Full Case Name:  The State of Texas v. Patrick Scott Kingsbury

This is a cruelty to animals case. Pursuant to section 42.09 of the Texas Penal Code, appellant, the State of Texas, filed a criminal action against appellees, Patrick Scott Kingsbury and Inocente Morales Dominguez. See Tex. Pen. Code Ann . § 42.09 (Vernon 2003). The State alleged appellees tortured four dogs by leaving them without food and water, which led to their deaths. The trial court found it lacked jurisdiction because the indictment alleged only a misdemeanor. See Tex. Code Crim. Proc. Ann . art. 4.05 (Vernon 1977).

 Article 4.05 states that district courts have original jurisdiction in criminal cases ofthe grade of felony, of all misdemeanors involving official misconduct, and of misdemeanorcases transferred to the district court under article 4.17. Tex. Code Crim. Proc. Ann. art.4.05 (Vernon 1977).

By one issue, the State contends the district court committed reversible error in granting appellees’ motion to dismiss for lack of jurisdiction. We affirm.

I. BACKGROUND

          Kingsbury purchased a number of dogs for the purpose of breeding and selling. He hired Dominguez to care for the dogs. Some time later, after an anonymous tip, Cameron County Animal Control workers located approximately seventy-six of the dogs purchased by Kingsbury; all were emaciated and dehydrated. The workers also found the remains of several other dogs that had died of starvation. Both Kingsbury and Dominguez were arrested and indicted for cruelty to animals. Tex. Pen. Code Ann . § 42.09 (Vernon 2003). The indictment alleged that appellees intentionally or knowingly tortured four dogs by “leaving them without food and water to such an extent as to cause the death of said dogs.” Appellees filed a motion to quash the indictment and a motion to dismiss for lack of jurisdiction. The basis of appellees’ motions was that the indictment alleged felony torture but used, as the defining element, language from the misdemeanor offense of failing to provide necessary food, care, or shelter. The district court agreed and held that since the language in the indictment closely tracked the language of the misdemeanor offense, the indictment alleged a misdemeanor under the guise of a felony. Thus, the district court concluded it lacked jurisdiction.

II. STANDARD OF REVIEW

          This is an issue of first impression in Texas that presents a question of statutory interpretation. Matters of statutory construction are questions of law for the courts to decide. Johnson v. City of Fort Worth , 774 S.W.2d 653, 656 (Tex. 1989). As such, they are subject to de novo review. State Dept. of Hwys. & Pub. Transp. v. Payne , 838 S.W.2d 235, 238-39 (Tex. 1992). “In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent.” Nat’l Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). Our starting point is to look to the plain and common meaning of the statute’s words, viewing its terms in context and giving them full effect. Liberty Mut. Ins. Co. v. Garrison Contractors , Inc. , 966 S.W.2d 482, 484 (Tex. 1998). If the language is unambiguous, we will interpret the statute according to its plain meaning. State ex rel. State Dep’t of Hwys & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2000). We are mindful that “every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible.” Perkins v. State , 367 S.W.2d 140, 146 (Tex. 1963). The statute should be considered in its entirety when determining the meaning of its component parts. See Bridgestone/Firestone, Inc. v. Glyn-Jones , 878 S.W.2d 132, 133 (Tex. 1994). We should also presume the Legislature intended a “result feasible of execution” when it enacted the statute. In re Mo. Pac. R.R. Co. , 998 S.W.2d 212, 216 (Tex. 1999). Other matters that may be considered in ascertaining the Legislature’s intent include the objective of the law and the consequences of a particular construction. See Tex. Gov’t Code Ann . § 311.023 (Vernon 1998); McIntyre v. Ramirez , 109 S.W.3d 741, 745 (Tex. 2003). With these principles in mind, we turn to the statutory language to be construed.III. ANALYSIS

          The language at issue from section 42.09 of the Texas Penal Code, Cruelty to Animals, reads in relevant part:

(a)A person commits an offense if the person intentionally or knowingly:

(1)tortures an animal;

(2)fails unreasonably to provide necessary food, care, or shelter for an animal in the person’s custody;

(3)abandons unreasonably an animal in the person’s custody;

(4)transports or confines an animal in a cruel manner;

(5)kills, seriously injures, or administers poison to an animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner’s effective consent;

(6)causes one animal to fight with another;

(7)uses a live animal as a lure in dog race training or in dog coursing on a racetrack;

(8)trips a horse;

(9)injures an animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner’s effective consent; or

(10)seriously overworks an animal.

* * *

(d) An offense under Subsection (a)(2), (3), (4), (9), or (10) is a Class A misdemeanor, except that the offense is a state jail felony if the person has previously been convicted two times under this section.

* * *

(g)An offense under Subsection (a)(1), (5), (6), (7), or (8) is a state jail felony, except that the offense is a felony of the third degree if the person has previously been convicted two times under this section. . . .

Tex. Pen. Code Ann . §42.09 (Vernon 2003).

          The State contends the term “torture” includes a failure to provide necessary food and water and, therefore, the indictment properly alleges a felony under subsection (a)(1). In support of its argument, the State relies on Martinez v. State , 498 S.W.2d 938 (Tex. Crim. App. 1973) ; Johnson v. State, 465 S.W.2d 372 (Tex. Crim. App. 1971); and State v. Woodward , 69 S.E. 385 (W. Va. 1910) , cases addressing torture of humans. The State also argues that a former statutory definition of torture provides guidance. See Act of March 31, 1913, 33 ^rd Leg., R.S., ch. 88, 1913 Tex. Gen. Laws 168, 170 repealed by Act of May 16, 1989, 71 ^st Leg., R.S., ch. 678, § 13, 1989 Tex. Gen. Laws 2230, 3165 (defining torture of an animal as every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is a reasonable remedy or relief). This Court does not find either argument persuasive.

A. The Plain Meaning and Structure of the Statute

          We start with the plain and common meaning of the statutory words. Garrison Contractors , Inc. , 966 S.W.2d at 484. This Court, in construing a statute, must give effect to each sentence, clause, and word. See Perkins , 367 S.W.2d at 146. We will not give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions in the statute. See Tex. Dep’t of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002).

          When the law regarding cruelty to animals was codified in 1974, the Legislature omitted the definition of torture. See Act of May 23, 1973, 63 ^rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 885. The term remains undefined in the present statute. Tex. Pen. Code Ann . §42.09 (Vernon 2003). It is evident, however, by a reading of section 42.09, that “torture” is not meant to include failing to provide necessary food, care, or shelter. The criminal acts of torture and failing to provide necessary food, care, or shelter are assigned separate subsections, (a)(1) and (a)(2) respectively, and are followed by eight other offenses. Tex. Pen. Code Ann . § 42.09 (Vernon 2003). When we give effect to each subsection, it is obvious that subsections (a)(1) and (a)(2) each constitute an independent criminal act. A person commits animal cruelty by intentionally or knowingly torturing an animal “or” by intentionally or knowingly failing unreasonably to provide necessary food, care, or shelter. Tex. Pen. Code Ann . § 42.09(a)(1) & (2) (Vernon 2003). The plain language of the statute indicates that a person can commit one criminal act “or” the other. The two acts are not dependent on each other, nor do they bear any relation to one another. Because the two criminal acts are read separately from each other, it would be incongruous to interpret “torture” as encompassing a failure to provide necessary food, care, or shelter. While we are not attempting to define what torture is, we are establishing, under the facts of this case, what it is not. By finding that torture does not include any of the criminal acts set out in subsections (a)(2) through (a)(10), we enable the term to have a meaning which is in harmony and consistent with the other provisions of the statute. See Needham , 82 S.W.3d at 318.

          In determining the relationship between subsections (a)(1) and (a)(2), we also look at the statute as a whole. See Glyn-Jones , 878 S.W.2d at 133. Section 42.09, when read in its entirety, provides that a person may commit animal cruelty, punishable as a felony, by torturing an animal. See Tex. Pen. Code Ann . § 42.09 (a)(1) & (g) (Vernon 2003). The statute also states that a person may commit animal cruelty, punishable as a class A misdemeanor, by failing to provide necessary food, care, or shelter for an animal. See id. §42.09 ( a)(2) & (d). The lesser punishment attached to the latter criminal act further supports our conclusion that the two offenses are distinct. The language of the entire statute indicates the Legislature meant to clearly categorize those particular offenses it felt warranted an increased penalty and those that did not. In doing this, it left the crime of failing to provide necessary food, care, or shelter for an animal as a misdemeanor. See id. This criminal act is not punished as severely as torture. Therefore, we conclude that failing to provide an animal with necessary food, care, or shelter is not torture as that term is used in section 42.09(a)(1). Tex. Pen. Code Ann . § 42.09 (Vernon 2003) B. Consequences of Overbroad Interpretation

          Interpreting section 42.09 as the State urges would undermine the statute’s purpose. Allowing the felony offense of torture to include the misdemeanor offense of failing to provide necessary food, care, or shelter would have the effect of enabling the State to bring a felony charge of torture for any of the criminal acts listed under subsection 42.09(a). See Tex. Pen. Code Ann . § 42.09 (Vernon 2003). For example, unreasonably abandoning an animal could also be considered “torture,” as could seriously overworking an animal. The State would ultimately be able to circumvent the express language of subsection (d). See id. § 42.09 (d). Instead of five misdemeanor criminal acts and five felony acts, there would in effect be ten acts capable of carrying a felony punishment. This result defeats the statute’s categorization of “torture” as a more serious crime. This Court is not willing to interpret the statute in this manner.

IV. CONCLUSION

          Accordingly, we find the criminal act of failing to provide necessary food, care, or shelter for an animal does not constitute the felony offense of torture. The two criminal acts are separate and distinct from one another. Therefore, the indictment, by alleging torture by failing to provide food and water, did not sufficiently allege a felony under section 42.09(a)(1). Instead, the indictment charged appellees with a misdemeanor under section 42.09(a)(2). Tex. Pen. Code Ann . § 42.09 (Vernon 2003). We conclude the district court lacked jurisdiction. See Tex. Code Crim. Proc. Ann . art. 4.05 (Vernon 1977).

  The record does not show this case was transferred pursuant to article 4.17of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 4.17 (Vernon 1977).

We affirm the judgments of the trial court.