This article provides an in-depth look at the intricacies of Texas animal cruelty laws. Both the criminal and civil statutes are discussed, as is relevant case law. Additionally, this article introduces a new Texas law governing the keeping of dangerous wild animals.
I. INTRODUCTION
“The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society’s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.” Bueckner v. Hamel , 886 S.W.2d 368, 377-78 (Tex. App.—Houston [1st Dist.] 1994) (Andell concurrence) (emphasis in original).
In the state of Texas, animal cruelty laws have been in place since 1879. While earlier versions of the laws dealt exclusively with cattle and livestock, today Texas cruelty laws protect a variety of animals from inhumane treatment. Both civil and criminal laws have been enacted to govern the treatment of animals, and together these laws define which actions are “cruel,” explain what punishment or penalties can be imposed against those whom cruelly treat animals, and describe minimum care requirements for impounded and wild animals.
This article will explore the intricacies of Texas animal cruelty laws, intertwining both case law and the statutes. Among the topics covered in this discussion are: criminal prosecution of animal cruelty situations, permissible defenses, civil seizure and forfeiture of cruelly treated animals, warrantless seizures, and newly enacted laws that govern the keeping of dangerous wild animals.
II. CRIMINAL PROSECUTION OF ANIMAL CRUELTY
A. Generally
Under Texas law, there are two criminal statutes that pertain to animal cruelty situations. First, Section 42.09 of the Texas Penal Code prohibits generally the intentional or knowingly cruel treatment of animals. Tex. Penal Code Ann. § 42.09 (Vernon 2001). The criminal statute specifies to which animals it applies, details what types of action constitute “cruelty”, outlines permissible defenses, and indicates the varying degree of punishments that may be imposed depending on the act sustaining the conviction. Each of these areas is discussed below in further detail.
Second, the legislature has also enacted an anti-dog fighting provision that supplements the general cruelty statute. Tex. Penal Code Ann. § 42.10 (Vernon 2001). The statute is broad and prohibits a wide number of activities relating to dog fighting. As expected, one commits an offense under the statute for intentionally or knowingly causing a dog to fight with another. However, to illustrate the breadth of the statute, Section 42.10 also deems offensive activities such as merely attending a dog fight as a spectator, or participating in the earnings or operation of a dog fighting facility.
B. Scope of Texas Criminal Cruelty Laws
Compared to the criminal cruelty statutes of other states, Texas animal cruelty laws are narrow in their scope. Generally, state criminal cruelty laws are written to protect “every living dumb creature” or “every living vertebrate, except humans.” In a handful of states, the laws do exclude certain types of animals from the applicability of cruelty laws, such as fish, crustaceans, or invertebrates, but these exceptions are the exception rather than the rule. For the most part, these state laws do not differentiate between wild or domesticated animals, and the protection afforded by these laws would cover both types of animals.
However, Texas laws are surprisingly narrow and only apply to any “domesticated living creature or any wild living creature previously captured.” Tex. Penal Code Ann. § 42.09(c)(2) (Vernon 2001). “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)). 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.
Recently, Texas courts grappled with the issue of custody and control in the context of two animal cruelty incidences. First, in a case involving a man who found a sick stray puppy and intentionally drove to a rural area to abandon it, the court found that the defendant exercised sufficient custody over the animal and upheld his animal cruelty conviction. Rather than relying solely on the statutory definition of custody, the court stated that “[c]ustody may be interpreted as guarding or keeping, or taking immediate charge and control; the term is elastic.” McDonald v. State , 64 S.W.3d 86, 89 (Tex. App.—Austin 2001). The court reasoned that, by discovering the puppy in his van and deciding to drive it to a remote area with the intention of leaving it there, the defendant exercised sufficient control over the puppy and accordingly had custody over it.
However, not every court in Texas has adopted this elastic interpretation of custody. In another recent situation involving the alleged torture and killing of a homeless cat, a court in Waco conveyed “custody” as being akin to legitimate ownership and control of the animal. In March of 2001, the two defendants in the case shot, beat, skinned, and beheaded the cat. Despite the fact that the cat had been named, was friendly, and was consistently cared for by some restaurant workers, the defense successfully argued that because no one had legal ownership of the cat, it was not considered domesticated and was not protected under the law. As a result, one defendant was acquitted and charges against his co-defendant were dropped in April of 2002. Arguably, the defense’s position of equating custody to legal ownership directly contradicts both the statutory language (deeming custody as responsibility regardless of ownership) and the analysis set forth in McDonald .
If upheld, the decision of the Waco court may further narrow the scope of Texas criminal cruelty laws by disallowing protection for feral or homeless animals, even though they are traditionally considered domestic and may be in someone’s care. Critics have voiced their concerns over the controversial decision and the unjustified narrow scope of the law in general.
C. Requisite Scienter
Under Texas criminal laws, in order to sustain an animal cruelty conviction, the prosecution must prove the intentional or knowingly mens rea of the defendant. A person acts with “intent” with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct. Pine v. State , 889 S.W.2d 625, 629 (Tex. App.—Houston [14th Dist.] 1994). A person acts with “knowledge” when he is aware of the nature of his conduct, or that the circumstances surrounding the conduct exist. Id.
Because intent and knowledge may be hard to prove at trial, Texas courts have allowed juries to rely on circumstantial evidence of the requisite scienter to sustain animal cruelty convictions. Knowledge and intent may be inferred from the conduct of, remarks by, and circumstances surrounding the acts engaged in by the defendant. Id. In a handful of cases, the Texas courts have upheld animal cruelty convictions based on this permissible reliance on circumstantial evidence.
The Pine case involved a severely malnourished colt that was obviously suffering. The colt, whose ribs were visible through its skin, was wet and muddy and unable to stand on its own. The colt had no food particles in its teeth, indicating that it had not been eating, and was kept in an area near an open trench filled with raw sewage. The defendant owner of the colt argued that because another person was responsible for feeding the animals, he did not know the colt was in such horrible condition and, accordingly, the evidence was insufficient to sustain his conviction. The court rejected the defendant’s argument and explained that the presence of other uncared-for animals made it more probable than not that the defendant knew his animals were not receiving proper care. Furthermore, even if the defendant had delegated the actual feeding to another person, the court stated that it was ultimately the defendant’s responsibility to ensure that the animals were cared for. As a result, the court in Pine was able to uphold the animal cruelty conviction.
Another Texas case demonstrates that reliance on circumstantial evidence may be the only way to sustain some of the most egregious animal cruelty convictions. The Celinski case involved a defendant who burned his girlfriend’s cats in a microwave after poisoning them with acetaminophen, resulting in their death by euthanasia. Celinksi v. State , 911 S.W.2d 177 (Tex. App.—Houston [1st Dist.] 1995). The defendant offered no explanation as to what happened to the cats despite him being the only person present in the apartment when they became sick and the testimony of a veterinarian indicating that he had never heard of cats voluntarily ingesting acetaminophen, a drug that can be lethal to felines. Combined with these facts, the court relied on circumstantial evidence of cat hair in the microwave, and the presence of five to six ingested tablets in each cat to conclude that the defendant intentionally poisoned and tortured the cats, thus supporting the conviction.
D. Actions Constituting “Cruelty”: Affirmative Cruel Acts & Omissions
Texas law defines cruelty to include two general types of actions: affirmative acts and failing to act.
Affirmative cruel actions include:
- torturing an animal;
- transporting or confining an animal in a cruel manner;
- killing, seriously injuring, or poisoning an animal belonging to another without legal authority or the owner’s effective consent;
- causing an animal to fight with another;
- using a live animal as a lure in dog race training or in dog coursing on a race track;
- tripping a horse;
- injuring an animal belonging to another without legal authority or the owner’s effective consent; or
- seriously overworking an animal.
Tex. Penal Code Ann. § 42.09(a)(1), (4)-(10) (Vernon 2001).
The current statute does not provide a definition for “torture.” Prior versions of Texas criminal statutes defined torture of an animal as “every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted or allowed to continue…” McGinnis v. State , 541 S.W.2d 431, 431 (Tex. Crim. App. 1976). In McGinnis , the court focused on the words unnecessary or unjustifiable to conclude that the law, in some circumstances, contemplates that the infliction of pain and suffering is allowable. The law was subsequently amended to generally prohibit the “torture of an animal”, but no statutory guidance was provided as to the meaning of the term. In fact, courts recognized that a charge of “torturing” an animal was not sufficiently descriptive of the offense. Consequently, specific acts of torture had to be alleged. Cross v. State , 646 S.W.2d 514, 516 (Tex. App.—Dallas 1982).
Generally, in interpreting “torture” under the current statute, the court looks at the physical condition of the animal and the side effects of the cruel treatment. First, the court in Celinski relied on the physical condition of the cats (prior to their being euthanized) to find that the defendant’s actions of placing the cats in the microwave constituted torture. In a second case, the court found that the defendant’s amputation of his puppy’s ears without the benefit of anesthetic or antibiotics, causing severe inflammation and side effects, constituted “torture.” Bell v. State , 761 S.W.2d 847 (Tex. App.—Beaumont 1988). Not surprisingly, the court rejected the defendant’s excuse that he “chopped off” the dog’s ears because “veterinarians charged too much.” Id. at 849.
Transporting or confining an animal in a cruel manner is another affirmative act prohibited under Texas law. “Cruel manner” is defined by the statute as “a manner that causes or permits unjustified or unwarranted pain or suffering.” Tex. Penal Code Ann. § 42.09(c)(3) (Vernon 2001). Texas courts have also had the opportunity to interpret what actions constitute “confining in a cruel manner.” In Lopez v. State , 720 S.W.2d 201 (Tex. App.—San Antonio 1986) , the defendants were convicted of confining their dog in a cruel manner. The facts indicate that the dog was left inside the car in mid-July in San Antonio. The car had a T-top, and was parked in direct sunlight with only an inch and a half crack in the windows. Although there was no direct evidence indicating that the dog did not have adequate ventilation, the court nevertheless sustained the conviction by relying on circumstantial evidence and testimony from an officer that it was “very hot inside the car.” Id. at 201.
Texas law also prohibits causing one animal to fight with another. While Section 42.10 of the Texas Penal Code specifically prohibits dog fighting and activities connected to dog fighting, Section 42.09 is written to address all types of animals, provided that they are domesticated or a wild animal previously captured. In a case involving the fighting of game roosters, commonly referred to as “cockfighting,” the court applied this provision of the law to uphold the defendants’ convictions. Mejia v. State , 681 S.W.2d 88 (Tex. App.—Houston [14th Dist.] 1984).
2. Failure to Act
Texas law deems “cruel” situations where a person has failed to act or failed to provide care for an animal. Failing to act or provide care rises to the level of cruelty when it involves either: (1) failing to provide necessary food, care or shelter; or (2) abandoning unreasonably an animal. Tex. Penal Code Ann. § 42.09(a)(2)-(3). “Necessary food, care, or shelter” is statutorily defined to include “food, care, or shelter provided to the extent required to maintain the animal in a state of good health.” Id. § 42.09(c)(5). Texas courts have also clarified that necessary food means food sufficient in both quality and quantity to sustain the animal in question. Cross v. State , 646 S.W.2d 514, 516 (Tex. App.—Dallas 1982).
Texas courts have also expounded on what it means to unreasonably abandon an animal. In McDonald , the court found unreasonable the abandonment of an animal where the defendant was in possession of a stray puppy and dumped it in a rural area. McDonald v. State , 64 S.W.3d 86 (Tex. App.—Austin 2001). The court relied on the facts that the puppy was sick and without food. The court also went further to determine that, because he had custody over the sick animal, the defendant was required to either call the authorities or take it to a shelter, rather than dump it. Id. at 89.
E. Statutory Defenses
The Texas criminal cruelty statute outlines permissible defenses that a person could argue if he were charged with animal cruelty. While a defendant’s actions may technically fall within the cruelty definition, the law does recognize a limited number of circumstances in which injuring or killing an animal is allowable. First, Section 42.09 states clearly that one engaging in bona fide experimentation or scientific research has a viable defense to prosecution under the statute. Tex. Penal Code Ann. § 42.09(b).
Second, a person may kill an animal if he is in fear of bodily injury to himself or another person. Id. § 42.09(g). Similarly, in a situation where a person kills or seriously injures someone else’s animal without his consent, the law will not hold the person responsible if the animal was discovered on another’s property immediately after or in the act of killing or injuring livestock or another domestic animal. Id. § 42.09(e). Courts construe these defenses very strictly however. In a case involving a defendant who shot two domestic dogs that were chasing a deer and a fawn, the court refused to extend the defense to him. Bueckner v. Hamel , 886 S.W.2d 368 (Tex. App.—Houston [14th Dist.] 1994). The court reasoned that deer are not considered “domestic,” and because the dogs were not chasing a “domestic animal,” the defense did not apply. The defense also tried to argue, albeit unsuccessfully, that the dogs at issue were known to have attacked cattle on previous occasions. The court emphasized that an attack on a protected animal must be in progress, imminent, or recent. Attacks on cattle during prior months were not “recent.”
In another case involving the killing of a dog in defense of a person and property, the court stressed that the danger must be imminent, and a real or apparent necessity must exist to justify killing the animal. City of Garland v. White , 368 S.W.2d 12 (Tex. Civ. App. 1963). In this case, police officers shot and killed a dog that was reported as vicious. However, the dog was killed much later in the day compared to when the reports were originally made, and while the dog was in its owner’s garage and retreating into the house. The court held that the danger posed by the dog must be imminent, and that killing the dog later in the day did not meet this requirement. The court also called attention to the fact the officers did not try to shut door or contain the dog, but rather shot it right away.
A third enumerated statutory defense states that tripping a horse is allowable if it is done so for identification purposes or for veterinary care purposes. Tex. Penal Code Ann. § 42.09(f). Lastly, a person is allowed to kill an animal if it is generally acceptable and otherwise lawful. Id. § 42.09(h). This last provision is intended to address situations involving fishing, hunting, livestock management, or wildlife control.
F. Punishment
Often times, animal cruelty cases are not reported nor are they prosecuted. However, if a person is prosecuted and found guilty of animal cruelty, Texas law imposes different punishments based on the type of cruel action involved, whether the conviction was one of many offenses, or whether the defendant involved is a minor. If a minor has engaged in delinquent conduct constituting an offense under Section 42.09, the juvenile court shall order the child to participate in psychological counseling for a period to be determined by the court. Tex. Fam. Code Ann. § 54.0407 (Vernon 2002). This law pertaining to minors involved in animal cruelty conduct was only recently added in 2001.
For cruelty convictions involving depriving an animal of food or water, abandoning an animal, transporting an animal in a cruel manner, injuring someone else’s animal, and overworking an animal, the defendant will be punished with a Class A misdemeanor, which may include a fine up to $4,000, jail time up to a year, or both. Tex. Penal Code Ann. § 42.09(d). If the conviction is a third offense involving these actions, the state may punish the defendant with a state jail felony. Id. Under Texas law, a state jail felony may include jail time ranging from 180 days to 2 years and a fine up to $10,000.
Some cruel actions warrant harsher punishments even on the first conviction. For cruelty offenses involving the torture, killing, seriously injuring, poisoning, fighting, or tripping of an animal, a state jail felony may be imposed on the first conviction. Id. § 42.09(g). If a defendant is convicted three times under these harsher penalties, he may be subject to a third degree felony sentence, which translates to imprisonment ranging from 2 to 10 years and a possible fine of up to $10,000.
While the criminal cruelty statutes enumerate the potential punishments for each type of conviction, in practice the courts impose a wide variance of punishments and sentences. More often that not, jail time is replaced with community service hours or probation. Additionally, fines imposed by the courts rarely reach the maximum amount. Critics blame the phenomenon on a combination of factors: the reluctance of the public to report animal cruelty situations, the courts’ unwillingness to take animal cruelty cases seriously, procedural errors, and the effect of prosecutorial discretion on whether charges will be filed and maximum punishments sought.
Lastly, if the owner of an animal is found guilty of an offense under Section 42.09, the courts may order that the animals be removed from the owner’s possession. This civil remedy is detailed in the next section examining the civil statutes and their seizure and forfeiture provisions.
III. A CIVIL REMEDY: SEIZURE OF CRUELLY TREATED ANIMALS
A. Generally
Generally, 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. Tex. Health & Safety Code Ann. § § 821.001-.025 (Vernon 2001). These civil statutes dictate how impounded animals shall be treated, discuss the regulation of dangerous dogs, and set forth registration requirements for keeping dangerous wild animals. See What About Wild Animals, infra . The discussion below only pertains to those statutory provisions that implicate animal cruelty issues.
The scope of civil laws is broader than criminal laws. The civil statute defines “animal” to include “every living dumb creature.” Tex. Health & Safety Code Ann. § 821.001. Unlike the criminal provisions, the civil statutes do not differentiate between domestic and wild animals, nor do they utilize any type of “custody” test. As a result, people could theoretically engage in actions that are not prosecutable under the Texas criminal laws, but they would be held liable for their actions under Texas civil laws. However, although the scope of these laws is broader, the civil statutes adopt a much narrower definition of what constitutes cruelty. The term “cruelly treated” includes: (1) tortured; (2) seriously overworked; (3) unreasonably abandoned; (4) unreasonably deprived of necessary food, care, or shelter; (5) cruelly confined; or (6) caused to fight with another animal. Id. § 821.021.
As a general matter, there are two main types of remedies available in the civil context: the court could award damages to the owner of a cruelly treated animal; or the court could order the seizure of a cruelly treated animal.
In situations where an animal has been wrongfully killed, the animal’s owner can bring suit to request damages for their loss. Texas law recognizes domestic animals as being personal property and allows owners to recover for its wrongful injury or killing. City of Garland v. White , 368 S.W.2d 12, 16 (Tex. Civ. App. 1963) (specifically addressing “dogs”). However, the court will usually only award actual damages, a measure that may seem inadequate to the sentimental value an owner may attach to their pet. In his concurring opinion, Justice Andell in Bueckner takes an interesting point of view regarding the inadequacy of awarding market value damages to those who have wrongfully lost their domesticated pets. Bueckner v. Hamel , 886 S.W.2d 368, 373 (Tex. App.—Houston [1st Dist.] 1994). He argues that animals may have value in their intrinsic or special capacities as companions and beloved pets. “People who love and care for animals should not be forced to accept as compensation for their loss the amount that the animal would bring in the market.” Id. at 374. Arguably, most pet owners would likely agree with him but courts are hesitant to award intrinsic value damage awards because such awards are speculative in nature.
B. Seizure of Cruelly Treated Animals
The greatest impact of the civil animal cruelty laws is their seizure provisions. Specifically, the law grants power to authorities to seize animals that have been cruelly treated. 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. Id. § 821.022(b). The officer is then able to execute the warrant and impound the animal; written notice of the hearing shall be given to the owner. Id. § 821.022(c).
At the hearing, each interested party is able to present evidence. For example, the authorities can put forth evidence that the animal’s owner has been found guilty of an animal cruelty offense under Section 42.09 of the Penal Code. The civil statute expressly states that a conviction under the criminal statute is prima facie evidence that the animal has been cruelly treated. Id. § 821.023(a). However, if a criminal prosecution has not yet been implemented against the animal’s owner, any statements made by the owner cannot be used against him at trial for an offense under the criminal provision. Id. § 821.023(b).
If the court does not find that the animal was cruelly treated, the civil statute dictates that the animal is returned to its owner. Id. § 821.023(g). However, if the court finds that the animal has been cruelly treated, the court can implement three different types of orders depending on the animals involved and their conditions. First, the court can order that the animal be sold at a public auction. Id. § 821.023(d)(1). This is usually the order granted in situations involving cruelly treated livestock and cattle. The law makes clear that if an animal is ordered to be sold, a bid by the former owner or a representative of the former owner will not be accepted. Id. § 821.024(a). If the court does order the animal sold at auction, the former owner of the animal may appeal the order. Id. § 821.025.
Second, in cruelty situations involving domestic animals or animals traditionally thought to be pets, the court may order that the animal be given to a nonprofit animal shelter or society. Id. § 821.023(d)(2). Lastly, the court may order that the animal be humanely destroyed if such action would be in the best interest of the animal or would best serve public safety and health. Id. § 821.023(d)(3). Neither of these orders is open for appeal by the former owner. The legislature specifically limited the right of appeal to cases where the animals were ordered sold at public auction. In a case involving the seizure of forty dogs and six cats, the court refused to extend this appeals privilege to a court mandate ordering that the animals be transferred to a cruelty prevention society. Pitts v. State , 918 S.W.2d 4 (Tex. Civ. App.—Houston [14th Dist.] 1995).
C. Warrantless Entries: Unreasonable Search and Seizure?
In some instances, the condition of a cruelly treated animal is so dire that authorities will seize the animal without first obtaining a warrant. While warrantless seizures do not follow the statutory procedures set forth in Section 821 of the Health and Safety Code, Texas courts have nevertheless found that these entries and seizures are permissible provided that the circumstances justify haste action. Specifically, Texas courts have adopted two different doctrines that allow for warrantless seizures: the “open fields” doctrine, and the “emergency doctrine.”
In Westfall v. State , 10 S.W.3d 85 (Tex. App.—Waco 1999) , the defendant challenged his animal cruelty conviction by arguing that warrantless entries by the county sheriff and Humane Society officers violated his Fourth Amendment rights protecting against unreasonable search and seizure. The defendant owned 300 head of cattle, many of which were starving. Some cows were so emaciated that they got stuck in mud near a creek and remained there until their death because they were so weak they couldn’t pull themselves out. After investigating the defendant’s property, the authorities called local humane society members to assist in caring for the surviving animals. The court held that there was no constitutional violation, and stated that in order to enjoy the protection afforded by the Fourth Amendment, one must first demonstrate a reasonable expectation of privacy in the area searched. Id. at 89 (citing Villareal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)). Additionally, the court recognized that a special limitation of Fourth Amendment protection was that it does not extend to “open fields.” In Westfall , the court deemed the fenced fields on which the defendant’s emaciated cattle were kept clearly constituted open fields—the barn was not located adjacent to residence, was not used or associated with intimate activities of the home, and the defendant offered no evidence that there was expectation of privacy. Id. at 90. The court concluded that because the defendant had no expectation of privacy in the fields or barn, he lacked standing to complain of the warrantless search. As a result, the defendant’s animal cruelty conviction for failing to provide necessary food or care to his cattle was upheld.
The “open fields doctrine” has also been used in the context of upholding an animal cruelty conviction for dog fighting. In Rogers v. State , 760 S.W.2d 669 (Tex. App.—Tyler 1988) , the court stated that the Fourth Amendment does not extend to undeveloped areas outside the curtilage of person’s house. In Rogers , a dog fighting pit was located on the defendant’s property in an open section of the woods nearly 400 yards from home. The court concluded that because the pit was obviously not within the near vicinity of the home, no search warrant was required to enter the property and seize the dogs.
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.” Id. at 720.
Texas courts have also upheld warrantless entries and seizures of cruelly treated animals under the “emergency doctrine.” This doctrine states that warrantless search and seizures are allowable when there is a need to act immediately to protect or preserve life, or prevent serious injury. This doctrine is typically reserved for situations involving the immediate need to rescue human life, but the court in Pine extended it to a situation involving an emaciated and malnourished colt that was removed from the defendant’s property so that it could be rushed to a veterinarian for medical care. Pine v. State , 889 S.W.2d 625 (Tex. App.—Houston [14th Dist.] 1994). In rejecting the defendant’s Fourth Amendment violation claim, the court stated “we have been unable to find a precedent for applying the emergency doctrine to an emergency involving saving the life of an animal” but explained that the factual situation presented in the case compelled the court to find that the deputy was presented with an emergency situation that made the warrantless seizure reasonable. Id. at 632.
IV. WHAT ABOUT WILD ANIMALS?
Recently, in September of 2001, the Texas legislature passed a set of laws that govern the keeping of dangerous wild animals. Subchapter E of Chapter 822, entitled “Dangerous Wild Animals,” generally states that a person may not own, harbor, or have custody of a dangerous wild animal for any purpose unless that person registers the animal with the county or local animal control agency. Tex. Health & Safety Code Ann. § § 822.101-.116 (Vernon 2001). The law defines “dangerous wild animal” to include animals such as lions, tigers, leopards, bears, and chimpanzees, among many others. Id. § 822.101(4). In order to obtain a certificate of registration, the owner of a dangerous wild animal must provide a variety of documents, including but not limited to a color photograph of each animal being registered, a photograph of the primary enclosure in which the animal is kept, a statement from a licensed veterinarian verifying the animal was inspected and its condition meets or exceeds the prescribed standards, and proof of liability insurance. Id. § 822.104.
The new laws also set forth care and treatment requirements. Generally, the law requires that the owner comply with all applicable standards of the Animal Welfare Act relating to veterinary care, animal health and husbandry, and animal facilities. 7 U.S.C. § 2131. Additionally, the owner is required to keep a written log for each animal in his possession, identifying the details of animal’s treatment and veterinarian information. Tex. Health & Safety Code Ann. § 822.112. The Texas Board of Health is charged with establishing cage requirements and standards for the keeping and confinement of a dangerous wild animal to ensure that the animal is kept in a way that provides a safe and humane environment for the animal, and also protects the public’s health and safety. Id. § 822.111. Deviations from the prescribed standards can only be made if such changes do not compromise the public’s safety or adversely affect the animal’s overall welfare.
Whether this new law becomes an effective way to ensure humane treatment of wild animals remains to be seen. The scope of this statute is not far-reaching. The new law does not apply to entities such as research facilities, zoos, circuses, television or motion picture companies, college mascots, or primates used in biomedical research. Additionally, some counties have not yet implemented nor administered the certification program required by these new laws despite the fact that such programs were statutorily required to be in effect by December 1, 2001. Recently, the Texas Attorney General issued an opinion that clarifies the duties each county has in establishing registration programs for dangerous wild animals. 2002 Tex. Att’y Gen. Opinion JC-0552. Specifically, each county in Texas has two options: it can choose to entirely prohibit the ownership of dangerous wild animals, or it must establish a registration program to ensure that these animals are contained and cared for in a proper manner. Whether county authorities will comply with this legislative and judicial mandate is yet to be seen.