on Dog Fighting - Statutory language
(a) A person commits an offense if the person intentionally or knowingly:
(1) causes a dog to fight with another dog;
(2) participates in the earnings of or operates a facility used for dog fighting;
(3) uses or permits another to use any real estate, building, room, tent, arena, or other property for dog fighting;
(4) owns or possesses dog-fighting equipment with the intent that the equipment be used to train a dog for dog fighting or in furtherance of dog fighting;
(5) owns or trains a dog with the intent that the dog be used in an exhibition of dog fighting; or
(6) attends as a spectator an exhibition of dog fighting.
(b) In this section:
(1) “Dog fighting” means any situation in which one dog attacks or fights with another dog.
(2) “Dog-fighting equipment” has the meaning assigned by Article 18.18(g), Code of Criminal Procedure.
(c) A conviction under Subsection (a)(2) or (3) may be had upon the
uncorroborated testimony of a party to the offense.
(d) It is a defense to prosecution under Subsection (a)(1) that the actor
caused a dog to fight with another dog to protect livestock, other
property, or a person from the other dog, and for no other purpose.
(e) An offense under Subsection (a)(4), (5), or (6) is a Class A
misdemeanor. An offense under Subsection (a)(1), (2), or (3) is a
state jail felony.
B. Federal law - Dogfighting is a federal crime
Federal enforcement of dogfighting falls under the Animal Fighting Prohibition Enforcement Act of 2007, which targets individuals directly involved in animal blood sports and prohibits interstate trafficking of animals for fighting. It is a federal felony to sponsor, exhibit, buy, sell, deliver, possess, train or transport an animal for participation in an animal fighting venture. This crime is punishable by a term of imprisonment of five years and a fine of $250,000.
The Animal Fighting Spectator Prohibition Act, included in the 2014 Farm Bill, makes it a federal misdemeanor to knowingly attend a fight as a spectator and a federal felony to knowingly bring a minor under the age of 16 to a dogfight or cockfight (punishable by up to 3 years in prison and a $250,000 fine or by up to one year in prison and a $100,000 fine).
C. Dogfighting is part of a broader criminal subculture
- Dogfighting is a gateway crime with an increasing number of juveniles involved as part of gang activity.
- Almost all raids involve seizure of cash, illegal drugs and illegal weapons.
- A study by Michigan State University found that in more than two dozen raids on dogfights, in virtually every instance police also seized illegal narcotics and weapons.
- Police seized $250,000 in cash during another 2004 raid in Georgia.
- Dogfight raids have resulted in seizures of more than $500,000, and it is common for $20,000 - $30,000 to change hands in a single fight.
D. Dogfighting subculture is common and pervasive in Texas
- As part of an investigation of a major dogfighting ring in east Texas, investigators found dogfighting is on the rise and widespread in Texas with links to dogfighting networks in other states and Mexico. Participants did drugs, made deals to sell cocaine and fence stolen property while they enjoyed “watching pit bulls tear each other apart” where a single wager is $40,000. (New York Times, December 6, 2008)
- Despite direct links to other criminal activity and large amounts of cash involved, sentences in Texas have been light and prosecutors are often reluctant to prosecute or opt for light sentences, opting for probation or dropping charges. (Houston Press, March 3, 2010 “That Big Bang of a Dog-Fighting Bust Turns into a Weak Whimper in the Courtroom”)
- In September 2019 the Grimes County Sheriffs office working with Houston Humane Society busted a dogfighting ring and charged the perpetrator with 15 counts of animal cruelty to a non-livestock animal, class A misdemeanors. Conviction of a class A misdemeanor carries up to a year in jail or up to a $4,000 fine.
E. Cities across U.S. are addressing dogfighting as part of broader crime fighting initiatives to target gangs, narcotics and illegal weapons
- Communities across the United States are aggressively targeting dogfighting by coordinating local and regional dogfighting task forces.
- "It's clear that when you have dogfighting, drugs and gambling and other criminal subcultures follow," said Mark Plowden, a spokesman for the South Carolina Attorney General's Office, which in 2004 created a dogfighting task force.
- In Chicago, Illinois, a special police unit is devoted to investigating cases of abuse due to the strong connection between dogfighting and other gang related crimes.
- In 2005, the Las Angeles police formed an Animal Cruelty Task Force.
III. Dog Chaining in Texas - Issue Overview
As of January 2022, Texas law prevents the use of chains and fixed law loopholes. Supporters of this law include the Texas Animal Control Association (TACA), Texas Veterinary Medical Association (TVMA), Texas Municipal Police Association (TMPA), Combined Law Enforcement Agencies of Texas (CLEAT), Texas Municipal League(TML).
The law prohibited the use of chains, required access to water, required adequate shelter to protect dog from prolonged periods in extreme weather, and deleted the mandatory 24-hour waiting period for officers to issue citations. for more info on this topic please see the Texas Humane Legislation Network at www.thln.org.
Copyright 2023, Find Your Riley Fund. No information contained herein constitutes or is meant to constitute legal advice.