HB 963 Analyzed (Cruelty Seizures
- Makes the cost of an appeal cost prohibitive for accused owners.
- Restricts recipients of animals to humane shelters that are 501(c)(3) corporations.
- Rescue organizations that do not operate a shelter cannot save animals.
- Rescue organizations that are Texas unincorporated non-profits cannot save animals.
- Will result in more animals being needlessly killed.
This bill deals with animal cruelty seizures. No one in their right mind supports animal cruelty, but similarly every allegation of animal cruelty is not necessarily true. Sometimes those responsible for pursuing animal cruelty cases can get over zealous in taking owners’ animals because they actually have an interest in getting the animals themselves. A fair appeals process ensures a system of checks and balances so that a person or a rescue group is not unfairly dispossessed of their animals.
What HB 963 Does
- Limits what rescue organizations can receive animals in cruelty cases.
- Prevents rescue groups from being the recipients of cruelly treated animals unless they are a 501(c)(3) corporation and operate a shelter.
- Makes the cost of an appeal 150% of the cost for caring for the animals which is unlike other civil appeals which is based on the cost only.
- The cost for caring for the animals can be determined by humane organizations which is an inherent conflict because they are seeking to receive the animals and as such may inflate the cost to care for the animals.
- Promotes the complex and unfair method of appeals of some cases in the municipal court being based on a transcript of the hearing rather than a de novo which is taken from justice courts and municipal courts that do not have records.
- Is a way to prevent appeals by making them cost prohibitive.
- Is promoted by the same organizations that opposed the right to an appeal and is a power grab. Humane organizations who want to get an owner’s animals support making it more difficult or impossible to get an appeal because they stand to receive the animals.
- Many locations do not have 501(c)(3) rescue organizations that operate a shelter facility so these animals will die since other rescues can’t qualify to take the animals.
- This bill will result in more needless killing of animals.
OPPOSE HB 963: Fax & Call!
Hearing set for Monday, April 11, 2011!
House Committee on Judiciary & Civil Jurisprudence
Rep. Jim Jackson (512) 463-0468 / (512) 463-1044 Fax
Rep. Tryon Lewis (512) 463-0546 / (512) 463-8067 Fax
Rep. Dwayne Bohac (512) 463-0727 / (512) 463-0681 Fax
Rep. Joaquin Castro (512) 463-0669 / (512) 463-5074 Fax
Rep. Sarah Davis (512) 463-0389 / (512) 463-1374 Fax
Rep. Will Hartnett (512) 463-0576 / (512) 463-7827 Fax
Rep. Jerry Madden (512) 463-0544 / (512) 463-9974 Fax
Rep. Richard Pena Raymond (512) 463-0558 / (512) 463-6296 Fax
Rep. Connie Scott (512) 463-0462 / (512) 463-1705 Fax
Rep. Senfronia Thompson (512) 463-0720 / (512) 463-6306 Fax
Rep. Beverly Wooley (512) 463-0696 / (512) 463-9333 Fax
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As a practicing animal law attorney, I have witnessed abuses of power that have resulted in the seizure of animals that was unfair. Both individuals and rescue organizations have been the target of unfair seizures so there needs to be a system of checks and balances to make sure this does not happen. That is what a fair appellate process ensures.
HB 963 has a chilling effect on the right to an appeal and seeks to make it impossible.
This bill is an effort to prevent appeals and is supported by large corporate humane shelters who want to get the animals. This bill is an obvious power grab by these large organizations who opposed the right to an appeal in 2009.
This is not a good bill for animal owners and rescue organizations. Animal owners (and rescue groups) can appeal if they are found to be cruel in a civil seizure case. Sometimes the authorities have gone too far in these cases and have targeted individuals and rescue organizations unfairly. Stated differently, not every allegation of cruelty is founded and sometimes the authorities do not get it right. Further, cruelty allegations have been used in some cases to unfairly take American Pit Bull Terriers, Rottweilers and other similar dogs away from their owners.
Part of our legal system is to have a method for checks and balances. In a cruelty seizure, there is an initial hearing which is entertained by a judge, not a jury. Further, most of these cases are heard in Justice Courts which do have the requirement that the judge be an attorney. Therefore, one person often not an attorney will hear these cases and make a decision on someone’s ownership rights.
These hearings usually include multiple witnesses including animal control, peace officers who do the seizures, and oftentimes humane organizations all of which testify against the owner. These cases move very quickly (hearings within ten days of the seizure) so many times the owner could not find a lawyer even if he or she could afford one. That is why appeals are important in these cases. This proposed law would curtail a person’s ability to pursue an appeal. This includes rescue organizations.
This bill is an attempt to give more power to large humane shelters (humane organizations that operate an actual shelter) and government animal control in these cases by doing two things:
- Further restricting the definition of a humane organization that can be the recipient of seized animals;
- Making the cost of an appeal impossible for animal owners thereby ensuring that these humane organizations will get the owner’s animals.
Which Organizations can Receive Animals.
This bill is an attempt to further restrict the judge in what organizations can receive animals in a civil cruelty seizure. This definition would limit the award of animals to non-profit 501(c)(3) shelters.
Current law allows the judge to place animals with a “nonprofit animal shelter, pound, or society for the protection of animals.” The new definition is an attempt to put more power in the hands of large corporate humane organizations that operate shelters.
Texas law provides for unincorporated non-profits which are not established per IRS laws so this is an attempt to prevent animals from being awarded to them by requiring that the shelter be organized under IRS laws when Texas law does not require that for non-profit status.
Further, some rescue organizations do not maintain a shelter but work with foster homes. This new definition would prevent small humane organizations from taking animals unless they operated a shelter. This is a power grab by large, well-funded corporate shelters to be the recipients of the animals. It is also the death knell for many locations that do not have actual shelters, so more animals will die particularly if they have to go to animal control and not a rescue group.
The proposed law substitutes the more limited definition of “nonprofit animal welfare organization” with the restrictive definition that the rescue must be a 501(c)(3) organized per the IRS laws. This is particularly devastating because many small cities and poorer counties do not have 501(c)(3) shelters but they do have rescue groups willing to save animals.
As with most bad animal laws, the animals are the ones who pay the ultimate price. This law will cause more animals to needlessly die. It will also prevent those who are falsely accused of animal cruelty from appealing a ruling. And, as always, the much maligned American Pit Bull Terrier is often the target of these questionable seizures.
This is an attempt to make appeals cost prohibitive. This makes the appellant pay for investigation, expert witnesses and the costs of housing and caring for the animals during the impoundment. Litigants who appeal multi-million dollar verdicts do not have to pay for investigation and expert costs as a pre-requisite to an appeal. This is an attempt to prevent an appeal without changing the statute to not allow appeals. Again, this is empowering well funded organizations such as the SPCA and Humane Societies to be able to take animals with court approval by making the appeal bond so high that no one can afford it.
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HB 963
| (e-1) After a court finds that an animal’s owner has cruelly |
| treated the animal, the court shall determine the estimated costs |
| to house and care for the impounded animal during the appeal |
| process, based on evidence provided by the municipal or county |
| animal shelter or nonprofit animal welfare organization that would |
| be caring for the animal during the pendency of the appeal. |
| (e-2) After making the determination under Subsection |
| (e-1), the court shall set the amount of bond for an appeal equal to |
| the sum of: |
| (1) the amount of the court costs ordered under |
| Subsection (e); and |
| (2) 150 percent of the estimated costs determined |
| under Subsection (e-1). |
| (e-3) Notwithstanding any other law, the amount of court |
| costs that a court may order under Subsection (e) and the amount of |
| bond that a court determines under Subsection (e-2) are excluded in |
| determining the court’s jurisdiction under Subtitle A, Title 2, |
| Government Code. |
This section mandates that the court base the amount of the appeal on “evidence provided” by animal control or the humane organizations that have the animals. In my experience with these cases, the humane organizations charge a boarding cost that is even higher than fancy boarding kennels and has a hefty profit built in to the alleged cost.
Current law provides:
“As a condition of perfecting an appeal, not later than the 10th calendar day after the date the order is issued, the owner must file a notice of appeal and an appeal bond in an amount determined by the court from which the appeal is taken to be adequate to cover the estimated expenses incurred in housing and caring for the impounded animal during the appeal process.”
Current law does not include the costs of investigation or experts as a pre-requisite to an appeal. Further, current law provides that the bond is to be in an amount to cover the expenses of caring for the animals and should not include profit. The proposed law would make the owner pay 150% of the estimated costs, again attempting to prevent any appeals.
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HB 963
| (a) An owner divested of ownership of an animal under |
| Section 821.023 may appeal the order to a county court or county |
| court at law in the county in which the justice or municipal court |
| is located. As a condition of perfecting an appeal, not later than |
| the 10th calendar day after the date the order is issued, the owner |
| must file a notice of appeal and a cash bond or surety [an appeal] |
| bond in an amount set [determined] by the court under Section |
| 821.023(e-2) [from which the appeal is taken to be adequate to cover |
| the estimated expenses incurred in housing and caring for the |
| impounded animal during the appeal process]. Not later than the |
| fifth calendar day after the date the notice of appeal and [appeal] |
| bond is filed, the court from which the appeal is taken shall |
| deliver a copy of the court’s transcript or, if the court is not a |
| court of record, a copy of the clerk’s record to the county court or |
| county court at law to which the appeal is made. If the appeal is |
| made from a court of record, the court may deliver audio recordings |
| of the proceedings instead of a transcript. The cost to produce the |
| transcript, audio recording, or clerk’s record shall be paid by the |
| appellant. Not later than the 10th calendar day after the date the |
| county court or county court at law, as appropriate, receives the |
| transcript, audio recording, or clerk’s record, the court shall |
| dispose of the appeal. The decision of the county court or county |
| court at law under this section is final and may not be further |
| appealed. |
This section is to make sure that not all of the appeals are trial de novo in the County Court. This means that animal owners are treated differently depending on where they live. If their case ends up in a municipal court of record, then their appeal is limited to the transcript from that court. That creates forum shopping by the government to gain more power because if these cases are heard in JP Courts, none of them have records, so appeals are always by trial de novo. Stated differently, there are no transcripts in JP Courts. This is a good thing for an owner or otherwise they are limited to a hearing and can be divested of ownership with only one judge determining their fate.
This bill needs to be soundly defeated. It intended purpose is to make appeals available according to the law but impossible in practical application due to the excessive costs. This bill is supported by the same organizations that opposed appeals altogether.
Just because an owner is accused of cruelty does not mean in every case the authorities got it right. The deck is stacked against an owner who is faced with trying to prove they are not cruel. Animal control, representatives from humane organizations that can include veterinarians and cruelty investigators, the government attorney all testify against the owner which can be overwhelming. The appeals process provides a system of much needed checks and balances and should not be made practically impossible for animal owners and rescue organizations that find themselves in the crosshairs of cruelty seizures.
