Dangerous Dogsand 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 822, Regulation of Animals

• Other chapters within Title 10 include Chapter 821, Cruelly Treated Animals

Chapter 822, Regulation of Animals

• Subchapter A, Attacks by Dogs that cause serious bodily injury or death. Separate subchapter from “dangerous dogs” subchapter.

• Subchapter D, Dangerous Dogs, Sections 822.041 – 822.045.

• Other subchapters.

Notes

• Civil jurisdiction. Timmons v. Pecorino

• Code Construction Act, Government Code Chapter 311

• Construction of laws, Government Code, Chapter 312. Civil statutes “shall be liberally construed to achieve their purpose and to promote justice.” Section 312.006.

• HSC 822.041(5). “Owner” includes anyone with custody of dog.

“Dangerous Dogs” procedural outcomes

• Regulation of Dangerous Dogs

• Insurance, Registration, Secure Enclosure, Tag, etc

• Potential to be held responsible for crimes related to owning/having custody over a dangerous dog

• The dog can be put down in certain circumstances, subsequent to due process

“Dangerous Dogs” defined

• "Dangerous dog" means a dog that:

• (A) 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

• (B) 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.

• HSC section 822.041(2)

822.041(2)

Local Laws

• Adoption of 822.0422. Streamlines determination of dangerous dogs and allows seizure earlier in the process.

• Additional restrictions

• Can’t specify regulations per breed of dog

• Set fees for seizure, impoundment, acceptance, destruction

Determination of Dangerous Dogs

• Owner knows of dangerous dog attack, OR

• Animal control authority sends written notice to the owner/custodian, • Prerequisites: yes

• Seizure of animal is not authorized.

• Determination is final unless appealed

• 822.0422, if adopted. Any person files an application with the Court• Prerequisities: no

• Seizure of animal is authorized (if there is probable cause)

Compliance

• Insurance

• Registration

• Fees

• Secure Enclosure (“fence”), sign

• Local add-on regulations (muzzle)

• Any person can report noncompliance with dangerous dog regulations to a court.

Problems and Scenarios

• A court has received an appeal from a decision by animal control that a dog is dangerous.

• A court has received an application (or “complaint”) from a person that a dog should be considered dangerous.

• A court has received a notice/application from a person that a dangerous dog is not being kept behind a fence.

What is important in regulating dangerous dogs?• Protecting health, safety, and welfare of human beings

• Protecting property rights in dogs

• Providing respect and dignity for dogs

• Due Process

Wrapping up

• Unresolved legal question. Is there a right to a jury trial for the hearing?

• Questions and comments.

• References.

• Three articles. Katie Tefft, The Recorder. January 2011, May 2011, and August 2012.

• Flowcharts. TMCEC web site, under Resources.

• Thank you!

Start

Dog Owner/Custodian and the Texas “Dangerous Dog” Law

Dog “owner” defined. HSC

822.041(5). Includes those with custody

of a dog.

Check local City ordinances and County orders for additional

restrictions and requirements that may apply beyond State law.

Authorized by Texas Health and Safety Code section 822.047.

State law

Does owner/custodianknow of a

“dangerous dog” attack? HSC 822.041(2)? Duties of a Dangerous Dog owner/custodian

apply. HSC 822.042(g)(1). There isno appeal explicitly granted by Texas

Dangerous Dog statutes.

Yes

Has the Animal Control Authority

(ACA) notifiedowner/custodian in writing

that the ACA has determined the dog to be dangerous?

HSC 822.042(g)(3),822.0421(a).

No

Has the owner received notice from

a court that the dog wasallegedly involved in a

dangerousdog incident?

HSC 822.0422(b)

No

The dangerous dog law does not apply to the

dog. End.No

Duties of owner/custodian. Not later than the 30th day after the person learns he/she is the owner/custodian of a dangerous dog he/she must:· Restrain dog at all times on a leash or in a “secure enclosure.” HSC

822.042(a)(2).· Obtain liability insurance. HSC 822.042(a)(3).· Register the dangerous dog with the ACA, providing proof of insurance, proof

of rabies vaccination, and the secure enclosure. HSC 822.042(a)(1), 822.043.· Register the dog and pay the annual registration fee of $50. HSC 822.043.· Comply with municipal or county regulations. HSC 822.042(a)(4).· Place the dangerous dog registration tag on the dog’s collar. HSC 822.043(b).· Notify animal control of any sale or move of the dog and pay $25 fee. HSC

822.043(c).· Notify animal control authority of any attack the dog makes on people. HSC

822.043(d).· Deliver the dog to the animal control authority if not in compliance. HSC

822.042(b).

A “secure enclosure” under HSC 822.041(4) 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 (the sign requirement),· Meets any requirements for enclosures set by ACA.

Dangerous dog owner/custodian potential criminal liability. · Failure to comply with dangerous dog regulations.

Class C misdemeanor. HSC 822.045.· Attack by a dangerous dog. Class C misdemeanor.

HSC 822.044.· Attack by a dangerous dog that causes serious

bodily injury or death. Felony. HSC. 822.005.· These are status offenses applying only to

dangerous dog owners/custodians.

Has the owner complied with all of the duties of a dangerous dog owner/

custodian?

Owner/custodian has 15 days to appeal

determination that the dog is a dangerous dog.

HSC 822.0421(b).

Yes

Dangerous dog regulatory compliance. End.

Yes

Go to Compliance flowchart.

Go to Court determi-

nation whether a

dog is a dangerous

dog flowchart

Appeals

Allegedly No

Yes

Last modified: October 15, 2015

HSC 822.041(2): “Dangerous dog” means a dog that:(A) 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

(B) 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.

When the Court has determined that the

dog is dangerous, but that the dog will not be destroyed, and there is no further appeal, the

owner pays costs as set by the

Court and receives the dog from impound.

HSC 822.0422/Implied.

The dog is a dangerous dog.

Compliance with Dangerous Dog Regulations

Start. There is a dog that has been determined to be a

dangerous dog.

Any person may file an application with a justice

court, county court, or municipal court that a

dangerous dog is not in compliance with dangerous

dog regulations. HSC 822.042(c)

The Court sets a time for a hearing to determine

whether the owner/custodian of a dangerous

dog has complied with Health and Safety Code

section 822.042. HSC 822.0423.

Has the dog been delivered to the animal control

authority?

Yes

The hearing must be held not later than the 10th day after

the dog was delivered.HSC 822.0423(a)

The Court gives written notice of the

time and place of the hearing to the

owner/custodian of the dog, and to the person who made the complaint. HSC

822.0423(b)

Any person, including the county or city attorney may

present evidence. HSC 822.0423(c)

No

The Court holds the hearing. The questions to be decided by the Court at the hearing are:· Whether the owner/custodian

has complied with the dangerous dog regulations. HSC 822.042(e).

· The costs of the impoundment. HSC 822.0423(c-1). These may be set by ordinance/order. HSC 822.042(d).

· What the bond shall be in the event of an appeal. HSC 822.0423(c-1).

The Court orders that the dog be humanely destroyed. End.

Has the hearing been held

and the owner/custodian of the dog not been located

within 15 days afterdog was

impounded?

The Court may order that the dog be destroyed. The Court may

order that the dog not be destroyed. HSC 822.042(f).

Destroy

Yes

Other order by discretion of the Court. For example, could the dangerous dog be put up

for adoption? End.

Don’t destroy

Outcome of Compliance

hearing.

Owner/custodian has complied with HSC 822.042(a). The owner pays the

costs. HSC 822.042(d). Dog is returned to owner/custodian before the 11th day after impoundment/delivery/seizure. The dog is still a dangerous dog and all dangerous dog regulations must continue to be followed. Texas law does not clearly give standing to

anyone to appeal this decision.

Compliance

Owner has not complied with HSC

822.042(a). Failed to comply

An appeal may be perfected not later

than the 10th calendar day after the day the Court issued its decision.

Is an appeal made to a higher

court?

Destruction order must not be made during pendency of an appeal, or before

the 11th day on which the dog was seized or delivered.

HSC 822.042(e.)

No

Is decision ultimately affirmed by

appellate court?

Yes

Yes

No, reversed.

NoThe Court shall issue a warrant and order

that the animal control authority seize the animal. HSC 822.042(c)

No

DoesCourt findprobable

cause to seize?Fourth Amendment, US

Constitution. Texas Constitution Article I,

Section 9

Yes

Court does not set hearing or order

that dog be destroyed. End.

No

Last modified: October 15, 2015

Start

County or Municipality Regulation of Dangerous Dogs

Is this a county government where the county has a population of 2.8 million or more?

All of Health and Safety Code, Title 10,

Subchapter D applies,including section

822.0422.

Yes

No

In addition toSubchapter D, state law as

applicable, a county or municipality may place

additional requirements or restrictions on dangerous

dogs. 822.047.

Has theCommissioners

Court entered an order, or the governing body of the municipality

adopted an ordinance adopting Health and Safety Code section

822.0422 of Title 10, Subchapter D?

Yes

Health and Safety Code, Title 10, Subchapter D, Dangerous Dogs applies, but

Section 822.0422 does not apply.

No

Additional restrictions may not be specific to a breed of dog or more than one

breed of dog.822.047(1).

Additional restrictions may not be less stringent than

Subchapter D.822.047(2).

End

Last modified October 14, 2015

County or municipality may set fees for seizure,

acceptance, impoundment, or destruction of a

dangerous dog, or an allegedly dangerous dog.

822.042(d).

Court determination whether a dog is a

dangerous dog

Start.

Does all of Health and Safety Code, Title 10, Subchapter D apply in

this jurisdiction,including section

822.0422? Yes

Has the dog been delivered to the

ACA?

Consult the “County or

Municipality Regulation of

Dangerous Dogs”

flowchart

A person reports a dangerous dog incident. HSC 822.0422(b).

The Court notices the owner/

custodian. HSC 822.0422/implied

Owner/custodian of the dog shall deliver

the dog to the animal control authority (ACA)

within 5 days receiving notice. HSC 822.0422(b)

Does the Court find probable cause to seize the dog? Fourth Amendment, US Constitution.

Texas Constitution Article I, Section 9

The Court gives written notice of the

time and place of hearing to the

owner/custodian of the dog, or the

person from whom the dog was seized, and the person who

reported the dangerous dog

incident (who made the complaint). HSC

822.043(b).The Court holds the hearing. The questions to be decided are:· The costs of the impoundment.

HSC 822.0423(c-1). These may be set by ordinance/order. HSC 822.042(d).

· What the bond shall be in the event of an appeal. HSC 822.0423(c-1).

· If 0422 was adopted, the Court may order continued impoundment of dog until rendering its decision. HSC 822.0422(e)

Last modified: October 15, 2015

Court does not set hearing or order

that dog be destroyed. End.

No The Court shall issue a warrant and order

that the animal control authority

seize the dog. HSC 822.042(c)

Yes

The animal control authority (ACA) provides for the

impoundment of the dog in secure and

humane conditions. HSC 822.0422(b).Yes

The ACA seizes the dog

Any person, including the county or city attorney may

present evidence. HSC 822.0423(c)

An appeal may be perfected not later

than the 10th calendar day after the day the Court issued its decision.

Appellate decision

Outcome of hearing

The dog is returned to the owner/custodian, if applicable. Owner

pays fees?

Has an ACA determined that it is a dangerous dog, and

the owner/custodian is appeals to the court?

No

Court does not have jurisdiction. End.

No

Appeal must be made within 15 days

of the notice from the ACA. The ACA

must have investigated,

provided a written determination, and, if applicable, provide sworn statements of

any witness. HSC 822.0421

Yes

Not dangerous

Dangerous, will be appealed

After owner complies with all dangerous dog regulations, and pays fees, dog is returned. If it

was an 0421 referral, the case is over. Compliance required. End.

Not dangerous

Dangerous

No

Dangerous, not appealed