The Good, The Good & The Ugly: Two Out of Three We Can Support: SB 1850 (Good), HB 2679 (Good) & HB 963 (Ugly)
Why Texas Animal Owners Need SB 1850 (Cruelty Seizure Appeals) and HB 2679 (Dangerous Dog Appeals)
Background (SB 1850)
Two years ago, HB 1046 was enacted into law which gave owners the right to an appeal if their animals were seized based on allegations of cruelty. Cruelty seizures are civil proceedings aimed at getting animals out of harm’s way. By contrast, criminal cruelty cases focus on the owner and assessing criminal penalties for their treatment of animals.
At first blush, cruelty seizures appear to be the life line for animals that are being cruelly treated, and while that is often true, it is not always the case. There are times when authorities and animal control officers get it wrong, or become overly zealous in their pursuit of these cases. But that is only the tip of the iceberg.
Interestingly, many humane organizations are the ones driving animal cruelty cases, not animal control or other authorities. In many venues, charitable corporations are the ones doing the investigation and pursuit of animal cruelty cases. Sometimes, they can become excessively eager to dispossess owners of their animals.
Of note, it is the same corporations that build a case against an owner who stand to profit by being the recipients of the animals that were seized. This creates an inherent conflict because the humane organizations that are vying for the animals are the same ones who are acting in a supposed expert capacity to build the cruelty case against the owners.
There can be big money in cruelty seizures. That may be a perplexing statement, but it is indeed the truth. The core purpose of humane organizations is to prevent animal cruelty. They exist on donations from the public.
When there is a large animal seizure, the humane organization involved gets the media attention and they immediately start posting photographs of the animals and the owner’s property before any legal action has been taken against the owners. They do so for the purpose of driving donations so these seizures can ironically be a significant source of income for the humane organization. They have an economic interest in cruelty seizures and they certainly do not want the animals to be returned to the owner. There is built in bias against the owner from the start. No doubt there are many valid cruelty seizures, but there are many that are questionable and downright wrong.
These cases are ripe for abuse because the owners go into these hearings within days of their animals being seized and often do not have representation. Further, the deck is stacked against them because the humane organization’s cruelty investigators and veterinarians, the government’s attorney, the peace officer who did the seizure and animal control are all present to bring forth evidence against the owner at the initial hearing which is presided over by a judge who is also a government employee.
Typically, the attorney, judge, animal control and peace officer all have the same employer, i.e. a local government. The judge sees these same people on other animal cruelty cases day in and day out so they are all very familiar with each other. To say the least, the owner is behind a huge eight ball going in and is very nervous because he (or she) is likely representing himself. Valuable property interests are at stake not to mention the reputation of the owner.
What SB 1850 Does
1. Provides an owner with the option of a trial by jury instead of a hearing at the initial phase of the process.
2. Provides that all appeals from Municipal Courts and Justice Courts are de novo and may be pursued in the county court or county court at law regardless that the Government Code provides otherwise in some cases.
3. Provides for a trial by jury at the request of the owner on appeal.
4. Provides an option for seizure in place of animals which allows the animals to be legally seized without having to actually move them.
Why SB 1850 is Needed
1. The option of a trial by jury instead of a hearing at the initial phase of the process.
This would give an owner the option to have his/her case heard by a jury from the outset. Our entire system of justice hinges on the provision that a person can be judged by a jury of his or her peers. If an owner would rather their case be decided by a jury of six people rather than by a single person, to wit, the judge, SB 1850 gives that option. Not only is this fair, it can actually hasten the process. People have a belief that they “got their day in court” if they are given an option of a jury. If a jury determines there is cruelty, then the likelihood of an appeal is diminished. If the judge finds that there is cruelty, owners are less likely to feel they got a fair shake so are more likely to further appeal.
Giving the owner an option of trial by jury is evens the playing field which is heavily and unfairly eschewed against owners. As stated previously, an owner comes to these hearings usually without a lawyer and faces a host of people who are all against him/her. That won’t change, but what will change is that a jury can decide the owner’s fate, not a judge who hears multiple cruelty cases presented by the same players again and again.
2. Provides that all appeals from Municipal Courts and Justice Courts are de novo and may be pursued in the county court or county court at law regardless that the Government Code provides otherwise in some cases.
Municipal courts are traditionally utilized for traffic tickets and other minor Class C misdemeanors. The Texas Legislature also gave them the power to hear cruelty seizure cases. However, cruelty seizures are civil, not criminal matters.
Some municipal courts are not courts of record, but some are. If the court is not of record, then an appeal from a municipal court is de novo (like a do-over). If the court is of record, then the appeal is based on the transcript of the proceedings. This is the death knell to appeals for most owners who show up without an attorney and do not know to request a record. SB 1850 would make appeals in these cases the same regardless of the court in which it is originally brought and is fair to the owners. Further, the cost of a transcript itself can be a prohibition to any appeal.
3. Provides for a trial by jury at the request of the owner on appeal.
The benefit of an appeal with a jury trial is beneficial for the same reasons it is a good option from the outset as stated above.
4. Provides an option for seizure in place of animals which allows the animals to be legally seized without having to actually move them.
Historically, in cruelty seizures, animals were seized in place which means the owner could not move or dispose of them during the proceedings. SB 1850 gives the court the option but does not mandate seizures in place.
There are two reasons this option is helpful. First, oftentimes animals are traumatized by being moved in a seizure which results in their death or worsens their condition. If animals are seized in place, they can be cared for during the pendency of the matter without moving them. Many times this is better and safer for the animals.
Second, seizure in place gives counties and cities that do not have the means or facilities to physically seize animals a way to conduct cruelty seizures that could not do otherwise. Many areas of Texas do not have humane organizations available to take animals so this option gives them greater latitude in pursuing cruelty seizures.
Why SB 1850 (The Good) is Superior to HB 963 (The Ugly).
House Bill 963 is promoted by Texas Humane Legislative Network (THLN). THLN opposed appeals in cruelty cases in 2009 and is philosophically opposed to them now. HB 963 is an effort to make appeals in cruelty seizures impossible because they are cost prohibitive. It was written by people who do not practice animal law so are not familiar with the abuses that can occur in these cases.
THLN reflects the interests of large corporate humane organizations such as the Humane Society of the United States and the Houston Humane Society (HHS president Sherry Ferguson is on the board of directors for THLN). These organizations seek to get
animals in cruelty seizures so they do not support owners having a right to appeal.
HB 963 (The Ugly) does the following:
1. Makes appeals cost prohibitive because it would set the bond at 150% of the cost to house and care for the animals seized. Appeals in civil cases do not set the bond for more than actual costs, so this is a way to make these appeals impossible due to the bond being too high.
2. Allows the humane organizations who are seeking the animals to provide evidence of the cost of caring for them during their impoundment. This is ripe for abuse since these organizations are trying to dispossess the owners of the animals so would like a bond to be a high as possible to thwart any appeals.
3. Only allows humane organizations with shelters that are established per the IRS as a 501(c)(3) corporation to be awarded the animals if cruelty is found against the owner. This is a power grab by these well funded organizations so that they are the only ones that can be recipients of the animals. In many places in Texas, there are no non-profit shelters so animals will needlessly die. Many humane organizations utilize fosters for the animals instead of having a physical shelter, and these groups could not get the animals. Also, many rescue organizations are established as unincorporated non-profits per Texas law and would not be able to take animals. Most corporate non-profit shelters are high kill facilities and do not adopt out animals of certain breeds, older animals or those with health issues, so these animals would needlessly die when other groups would readily take them.
4. More animals will needlessly die since fewer organizations will be allowed to take them.
5. Does not provide for a trial by jury from the outset nor on appeal.
6. Maintains the highly complex appellate procedure that treats owners whose cases are in municipal courts differently from owners with cases in other courts.
7. This bill is extremely complex and serves to confuse the law rather than streamline it.
SB 1850 is the Companion to the Dangerous Dog Appeal Bill (HB 2679) that has Approval of the Texas State Bar Animal Law Section: Two Good Bills to Support
SB 1850 addresses the problems mentioned regarding cruelty seizures. HB 2679 addresses similar problems regarding Dangerous Dog cases. HB 2679 is designed to provide a trial by jury at the outset of Dangerous Dog cases and for a de novo appeal with an option for a trial by jury on appeal. By doing so, HB 2679 addresses the problems that arise with cases that are heard in the municipal courts as previously described.
What HB 2679 Does:
1. Provides a right to a trial by jury from the outset instead of a hearing.
2. Provides for a de novo appeal and a right to trial by jury of an appeal.
3. Provides for de novo appeals does away with some municipal court cases being appealed on a record.
4. Ensures that all Texas animal owners have the same appellate process.
In Dangerous Dog cases, the present law provides for appeals in the manner that appeals are pursued in the particular court the matter is in. Since appeals from Municipal Courts are to criminal county courts, and these are civil cases, many dog owners would not get an appeal. Dogs have died because of this glitch in the law and this bill is an opportunity to rectify that travesty.
Supporting SB 1850 and HB 2679 is Good for Texas Animal Owners
SB 1850 (cruelty seizures) is like HB 2679 and provides for a trial by jury at the outset of cruelty seizure cases and for a de novo appeal with an option for a trial by jury on appeal.
As mentioned, HB 2679 (Dangerous Dog cases) has the approval of the State Bar of Texas Animal Law Section to clear up the disparate treatment of animal owners whose
cases end up in municipal court. It is logical to provide the same fix for cruelty seizure cases and make the process similar for both kinds of animal cases.
Supporting SB 1850 and HB 2679 would give owners the right to a jury trial from the outset and provide for a de novo appeal with the right to a jury trial. The procedure for Dangerous Dog cases and cruelty seizure cases are mirrored by these two bills and they would address serious problems owners now face. There are significant harms that can be rectified by the passage of SB 1850 and HB 2679.
As a practicing animal law attorney I am very familiar with these cases and am supportive of SB 1850 since it will rectify the problems existing in current law.
