TMCEC Bench Book CHAPTER 17 ANIMALS. Dangerous Dogs. 1. Dogs that Are a Danger to Persons. Definitions:

Size: px

Start display at page:

Download "TMCEC Bench Book CHAPTER 17 ANIMALS. Dangerous Dogs. 1. Dogs that Are a Danger to Persons. Definitions:"

Emily Sims
6 years ago
Views:

1 CHAPTER 17 ANIMALS Dangerous Dogs 1. Dogs that Are a Danger to Persons Checklist 17-1 Script/Notes Definitions: Animal control authority is a municipal or county animal control office with authority over the area in which the dog is kept or the county sheriff in an area that does not have an animal control office. Serious bodily injury is an injury characterized by severe bite wounds or severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional and would require hospitalization without regard to whether the person actually sought medical treatment. Section , H.S.C., allows more stringent requirements to be imposed by municipal ordinance. Sec (1), H.S.C. Sec (2), H.S.C. Dangerous dog is a dog that: Makes an unprovoked attack on a person that causes bodily injury and occurs in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own; or Commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person. Sec (2)(A), H.S.C. Sec (2)(B), H.S.C. Dog is a domesticated canine. Secure means those steps taken by a reasonable person to ensure a dog remains on the owner s property including confinement of the dog in an enclosure that prevents the escape or release of the animal. Secure enclosure means a fenced area or structure that is locked; capable of preventing the entry of the general public including children; capable of preventing the escape or release of a dog; clearly marked as containing a dangerous dog; and in conformance with the requirements for enclosures established by the local animal control authority. Sec (3), H.S.C. Sec (4), H.S.C. Sec (4), H.S.C. 303

2 Owner is a person who owns or has custody or control of the dog. Sec (5), H.S.C. 1. Hearings to Determine if a Dog Is Dangerous: Dangerous Dog Hearing (Death or Serious Bodily Injury) This type of hearing is used to determine if a dog is dangerous, not whether a dog owner has failed to comply with an order declaring a dog to be dangerous. Sec (a)(1), H.S.C. c. d. e. f. g. Any person may file a sworn complaint alleging that a dog attack caused the death or serious bodily injury of a person. The complaint must be supported by an affidavit setting forth sufficient facts to establish probable cause to believe that the dog caused death or serious bodily injury by attacking, biting, or mauling a person. When a sworn complaint is filed, the court must issue a warrant authorizing the animal control authority to seize the dog and impound it in secure and humane conditions until the court orders the disposition of the dog. The warrant contains notice of the time and place of the hearing to determine if the dog caused the death of or serious bodily injury to a person. The hearing must be set within 10 days of issuing the warrant. Any interested person, including the county or city attorney, may present evidence at the hearing. A preponderance of evidence standard may be used to make the required findings. Sec (a)(1-2), H.S.C. See TMCEC Forms Book: Affidavit for Warrant to Seize a Dangerous Dog. Sec (b), H.S.C. See TMCEC Forms Book: Warrant: Seizure of a Dangerous Dog. There is no requirement that the warrant contain the notice of hearing. It is simply more efficient to use the warrant to provide the required notice. Sec (a), H.S.C. Sec (c), H.S.C. It is unclear whether a reasonable doubt or a preponderance of the evidence standard should be used in this determination. In Timmons v. Pecorino, 977 S.W.2d 603, (Tex. Crim. App. 1998), the Court of Criminal Appeals implicitly acknowledged some confusion regarding the nature 304

3 of these cases (civil or criminal) but refused to answer the question for lack of jurisdiction. 2. Attack Causing Serious Bodily Injury or Death If the court determines at a hearing that a dog causes the death of a person, the court must order the dog be destroyed. The dog must be destroyed by a licensed veterinarian, trained animal shelter or humane society personnel, or trained animal control authority personnel. If a dog causes serious bodily injury to a person, the dog may be destroyed, unless: (1) The dog was being used to protect persons or property, the attack occurred in a properly marked enclosure designed to prevent the dog s escape, and the injured person was at least eight years old and was trespassing; (2) The dog was not being used to protect persons or property, the attack occurred in an enclosure designed to prevent the dog s escape, and the injured person was at least eight years old and was trespassing; (3) The dog was being used for law enforcement purposes and the attack occurred during an arrest or other law enforcement action; (4) The attack occurred while the dog was defending a person from an assault or defending property from damage or theft by the injured person; or (5) The injured person was under eight years of age and the attack occurred in a secured enclosure designed to prevent a person under eight years of age from entering. Sec (d), H.S.C. Sec , H.S.C. Sec (f)(1-5), H.S.C. c. If there is a finding that no death or serious bodily injury occurred, the court must release Sec (d), H.S.C. 305

4 the dog to its owner or other authorized person. 3. Attack Causing Bodily Injury If a dog causes bodily injury to a person, the dog may not be destroyed, unless: (1) The court determines, after notice and hearing, that the animal is a dangerous dog; and (2) The owner failed to comply with the requirements upon learning that the dog is dangerous; or (3) The dog previously has been found to be dangerous and makes an unprovoked attack on another person outside it s secure enclosure. Sec (c), H.S.C. Sec (e), H.S.C. 4. Requirements for Owner of Dangerous Dog The owner learns the dog is dangerous if the owner knows of an attack, receives notice that a court has found the dog to be dangerous, or the owner is informed by the animal control authority. Not later than 30 days after learning that the person is the owner of a dangerous dog, the owner must: (1) Register the dog with the animal control authority; Sec (g), H.S.C. Sec (a)(1), H.S.C. (2) Restrain the dog in a secure enclosure or on a leash in the immediate control of the owner; Sec (a)(2), H.S.C. c. (3) Obtain $100,000 of liability insurance and provide proof of the insurance to the animal control authority; and (4) Comply with any applicable municipal ordinances or county regulations. If the owner does not comply with the requirements, he or she must deliver the dog to the animal control authority not later than 30 Sec (a)(3), H.S.C. Sec (a)(4), H.S.C. Sec (b), H.S.C. 306

5 d. e. f. g. days after learning the dog is a dangerous dog. The animal control authority must register all dangerous dogs located within its jurisdiction if the owner pays an annual $50 fee and presents proof of: (1) Current liability insurance; (2) Current rabies vaccination records; and (3) The secure enclosure for the dog. The animal control authority must issue to the owner a registration tag for all dangerous dogs. If the owner sells or moves the dog, the owner has 14 days to notify the animal control authority in the new jurisdiction of the dog s relocation. If the owner presents proof of prior registration and pays a $25 fee, the new animal control authority must accept the new registration and issue a new tag to be worn on the dog s collar. An unprovoked attack by a dangerous dog causing bodily injury is a Class C misdemeanor. Sec (a)(2), H.S.C. Sec (a)(1)(A), H.S.C. Sec (a)(1)(B), H.S.C. Sec (a)(1)(C), H.S.C. Sec (b)(1), H.S.C. Sec (c), H.S.C. Sec (b) and (d), H.S.C. h. An unprovoked attack causing serious bodily injury to a person is a 3 rd degree felony. It is a 2 nd degree felony if the attack causes the death of a person. The owner is also subject to a $10,000 civil penalty. Sec (b), H.S.C. 5. Non-compliance Hearing See TMCEC Forms Book: Dangerous Dog Judgment. Any person may file an application with a municipal, county, or justice court alleging that a dog is dangerous or that the owner of a dangerous dog has failed to comply with the requirements under Section (a), H.S.C. Sec (c), H.S.C. The court must set a hearing and give written notice of the time and place of the hearing to the owner of the dog and the person making the complaint. Sec (b)(1), H.S.C. c. The hearing should be held not later than 10 days after the dog is seized. Sec (a), H.S.C. There is a contradiction in the 307

6 d. e. f. g. h. At the hearing, any interested party, including the city or county attorney, may present evidence. If the court finds a lack of compliance, it shall order the seizure of the dog and impound the animal in secure and humane conditions pending the owner s compliance. The owner has 10 days to comply with the requirements to own a dangerous dog. If the owner does not comply, on the 11 th day after seizure, the court must order the humane destruction of the dog. If the court orders the seizure of the dog, but is unable to locate the owner, the court may order the humane destruction of the dog 15 days after the date of impoundment. The owner is liable for all fees or costs assessed for the seizure, acceptance, impoundment, or destruction of the dog. The owner or person filing the action may appeal the determination of the trial court in the same manner as any other appeal. However, there are no provisions for dealing with the dog during the pendency of the appeal. methodology for dangerous dog hearings set forth in Chapter 822. Specifically, (c) states that if, after notice and hearing to determine whether an owner of a dangerous dog has failed to comply with the requirements of Section (a)(1)-(4), H.S.C., the court finds a failure to comply, it shall order the seizure of the dog. However, (a) states that such a compliance hearing must be held not later than 10 days after the seizure. This apparent conflict can be resolved if the dog is seized pursuant to another seizure provision (e.g., a quarantine or dog-at-large ordinance). Sec (c), H.S.C. Sec (e), H.S.C. Sec (f), H.S.C. Sec (d), H.S.C. Sec (d), H.S.C. 308

7 CHAPTER 17 ANIMALS Dangerous Dogs 2. Dogs that Are a Danger to Animals Checklist 17-2 Script/Notes Definitions: Dog and Coyote includes a crossbreed of a dog and coyote. Livestock is cattle, horses, mules, asses, sheep, goats, and hogs, including grass-eating or plant-eating, single-hoofed or cloven-hoofed mammals that are not indigenous to this state and are known as ungulates, including animals from the swine, horse, tapir, rhinoceros, elephant, deer, and antelope families. Worry means to grasp by the throat with the teeth and lacerate or to kill or injure by biting and shaking. The use of the word dog in this Checklist includes dogs, coyotes, and crossbreeds. Sec , H.S.C. The American Heritage Dictionary of the English Language, Fourth Edition The owner, keeper, or person in control of a dog that is accustomed to run, worry, or kill livestock, domestic animals, or fowl may not allow the dog to run at large. Each time a dog runs at large is a separate offense punishable by a fine of not more than $100. The owner of an attacked animal, or his or her agent, or a person witnessing an attack, may kill a dog that is attacking, is about to attack, or has attacked livestock, domesticated animals, or fowls. A person who kills a dog pursuant to this subchapter is not liable for damages to the owner of the dog. A person who finds a dog that is known or suspected to have killed livestock may impound the dog or deliver the dog to the owner or the animal control authority. The owner of the dog is liable for all damages caused by the dog and costs incurred to impound and care for the dog. No hunting license is required to kill a dog under this subchapter. Sec , H.S.C. Sec (b), H.S.C. Sec , H.S.C. Sec (b), H.S.C. Sec (c), H.S.C. Sec (e), H.S.C. 309

8 CHAPTER 17 MAGISTRATE S DUTIES Cruelly Treated Animals 3. Disposition of Cruelly Treated Animals Checklist 17-3 Script/Notes Definitions: Cruelly treated includes tortured, seriously overworked, unreasonably abandoned, unreasonably deprived of necessary food, care, or shelter, cruelly confined, or caused to fight with another animal. Sec , H.S.C. 1. Seizure of Cruelly Treated Animal. Sec , H.S.C. c. If a peace officer or an animal control officer has reason to believe that an animal has been or is being cruelly treated, the officer may apply to a municipal court in the municipality in which the animal is located for a warrant to seize the animal. On a showing of probable cause to believe that the animal has been or is being cruelly treated, the court or magistrate shall issue the warrant and set a time within 10 calendar days of issuance for a hearing in the municipal court to determine whether the animal has been cruelly treated. The officer executing the warrant shall cause the animal to be impounded and shall give written notice to the owner of the animal of the time and place of the hearing. Sec (a), H.S.C. Sec (b), H.S.C. Sec (c), H.S.C. 2. Hearing to Determine if an Animal has been Cruelly Treated. Sec , H.S.C. A finding in a court of competent jurisdiction that the owner of an animal is guilty of an offense under Section or , P.C., involving the animal is prima facie evidence at a hearing authorized by Section , H.S.C., that the animal has been cruelly treated. A statement of an owner made at a hearing provided for under this subchapter is not admissible in a trial of the owner for an Sec (a), H.S.C. Sec (b), H.S.C. 310

9 c. d. e. f. g. offense under Section or , P.C. Each interested party is entitled to an opportunity to present evidence at the hearing. If the court finds that the animal's owner has cruelly treated the animal, the owner shall be divested of ownership of the animal, and the court shall: (1) Order a public sale of the animal by auction; (2) Order the animal given to a nonprofit animal shelter, pound, or society for the protection of animals; or (3) Order the animal humanely destroyed if the court decides that the best interests of the animal or the public health and safety would be served by doing so. A court that finds that an animal's owner has cruelly treated the animal shall order the owner to pay all court costs, including costs of: (1) investigation; (2) expert witnesses; (3) housing and caring for the animal during its impoundment; (4) conducting any public sale ordered by the court; and (5) humanely destroying the animal if destruction is ordered by the court. The court may order that an animal subject to public sale or given to a nonprofit shelter, pound, or society for the protection of animals be spayed or neutered at the cost of the receiving party. The court shall order the animal returned to the owner if the court does not find that the animal's owner has cruelly treated the animal. Sec (c), H.S.C. Sec (d), H.S.C. Sec (e), H.S.C. Sec (f), H.S.C. Sec (g), H.S.C. 3. Sale of Disposition of Animal. Notice of an auction must be posted on a public bulletin board where other public notices are posted for the county or Sec , H.S.C. 311

10 municipality. At the auction, a bid by the former owner of a cruelly treated animal or the owner's representative may not be accepted. c. Proceeds from the sale of the animal shall be applied first to any costs owed by the former owner. The officer conducting the auction shall pay any excess proceeds to the justice or municipal court ordering the auction. The court shall return the excess proceeds to the former owner of the animal. If the officer is unable to sell the animal at auction, the officer may cause the animal to be humanely destroyed or may give the animal to a nonprofit animal shelter, pound, or society for the protection of animals. 4. Appeal Sec , H.S.C. An owner divested of ownership of an animal under Section may appeal the order to a county court or county court at law in the county in which the justice or municipal court is located. As a condition of perfecting an appeal, not later than the 10th calendar day after the date the order is issued, the owner must file a notice of appeal and an appeal bond in an amount determined by the court from which the appeal is taken to be adequate to cover the estimated expenses incurred in housing and caring for the impounded animal during the appeal process. Not later than the fifth calendar day after the date the notice of appeal and appeal bond is filed, the court from which the appeal is taken shall deliver a copy of the court's transcript to the county court or county court at law to which the appeal is made. Not later than the 10th calendar day after the date the county court or county court at law, as appropriate, receives the transcript, the court shall dispose of the appeal. The decision of the county court or county court at law under this section is final and may not be further appealed. While an appeal under this section is pending, the animal may not be: (1) sold or given away as provided by Sections and , 312

11 H.S.C.; or (2) destroyed, except under circumstances which would require the humane destruction of the animal to prevent undue pain to or suffering of the animal. 313

12 This page intentionally left blank 314

Dangerous Dogs and Texas Law

Dangerous Dogs and Texas Law ANDREW W. HAGEN JUDGE, MUNICIPAL COURT OF UVALDE 2015-2016 Texas Animal Statutes Health and Safety Code, Title 10, Health and Safety of Animals Sections 821 through 829 Chapter