TBJ OCTOBER 2021
The criminal consequences of abuse.
Written by Fabiola M. Casas
In July, the Houston Society for the Prevention of Cruelty to Animals, or SPCA, rescued 22 dogs and four cats from a property in Sealy. The animals were found scattered around the property—overheated, emaciated, and chained to rubble or locked in kennels with no access to food or water. According to Houston SPCA investigators, it was one of the worst cases of deplorable living conditions for animals they had ever seen.1
Similar cases have been reported around the state, with some animal owners being arrested and criminally charged.2 But what exactly do Texas criminal laws say about animal cruelty?
In Texas, animal cruelty has been prohibited since the adoption of the state’s first penal code in 1856. Article 713 of the 1856 Texas Penal Code dictated that if a person
“shall wilfully[sic] kill, maim, wound, poison, or disfigure any horse, gelding, mare, jack, jenney, colt, cattle, sheep, goat, swine, or dog, of another, with intent to injure the owner thereof, he shall be fined, not less than three times the amount of the injury done to the owner by such offence—and not exceeding ten times the amount of such injury.”3
By contrast, Article 714 prohibited a person from “wilfully[sic] and wantonly” injuring and abusing “any dumb animal” and set a maximum fine of $250—almost $8,000 in today’s money.4
By 1879, the Texas Penal Code expanded the definition of protected animals with the inclusion of “other domesticated animal[s],” but the punishment for such a crime remained the same—a maximum fine of $250.5
In 2001, House Bill 653 and Senate Bill 1724, known as “Loco’s Law”—named after a dog called Loco, whose eyes were gouged out—was passed, making animal cruelty a felony in Texas and punishable by a $10,000 fine and up to two years in jail.6
Most recently, in June 2021, Gov. Greg Abbott vetoed a bill that aimed to expand animal cruelty laws in the state, citing concerns that the proposed law was a form of “over-criminalization.”7 Senate Bill 474, known as the “Safe Outdoor Dogs Act,” would have made it a misdemeanor to leave dogs chained outside without proper food or water.8 Abbott later added the issue to the agenda for a third special legislative session, which was scheduled to begin on September 20.
In present day, Texas animal cruelty statutes vary in punishment provisions and distinguish between cruelty to livestock and cruelty to non-livestock animals.9
Section 42.09 of the Texas Penal Code addresses cruelty to “livestock animals,” which it defines in an exhaustive list including animals such as cattle, sheep, swine, horses, hinnies, and fowl, among others.10 This statute says a person commits a crime if he or she “intentionally or knowingly” does any of the following:
1) tortures a livestock animal;
2) fails unreasonably to provide necessary food, water, or care for a livestock animal in the person’s custody;
3) abandons unreasonably a livestock animal in the person’s custody;
4) transports or confines a livestock animal in a cruel and unusual manner;
5) administers poison to a livestock animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner’s effective consent;
6) causes one livestock animal to fight with another livestock animal or with an animal as defined by Section 42.092;
7) uses a live livestock animal as a lure in dog race training or in dog coursing on a racetrack;
8) trips a horse; or
9) seriously overworks a livestock animal.
Punishments for the offenses vary from Class A misdemeanors to state
jail felonies.11 It is a defense to a violation of Section
42.09 if it was done in bona fide scientific experimentation or
research12 and of Section 42.09(a)(8) if the horse was
tripped in order to identify its owner or to provide veterinary
care.13 Texas courts have also found that killing a livestock
animal in the habit of trespassing on a person’s crops, to protect those
crops, is not a criminal offense.14
Section 42.092 of the Texas Penal Code addresses cruelty to “nonlivestock animals.”15 While the statute does not include an exhaustive list of what constitutes “nonlivestock animals,” it defines “animal” as “a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured” but not including “an uncaptured wild living creature or a livestock animal.”16 According to this statute,17 a person violates this law if he or she “intentionally, knowingly, or recklessly”:
1) tortures an animal or in a cruel manner kills or causes serious bodily injury to an animal;
2) without the owner’s effective consent, kills, administers poison to, or causes serious bodily injury to an animal;
3) fails unreasonably to provide necessary food, water, care, or shelter for an animal in the person’s custody;
4) abandons unreasonably an animal in the person’s custody;
5) transports or confines an animal in a cruel manner;
6) without the owner’s effective consent, causes bodily injury to an animal;
7) causes one animal to fight with another animal, if either animal is not a dog;
8) uses a live animal as a lure in dog race training or in dog coursing on a racetrack; or
9) seriously overworks an animal.
It is a defense to prosecution under this section if the actor had a reasonable fear of bodily injury to the actor or to another person by a dangerous wild animal as defined by Section 822.101 of the Texas Health and Safety Code or if the actor was engaged in bona fide experimentation for scientific research.18 A defense to a violation of Subsection b(2) or (6) includes that the actor discovered the animal injuring or killing his livestock or damaging his crops on his property and that he injured or killed the animal “at the time of this discovery.”19
Moreover, courts have consistently ruled that it is a defense to prosecution under Section 42.092 if the animal injured or killed was currently, imminently, or recently dangerous. For example, in Chase v. State, the court held that proving that a dog is attacking, is about to attack, or has recently attacked domestic animals supports a defense to prosecution.20 However, in Bueckner v. Hamel, the court refused to extend the defense to a person who shot two domestic dogs, which he claimed had attacked in prior months, in part because it was not “recent” enough.21 In City of Garland v. White, the court found that two officers were not justified in killing a dog in the afternoon that had been reported as vicious in the morning because the danger posed by the dog was no longer imminent.22 The court also noted that the officers shot the dog without trying to contain the dog.
Punishments for the offenses under Section 42.092 include Class A misdemeanors, state jail felonies, third-degree felonies, and second-degree felonies. Additionally, if a minor violates either Section 42.092 or Section 42.09, a court shall order the child to undergo psychological counseling for a period determined by the court.23 If a person is convicted of animal cruelty under either statute, the abused animals may be seized, disposed of, or sold by authorities.24
Not all animal cruelty cases are resolved through criminal courts. Some cases of animal abuse are reported to authorities through nonprofits dedicated to animal welfare. For example, each year, the SPCA of Texas receives more than 3,000 calls reporting animal abuse or neglect.25 In turn, they may launch investigations and attempt to come to agreements with the animal owners to remedy the conditions causing concerns of abuse. If the animal owners remain uncooperative, then the SPCA may submit its findings to the proper prosecutorial authority in the jurisdiction.26
One proposed law, House Bill 4330 of the 87th legislative session, advances alternative avenues to notify authorities of animal cruelty cases. The legislation would require veterinarians and certain employees at the Texas Health and Human Services Commission and Texas Department of Family and Protective Services to report suspected animal abuse.27 Currently, under Texas law, veterinarians are protected from any civil or criminal liability if they report animal owners for suspected animal cruelty but are not mandated to report these cases.28 On March 29, 2021, HB 4330 was referred to the Criminal Jurisprudence Committee. It was still in committee at the end of the regular session.
As more animal cruelty laws are proposed and adopted in the Legislature, Texas criminal laws governing animal abuse will continue to change. As the concurrence noted in Bueckner:
“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.”29
To report any suspected animal cruelty or abuse in your area, call 214-742-7722 or visit spca.org/abuse.TBJ
FABIOLA M. CASAS
is an attorney and David Hall Fellow with Texas RioGrande Legal Aid. A native South Texan, she lives and works in the Rio Grande Valley.