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Animal Welfare Legal IssuesBastrop Wildfire Training

September 20, 2011

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Animal Welfare Legal Issues

David C. WellsCo-Chair, Animal Welfare CommitteeAustin Bar Associationwellsdc@wellslawoffice.comKelley Dwyer, Rebecca WhitehouseCo-Chairs

Based in part on a presentationprepared by Stacy Wolf, Senior Director, Legislative Services & Anti-Cruelty Training, ASPCA

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What is "Animal Law"?Rights and responsibilities of humans in relation to

animals.Dogs, cats, horses, other "pet" animals, livestockProperty lawHealth & safety lawsCriminal lawMunicipal/county lawTexas Health & Safety Code Sec. 821.001. 

“DEFINITION.  In this subchapter, ‘animal’ includes every living dumb creature.”

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Ownership and Seizure of Animals

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Who has Power to Seize Dogs and When?"Stray" dogsLeft to local ordinance and regulation, no mention in

Health & Safety CodeAustin: a city employee may seize unrestrained

dogs, including on private property with owner's permission. City Code Sec. 3-4-3.

"Restrained" means leashed when with the owner or behind a fence.

Bastrop: citizen or animal control officer may seize animals at large and turn them over to animal control. Code of Ordinances Sec. 2.04.005(b).

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Dogs that have caused death or serious bodily injury to a person. Tex. Health & Safety Code Sec. 822.002

"Animal control authority" has power to seize them.Dog is impounded for a minimum of 10 days (rabies

observation)A court shall order the dog "destroyed" if it finds the

dog caused the death of a person.A court may order the dog "destroyed" if it finds the

dog caused serious boldily injury to a person.

Who has Power to Seize Dogs and When? (cont.)

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Dog or coyote attacking livestock (Sec. 822.013):May be killed by a person witnessing an attack or the

owner of the animal(s) who were or are being attacked. Includes dogs who are "about to attack" livestock, whatever that means.

May be seized by animal control officersMay be seized by persons who find the dog on their

property, then turned over to the owner or animal control.

Who has Power to Seize Dogs and When? (cont.)

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NOTE the distinction between animal control authorities and private citizens.

Most statutes and regulations only address animal control, law enforcement.

Who has Power to Seize Dogs and When? (cont.)

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State law governs seizure in cruelty cases.

Seizure of cruelly-treated animals: Health & Safety Code Ch. 821, Subch. B

Peace officer or animal control officer may seize an animal with "reason to believe" animal has been "cruelly treated" ("tortured, seriously overworked, unreasonably abandoned, unreasonably deprived of necessary food, care, or shelter, cruelly confined, or caused to fight with another animal“)

Seizure of animals that are suspected victims of cruelty

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Hearing must be held within 10 days. Statements at this hearing are not admissible in a prosecution of the animal's owner for animal cruelty.

Upon finding of cruelty, court can order the animal:Sold at auctionGiven to a nonprofit or public animal shelter"Humanely destroyed" if it is in the animal's best interest

or the best interest of public safety

Very limited rights of appeal for animal owners.This means very little caselaw.

Seizure of animals that are suspected victims of cruelty (cont.)

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Animals surrendered without identification: Austin and Bastrop: 3 days.

Animals surrendered with identification: Austin: 3 days Bastrop: 10 days, plus a requirement that animal control attempt to

locate the owner

Animals surrendered by the owner: Austin: does not specifically say Bastrop: animal becomes property of the city immediately

Impounded animals must have sufficient food and water. Tex. Health & Safety Code Sec. 821.002(a)

Person may enter a shelter to feed animals left more than 12 hours without food or water, may recover costs Sec. 821.002(b)

How long do shelters have to “hold” seized dogs?

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If no one has come forward claiming ownership of the animal, it becomes the property of the city or county.

AdoptionPicked up by rescue groupEuthanasia

City of Austin prohibits euthanasia of animals by animal shelter for non-health or behavioral reasons when kennel space is available.

City of Bastrop does not have that prohibition.

What Happens after the “Hold” period Expires?

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Yes, if it is deemed to be in the animal's best interest.

"The health authority may destroy an animal earlier than three business days after the date of impound if the health authority obtains an opinion from a veterinarian stating that the animal is sick or injured and that destruction is necessary to avoid unnecessary suffering by the animal." Austin City Code Sec. 3-1-26(B).

Bastrop's Code does not specifically address this issue.

Can Shelters Euthanize during the hold period?

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"Ownership" not defined by state statute.Austin: "a person who owns, feeds, keeps,

maintains, or harbors an animal or who knowingly allows an animal to remain on the person’s property." City Code Sec. 3-1-1(9)

Bastrop: "any person or entity having temporary or permanent custody of, owning, keeping, sheltering, in charge of, controlling, maintaining, having property rights to, or harboring one or more animals covered by this chapter." Code of Ordinances Sec. 201.001

How does one “prove” Ownership’?

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Proof of title:•Microchip•License•ID tag•Veterinary records•Photographs

How does one “prove” Ownership’? (cont.)

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No clear legal definition or standard.Typically at the end of any statutory hold period, if

animal remains unclaimed.Also relates to cruel treatment laws and procedures.

Owner can be divested of ownership if a court rules that cruel treatment occurred.

When does “ownership” end so that an animal can be legally adopted to another?

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Liability Concerns for Volunteers and Rescuers

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Volunteers who help non profit groups rescue animals in times of disasterSome legal protections if volunteer is acting within

the scope of their volunteer role.Volunteer Protection Act, 42 U.S.C. § 14501

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Only applies to volunteer assistance Must be “acting within scope of volunteer’s responsibilities”Properly licensed, certified or authorized (if required by law)Only applies to assistance to 501(c)(3) or (c)(4) non profitsOnly confers qualified immunity (for claims of negligence)Grossly negligent, willful, reckless behavior is not protected Harm cannot be caused by operation of vehicle, vessel or

aircraft where the state requires a license and insuranceLaw doesn’t protect nonprofit corporation itself, just

volunteersGeneral liability insurance is crucial

Volunteer Protection Act

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When can “rescue” result in criminal sanctions?Trespass. Tex. Pen. Code Sec. 30.05.Burglary. Tex. Pen. Code Sec. 30.02.Theft. Tex. Pen. Code Sec. 31.03.Animal cruelty. Tex. Pen. Code Sec. 42.09 (livestock

animals), Sec. 42.091 (assistance animals), Sec. 421.092 (nonlivestock animals)

Abandonment. Tex. Pen. Code Sec. 42.09(b)(1), 41.092(a)(1): "abandoning an animal in the person's custody without making reasonable arrangements for assumption of custody by another person." Health & Safety Code Sec. 821.021: "cruel treatment" includes "unreasonable" abandonment

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Austin and Bastrop both include people with custody or care of an animal in their definition of an “owner.”

Taking an animal into your custody by “rescuing” it could lead to criminal liability for animal cruelty for failing to provide adequate food, water, or shelter.

Possible animal cruelty liability of rescuers

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Remember mens rea! Need intent to desertHealth & Safety Code Sec. 821.021: "cruel

treatment" includes "unreasonable" abandonment.If animal is abandoned, this may negate theft claim

Do you commit abandonment when you leave animals behind in a disaster?

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Mens rea: What the defendant thinks mattersDo you commit theft when you remove a dog from its

home to save it from imminent disaster?Maybe no, if intent was to “rescue” and “reunite”Maybe yes, if intent was to remove and never return

Case of Malvin Cavalier and Bandit86 year-old Katrina refugee, forbidden to take dog Bandit

with him. Bandit was rescued after the storm and adopted by a Pittsburgh couple.

Cavalier sued when the adopters refused to return Bandit.The case settled and Bandit went back to New Orleans

Does it matter if a “rescuer” didn’t intend to “steal” a pet?

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Defenses to Criminal Charges“Necessity”Would a reasonable person believe the defendant’s actions were

necessary to avoid a greater harm?Was defendant at fault in creating the injury sought to be avoided?

(e.g. you can’t use the necessity defense if you are one who placed the animal in the dangerous situation to begin with).

Does the desirability and urgency of avoiding the threatened injury outweigh the desirability of the injury sought to be prevented by the criminal law defendant is charged with violating? (e.g. does the desirability of saving an animal from starvation

outweigh the desirability of preventing trespass and larceny?)Were there any reasonable alternatives to the defendant’s actions?

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New Animal Welfare Laws

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Pets in Protective OrdersSB 279, Protective Orders for Pets in Family MattersAllows inclusion of family pets in protective ordersHow does this relate to the subject of the protective

order trying to claim the pet from an animal shelter?

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HB 716, Feral Hog & Coyote Management Bill Expands rights of landowners to allow aerial hunting of

feral hogs, coyotes, and other "nuisance" animals.

HB 1919, Relating to a defense to prosecution for the offense of cruelty to nonlivestock animals under certain circumstances

Defeated in the Legislature.This would have allowed a defense to an animal cruelty

prosecution if a defendant claimed ‘reasonable fear of serious bodily injury’  to himself or another by a dog.

Feral Hogs and Coyotes

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Questions?