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VERNON'S TEXAS STATUTES
AND
CODES ANNOTATED
PENAL CODE
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY
CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES
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(a) A person commits an offense if he intentionally or knowingly: (1) tortures or seriously overworks an animal; (b) It is a defense to prosecution under this section that the actor was engaged in bona fide experimentation for scientific research. (c) For purposes of this section: (1) "Animal" means a domesticated living creature and wild
living creature previously captured. "Animal" does not include
an uncaptured wild creature or a wild creature whose capture was accomplished
by conduct at issue under this section. (d) An offense under this section 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. (e) It is a defense to prosecution under Subsection (a)(5) that the animal was discovered on the person's property in the act of or immediately after injuring or killing the person's goats, sheep, cattle, horses, swine, or poultry and that the person killed or injured the animal at the time of this discovery. (f) It is a defense to prosecution under Subsection (a)(8) that the actor tripped the horse for the purpose of identifying the ownership of the horse or giving veterinary care to the horse. CREDIT(S) 1994 Main Volume 1996 INTERIM UPDATE HISTORICAL NOTES 1997 INTERIM UPDATE 1996 INTERIM UPDATE 1995 Legislation 1994 Main Volume The 1975 amendment, in subd. (a)(5), inserted ", other than cattle,
horses, sheep, swine, or goats,". The 1985 amendment added subd. (a)(7). The 1991 amendment added subsec. (e). The 1993 amendment made only nonsubstantive changes. Rev.P.C.1879, art. 344. Prior Laws: REFERENCES 1994 Main Volume LIBRARY REFERENCES 1994 Main Volume NOTES OF DECISIONS 1. Validity Subdivision (a)(2) of this section, making it a criminal offense to intentionally or knowingly fail "unreasonably to provide necessary food, care, or shelter for an animal in his custody", sufficiently informs an accused of the nature and cause of the accusation against him and is not unconstitutionally vague and indefinite. McCall v. State (Cr.App. 1976) 540 S.W.2d 717. This section prohibiting causing one animal to fight with another is neither unconstitutionally vague nor violative of due process. Mejia v. State (App. 14 Dist. 1984) 681 S.W.2d 88, review refused. Subsection (a)(4) of this section, which provided that person committed offense if he intentionally or knowingly transported or confined animal in cruel manner, was not unconstitutionally vague. Lopez v. State (App. 4 Dist. 1986) 720 S.W.2d 201, review refused. 2. In general Ownership of the animal was immaterial. Woodward v. State (Cr.App. 1894) 33 Tex.Crim. 554, 28 S.W. 204. Words "unreasonably" and "necessary" in subd. (a)(2) of this section are to be understood according to their common meanings in the context in which they are employed. Cross v. State (App. 5 Dist. 1982) 646 S.W.2d 514, review refused. An exhibition wrestling match between a man and a bear was legal, provided it did not violate the cruelty to animals statute, and such a match was outside the jurisdiction and authority conferred on the commissioner of the bureau of labor statistics under the Texas Boxing and Wrestling Law. Op.Atty.Gen.1939, No. 0-1541. 3. Intent or knowledge One observing animal reaching over, or pushing at, his insufficient fence, to get to corn growing near fence, had no right to shoot animal with intent to scare it away. Barnett v. State (Cr.App. 1931) 117 Tex.Crim. 358, 35 S.W.2d 441. Unjustified shooting of mule constituted offense of cruelty to animals, notwithstanding accused had no specific intent to torture. Barnett v. State (Cr.App. 1931) 117 Tex.Crim. 358, 35 S.W.2d 441. When charged offense is cruelty to animals, knowledge and "intent" may be inferred from circumstances surrounding offense. Pine v. State (App. 14 Dist. 1994) 889 S.W.2d 625, rehearing overruled, review refused, certiorari denied 116 S.Ct. 300. Evidence supported conviction of defendant for cruelty to animals, through failure to provide adequate food, even though defendant farmer claimed that he was not involved in day-to-day feeding of animals but had delegated responsibility and was unaware that animals were suffering from malnutrition. Pine v. State (App. 14 Dist. 1994) 889 S.W.2d 625, rehearing overruled, review refused, certiorari denied 116 S.Ct. 300. Evidence supported findings that dogs shot and killed by defendant were domesticated, and that defendant knew dogs were domesticated animals, for purposes of cruelty to animals charge; owner of dogs testified that dogs had demeanor of pets and lived nearby, dogs were both wearing collars, and defendant admitted having seen one dog previously. Tilbury v. State (App. 2 Dist. 1994) 890 S.W.2d 219. Instruction on cruelty to animals charge required state to prove issue of knowledge of domestication and, thus, any error concerning which party had to prove domestication issue was not so egregious as to deprive defendant of fair and impartial trial. Tilbury v. State (App. 2 Dist. 1994) 890 S.W.2d 219. 4. Torture of animals Provisions of this section which make it an offense to intentionally or knowingly torture an animal and which define "torture of an animal," as including acts or omissions whereby unnecessary or unjustifiable suffering is caused appear to contemplate that in some circumstances infliction of pain and suffering on an animal may be necessary and justifiable and that, in such circumstances, infliction of pain would not be "torture of an animal" within contemplation of this section. McGinnis v. State (Cr.App. 1976) 541 S.W.2d 431. Although each case had to be determined upon its own facts, where the tail feathers of pigeons were plucked to cause their flight to be erratic, they were thrown in the air, shot and left to die, the facts were sufficient to support a conviction for torturing, tormenting and/or needlessly mutilating an animal in violation of Vernon's Ann.P.C. (1925) art. 1374 (now, this section). Op.Atty.Gen.1973, No. H-56. 5. Necessary food Where defendant kept dogs in an open field clearly in view of neighbors and passersby, and where it was apparent that the emaciated animals were not being properly cared for in possible violation of the law, it was not unreasonable for humane society members to go onto defendant's property and seize the dogs. McCall v. State (Cr.App. 1976) 540 S.W.2d 717. Phrase "necessary food" in subd. (a)(2) of this section means food sufficient in both quantity and quality to sustain the animal in question. Cross v. State (App. 5 Dist. 1982) 646 S.W.2d 514, review refused. 6. Cockfighting This section prohibits cockfighting or causing game roosters to fight. Mejia v. State (App. 14 Dist. 1984) 681 S.W.2d 88, review refused. 7. Enclosures If the animal, when killed by defendant, was within his enclosure and there was an insufficient fence around it, the killing was an entirely distinct offense from that defined in Rev.P.C. 1879, art. 680 (now, this section) being that defined by Rev.P.C. 1879 art. 685, 686 (see, now, Secs. 28.03, 28.04) which was not an offense included within that described in art. 680. Payne v. State (1884) 17 Tex.Crim. 40; McRay v. State (1885) 18 Tex.Crim. 331. On prosecution hereunder for wantonly wounding a hog, which the evidence tended to show was shot by defendant while trespassing on his crop, it was competent for defendant to show that his fence was a lawful one, which, by the stock law prevailing in his locality, was not required to turn hogs. Brewer v. State (App. 1890) 13 S.W. 1004. In a prosecution for wilfully killing swine, defendant could show that the hogs were in his field, destroying his corn, at the time they were killed; and that his field was surrounded by a good fence, although the hog law was in force in the county. McMahan v. State (App. 1891) 16 S.W. 171. 8. Defenses The killing of an animal which was in the habit of trespassing upon one's crop, during an act of trespass, to prevent a destruction of the crop, and not from wantonness, did not constitute this offense. But it seemed the act would in such case not be justified unless the crop was properly protected by a lawful fence. Jones v. State (1877) 3 Tex.Crim. 228. Branch v. State, 41 Tex. 622; Thomas v. State (1883) 14 Tex.Crim. 200; Lane v. State (1884) 16 Tex.Crim. 172. In a prosecution for wilfully and wantonly wounding a hog, it was competent for the defendant to prove that the hog was depredating on his premises, and that after such wounding he sent the owner its value. Lott v. State (1880) 9 Tex.Crim. 206. Where, in a prosecution for maliciously shooting a dog, defendant pleaded an alibi, he could not set up either actual or apparent danger from the dog, or his vicious habits, in justification. Atchison v. State (Cr.App. 1903) 44 Tex.Crim. 551, 72 S.W. 998. Refusal to submit affirmative defense to charge of torturing mule by shooting it, to effect that defendant shot animal to scare it away from defendant's crop, was proper. Barnett v. State (Cr.App. 1931) 117 Tex.Crim. 358, 35 S.W.2d 441. 9. Related offenses Where the evidence showed that the animal was killed, wounded, etc., while inside of cleared and cultivated land surrounded by an insufficient fence it showed a different offense than that denounced by Rev.P.C.1879, art. 680 (now this section); it showed the offense denounced by Rev.P.C.1879 arts. 685, 686 (see, now, Secs. 28.03, 28.04), and in such case a conviction could not be had under Rev.P.C.1879, art. 680 (now this section). Payne v. State (1884) 17 Tex.Crim. 40; McRay v. State (1885) 18 Tex.Crim. 331. Defendant who wounded another's hog and pursued without "taking" it should have been indicted under Rev.P.C.1879, art. 680 or Rev.P.C.1879, art. 679 rather than for theft. Minter v. State (App. 1888) 9 S.W. 561. A person could be convicted, under Vernon's Ann.P.C. (1925) art. 1374 (now, this section), for wilfully killing hogs on his own land although the hog law was in force, but a prosecution under Vernon's Ann.P.C. (1925) art. 1372 (see, now, Secs. 28.03, 28.04) could not be maintained. Gerdes v. State (Cr.App. 1896) 34 S.W. 268. 10. Indictment, information or complaint Where the animal was killed the indictment may be for theft and distinguished from offense under Rev.P.C.1879 art. 680 (now, this section). Coombes v. State (1884) 17 Tex.Crim. 265. Information which alleged that defendant "did then and there unlawfully, intentionally, and knowingly torture an animal, namely, a dog" was insufficient to give defendant adequate notice and enable him to adequately prepare his defense, since the statutory language under this section, though tracked by the information, is not completely descriptive of the offense. Haecker v. State (Cr.App. 1978) 571 S.W.2d 920. 11. Presumptions and burden of proof In a trial for wantonly killing a horse, where it was in proof that the animal was a bad fence breaker, and evidence tended to show that the killing was prompted by a desire on defendant's part to prevent the destruction of his crops, and not by a spirit of wantonness, to countervail the presumption of innocence and warrant a conviction, it was incumbent on the state to prove that defendant's crop was not properly protected against live stock. Davis v. State (1882) 12 Tex.Crim. 11. In prosecution under Vernon's Ann.P.C. (1925) art. 1373-a (see, now Secs. 28.03, 28.04, 42.11) proscribing the wilful killing of certain domesticated animals with intent to injure owner thereof, the intent to injure could be presumed from the act of killing. Nichols v. State (Cr.App. 1964) 386 S.W.2d 795. Defendant's conviction for cruelty to animals did not violate double jeopardy despite her previous plea of guilty to running kennel without license, offense of cruelty to animals did not require proof of keeping dogs over certain age at her home without license as was required for violation of kennel ordinance. Mills v. State (App. 1 Dist. 1991) 802 S.W.2d 400, review refused, denial of habeas corpus affirmed, habeas corpus denied in part, granted in part 848 S.W.2d 878. 12. Admissibility of evidence In a prosecution for wantonly killing a dog, what the dog had done before the time of the killing could not be shown in evidence as a defense, so as to afford a legal excuse to the defendant to kill the dog at the time he did. McDaniel v. State (1879) 5 Tex.Crim. 475. In prosecution for intentionally and knowingly failing unreasonably to provide necessary food and care for a Great Dane dog, the trial court properly allowed state's expert witness, a veterinarian, to testimony, over defendant's objection that the testimony invaded the jury's province, that the Great Dane had not been cared for properly. McCall v. State (Cr.App. 1976) 540 S.W.2d 717. Testimony of defendants' witness, a sociology professor who had done specific research in the area of cockfighting, pertaining to the history of cockfighting and that cockfighting is not generally thought of as an illegal activity, was irrelevant in hearing on writ of habeas corpus for preconviction relief regarding the constitutionality of the statute prohibiting causing one animal to fight with another under which defendants were charged with causing game roosters to fight. Mejia v. State (App. 14 Dist. 1984) 681 S.W.2d 88, review refused. Evidence is admissible if it serves to make elemental fact more or less probable. Pine v. State (App. 14 Dist. 1994) 889 S.W.2d 625, rehearing overruled, review refused, certiorari denied 116 S.Ct. 300. Evidence that defendant charged with malnourishing colt had other animals on his farm that were also malnourished was admissible over objection that it was bad acts evidence, as it made elemental fact more likely than not; presence of other malnourished animals would be notice to defendant that colt was malnourished. Pine v. State (App. 14 Dist. 1994) 889 S.W.2d 625, rehearing overruled, review refused, certiorari denied 116 S.Ct. 300. 13. Sufficiency of evidence Evidence was sufficient to sustain conviction for cruelty to animal where defendant left dog in automobile with tinted glass roof on hot, sunny, dry day, despite there being no direct evidence indicating what would constitute adequate ventilation for dog under circumstances. Lopez v. State (App. 4 Dist. 1986) 720 S.W.2d 201, review refused. Evidence that no food or water was available to animals recovered from defendant's home and testimony by veterinarian that house did not meet standards of necessary care for animals and that some animals were malnourished supported conviction for cruelty to animals. Mills v. State (App. 1 Dist. 1991) 802 S.W.2d 400, review refused, denial of habeas corpus affirmed, habeas corpus denied in part, granted in part 848 S.W.2d 878. Cat hair in microwave oven and burns on cats' paws supported conclusion in animal cruelty prosecution that defendant tortured them in microwave, even though nothing showed that hair in microwave came from the cats or that microwaving caused the burns; theory that large amount of fur was left in microwave by some other cat or by some process other than torture was not reasonable or consistent with the evidence. Celinski v. State (App. 1 Dist. 1995) 911 S.W.2d 177. Evidence in animal cruelty prosecution supported conclusion that defendant poisoned cats with acetaminophen; laboratory results confirmed that cats died of acetaminophen poisoning, veterinarian was unable to reverse results of poisoning with antidote, estimated ingestion of five to six tablets apiece, and had never heard of cat voluntarily ingesting acetaminophen, and defendant was only person present in apartment with cats on day of ingestion and testified that there were no pills lying around on day cats became sick. Celinski v. State (App. 1 Dist. 1995) 911 S.W.2d 177. 14. Instructions The charge should not make the guilt or innocence of the defendant depend upon whether or not he used greater force than was necessary in protecting his property where such issue was not raised by the evidence; in a proper case the charge should instruct that if it reasonably appeared to the defendant that his property was in danger of serious injury, he would be justified in killing the animal threatening such injury. Farmer v. State (App. 1886) 2 S.W. 767. Where the evidence raised the issue whether the hog was wounded in defendant's insufficiently fenced inclosure, the jury should have been instructed that, if they find this to be the fact, a conviction could not be had under Vernon's Ann.P.C. (1925) art. 1374 (now, this section), the punishment for such offense being provided by Vernon's Ann.P.C. (1925) art. 1372 (see, now, Secs. 28.03, 28.04). Brewer v. State (App. 1890) 13 S.W. 1004. Where accused was charged under Rev.P.C. 1911, art. 1231 (now, this section) with having wilfully and wantonly killed a domestic animal, and the evidence was not conclusive that the killing was wilful or wanton, and the jury might have found that the act was within Rev.P.C. 1911, arts. 1246, 1247, (see, now, Secs. 28.03, 28.04) which imposed a penalty upon one who, being in charge of cultivated land surrounded by an insufficient fence, shall with firearms kill any animal within the inclosure, it was error for the court to refuse a requested charge that if the facts brought the case within the provisions of the latter article the jury should acquit. Hobbs v. State (Cr.App. 1914) 75 Tex.Crim. 337, 170 S.W. 1100. In prosecution for cruelty to an animal, trial court should instruct jury on the definition of torture of an animal and thereafter permit jury to determine whether acts allegedly committed, in the circumstances of the case, showed the torture of an animal. McGinnis v. State (Cr.App. 1976) 541 S.W.2d 431. Trial court could instruct jury considering whether defendant had violated statute prohibiting cruelty to animals, that it was required to find beyond reasonable doubt that defendant "intentionally or knowingly" had unreasonably deprived colt of food, care or shelter, even though information charged "intentionally and knowingly" failed to provide "food, care and shelter." Pine v. State (App. 14 Dist. 1994) 889 S.W.2d 625, rehearing overruled, review refused, certiorari denied 116 S.Ct. 300. 15. Injunction Promoter of a cock fight was not entitled to injunction restraining police officers from interfering with fight on ground that officers were acting under mistaken construction of Vernon's Ann.P.C. (1925) art. 613 (now, this section) which prohibited cock fights, and that proposed fight would not violate statute, where promoter did not attack validity of statute nor allege or prove facts establishing that he had a vested right to promote the fight, and there was not sufficient evidence in record as to expenses incurred by promoter in connection with proposed fight to establish that officers had interfered with a valuable property right. Angelo v. Brown (Civ.App. 1940) 139 S.W.2d 197. 16. Sentence and punishment Jury could assess fine of up to $2,000 on each of remaining nine counts without violating statutory concurrent sentence requirement in joint prosecution for ten counts of cruelty to animals after defendant was sentenced to and served one year of probation on first count. Mills v. State (App. 1 Dist. 1993) 848 S.W.2d 878. Jury could not assess any punishment of imprisonment or probated imprisonment at new punishment hearing ordered on remand respecting remaining nine counts in joint prosecution for ten counts of cruelty to animals after defendant had been sentenced to and had served one year of probation for first count; statute required that sentences regarding offenses arising out of same criminal episode prosecuted in single action run concurrently, State failed to ask for punishment hearing on remaining nine counts in time for such punishments to run concurrently, and one year was maximum period in jail on the ten counts because they were tried together. Mills v. State (App. 1 Dist. 1993) 848 S.W.2d 878. Document filed by defendant on day of trial, informing court of defendant's intention to present motion to have jury recommend probation in event that if defendant was found guilty of cruelty to animal, did not satisfy Code of Criminal Procedure requirements for having jury assess punishment; defendant expressed only conditional intent to request probation in future, and code required that defendant elect prior to trial to have jury assess punishment. Pine v. State (App. 14 Dist. 1994) 889 S.W.2d 625, rehearing overruled, review refused, certiorari denied 116 S.Ct. 300. VERNON'S TEXAS STATUTES AND CODES ANNOTATED Sec. 42.10. Dog Fighting (a) A person commits an offense if he intentionally or knowingly: (1) causes a dog to fight with another dog; (b) In this section, "dog fighting" means any situation in which one dog attacks or fights with another dog. (c) A conviction under Subdivision (2), (3), or (4) of Subsection (a) may be had upon the uncorroborated testimony of a party to the offense. (d) It is a defense to prosecution under Subdivision (1) or (2) of Subsection (a) that the actor caused a dog to fight with another dog to protect livestock, other property, or a person from the other dog, and for no other purpose. (e) An offense under Subdivision (1) or (5) of Subsection (a) is a Class A misdemeanor. An offense under Subdivision (2), (3), or (4) of Subsection (a) is a state jail felony. An offense under Subdivision (6) of Subsection (a) is a Class C misdemeanor. Legislative update (SB 143: effective September 1, 1997) inserted by the Texas Department of Health, Zoonosis Control Division: 1997 Interim Update Texas Department of Health * Zoonosis Control
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