An Introduction to Animal Law

By Donald Feare, Esq. and Christy Lawrence, Legal Assistant

Introduction

Animal law is a vastly emerging area of the law. Animal law encompasses areas such as litigation, criminal, family law, probate and real estate, and is certainly an area of the law in which paralegals can play a vital role.

Animals fit into two categories: domesticated or wild. “Animal” is defined as “Non-human, animate being which is endowed with the power of voluntary motion. Animal life other than man.” Black’s Law Dictionary, 87 (6th ed. 1990).

This article is designed to give you a brief overview of certain areas of animal law, focusing on litigation, and will also discuss recent victories on behalf of animals.

Texas Statutes Governing Animals

Civil: Title 10, Tex. Health & Safety Code, Chapter 821 is the civil statute dealing with animals in the State of Texas.

Criminal: Tex. Penal Code § 42.09 is the criminal statute dealing with animal cruelty in the State of Texas. With the recent passage of H.B. 653, five types of animal cruelty in Texas are now a “state jail felony.” We won’t be discussing the criminal aspect of animal, since the District Attorney handles prosecution of these cases. [NOTE: With the passage of H.B. 653, sections of Tex. Penal Code § 42.09 will be amended.]

Loss of Pet

Animal law cases generally exist within three legal areas: (1) loss of commercial animal, (2) loss of a companion animal, and (3) suits against governmental entities. This article will not consider law in regard to loss of a commercial animal for the simple reason that the value of such loss is market value, is established by the market at the time of the loss and the holdings in this area don’t vary much at all.

As to loss of a companion animal, the law is developing and not solely in suits for the loss of animals. Animals are personal property and the owner is entitled to recovery for their loss. Bueckner v. Hamel, 886 S.W. 2d 368 (Tex. App.—Houston [1st Dist.] 1994); Star Houston, Inc. v. Kundak, 843 S.W. 2d 294 (Tex. App.—Houston [14th Dist.] 1993 . However, in the concurring opinion in the Bueckner case, Justice Andell opined that the market value of a beloved companion animal is insufficient to satisfy reasonable recovery for its loss and people should not be required to settle for market value.

Other cases have held that the owner is entitled to recover intrinsic value or special value in cases where the personal property has no real market value. Porras v. Craig, 675 S.W.2d 503 (Tex. 12984); Brown v. Frontier Theatres, Inc. 369 S.W. 2d 299 (Tex. 1963).

There is only one appellate case exactly on all fours with the beloved pet companion animal loss. The case is Zeid v. Pearce, 953 S.W. 2d 368 (Tex. App.—El Paso 1997) which was a case against a veterinarian for the loss of a pet. The court held that the value of the loss of a pet is market value or some special or pecuniary value to the owner that may be ascertained by reference to the dog’s usefulness of services. The court cited Heiligmann v. Rose, 81 Tex. 222, 225, 16 SW 931 (Tex. 1891) as its authority. The Zeid suit was a suit for damages arising from emotional pain and suffering. The court held that such damages were not recoverable, but notes that plaintiffs had not sought any other damages, such as loss of companionship, love or affection. Clearly the court left the door open to more appropriate pleadings seeking damages as to the value of the companionship, love and affection of a companion animal to a human.

The legislature had evidenced a willingness to view animals as something more than personal property. Pine v. State, 921 S.W. 2d 866 (Tex. App.—Houston [14th Dist.] 1996.

The “more than personal property” position was made very clear in the case of Arrington v. Arrington, 613 S.W. 2d 565 (Tex. App.—Fort Worth 1981) wherein the appellate court approved of the appointment by the family law trial court of one of the litigants as the “managing conservator” for the pet dog. The case discussed the capacity for love in the dog.

The time is right and the case will come along that has all of the necessary ingredients to make a good loss of companionship, love and affection case. Some of the relevant issues would appear to be the length of time the owner had the pet, how it was killed, what type of animal it was and, if a dog, what breed. However, it should be noted that if the dog was a rare breed and had been purchased for a great deal of money, the court is very likely to use the tried and true market value test for damages.

Governmental Agencies

The next area of law is that of suing governmental entities on behalf of animals. These cases usually involve the use of animals in some sort of experiment. Others have involved the issue of the school animal care and use committee being subject to the Texas Open Meetings Act and provision of alternative classes in the biology department for those students opposed to learning on actual animals.

The first cry one will hear from the defending party, usually represented by the Texas Attorney General’s Office, Administrative Law Division, will be twofold: (1) immunity and (2) standing of the plaintiff(s). As to immunity there is little area to move around. The government has such immunity except in certain cases. Generally those fall within a violation of substantive law and of course the showing of actual injury to a party which is covered by the Texas Tort Claims Act. Most often, in our experience, the claim of violation of substantive law has been the first avenue of attack.

It is the duty of the court to enjoin a violation of substantive law and there is no discretion to be exercised one the violation has been proven. Priest v. Texas Animal Health Commission, 780 S.W. 2d 874, 875 (Tex. App.—Dallas 1989). Proof of irreparable harm is usually required for injunctive relief, is not necessary in cases where violation of substantive law is shown. Town of Palm Valley, Texas v. Johnson 17 S.W. 3d 281, 286 (Tex. App.—Corpus Christi 2000).

However, whether suing state or local government entities, the strongest argument they can muster will be one of standing. The issue of standing has been in flux for some time now and is still as murky as it started out. At this time, the leading case as most cited by the courts on associational/organizational standing is Texas Association of Business v. Texas Air Control Board, 852 S.W. 2d 440 (Tex. 1993). Most often, suits against governmental entities are brought by local, state, or national animal or environmental organizations. So, typically the association or organization suit must pass the current test for standing. Texas Ass’n. of Bus. overruled the long standing and certainly more liberal test for standing announced in Texas Industrial Traffic League v. Railroad Commission, 633 S.W. 2d 831 (Tex. 1982). As is easily seen, the Texas Supreme Court ignored stare decisis and overruled itself. The test announced in the latest case is much more difficult to pass.

The one point of light in the Texas Ass’n. of Bus. case is that the opinion states that we should look to the federal system on standing issues as it has far more experience in making such determinations. In support of that position, the Court adopted the case of Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977) as the guiding test for associational/organizational standing in Texas.

The Texas Court announced that the standing requirement stems from two limitations on subject matter jurisdiction: the separator of powers doctrine and, in Texas, the open courts provision. Of course, we should remember that is the very open courts provision cited in the case that has historically been used to give all litigants possible their day in court, not limit the categories for these litigants.

The general test for standing in Texas falls within two required categories: (a) there must be a real controversy between the parties, which (b) will be actually determined by the judicial relief sought. There would seem little doubt that animal suits against the government meet these generalized criteria. However, the Hunt test adopted by Texas is somewhat more detailed. In Hunt the Supreme Court of the United States held that an association has standing to sue on behalf of its members if: (1) its members would otherwise have standing to sue in their own right, (2) the interests the suit seeks to protect are germane to the organization’s purpose and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. It is usually the first prong of the test that stops the suit.

The Supreme Court in Hunt stated that the purpose of the first prong was to eliminate suits wherein allegations of standing had been manufactured without any real foundation. However, it went on to hold that this requirement should not be used to bring otherwise worthwhile suits to an end.

The last prong of the test, that the members’ participation in the suit is not necessary, is described as the members having had standing, and the suit being within the purpose of the organization, it can be assumed that the benefit of the suit will inure to the benefit of the individual members. Thus, if you get this far, your are probably in the clear on the standing issue. But most suits never get to the last prong. They rarely get to the second prong. Trial courts and appellate courts are given to dismissing cases due to lack of standing and thus, lack of jurisdiction. How you get from point A to point B is unclear. It really depends on which case you use to show individual standing. Some are quite liberal and some are not.

Even the federal system has, on occasion, adopted a very liberal position on standing. The cases have allowed standing for both animal and environmental groups to sue based on even the slightest of interest injury, that of esthetic or recreational. American Horse Protection Assoc., Inc. v. Frizzell, 403 F. Supp. 1206-1214-15 (U.S. Dist. Ct.—D. Nev. 1975); see also Sierra Club v. Madigan, 192 WL 501733 (E. Dist. Tex. 1992); Animal Welfare Institute v. Kreps, 561 F. 2d 1002 (U.S. Ct. App.—D.C. Cir. 1977). And state law has followed in some cases, and it is from these cases that standing is made murky. Lake Medina Conservation Society, Inc. v. Texas Natural Resources Conservation Commission, 980 S.W. 2d 511 (Tex. App/—Austin 1998); Touchy v. Houston Legal Foundation, 432 S.W. 2d 690 (Tex. 1968); Texas Highway Commission v. Texas Association of Steel Importers, Inc., 372 S.W. 2d 525 (Tex. 1963).

Little can be done to anticipate which way the law will go from here. Clearly the pendulum has swung too far. Real life issues within our society that were not recognized years ago are in the forefront now, and animal abuse cases, as well as others, are not being provided access to the courts. As attorneys and paralegals, all we can do is to continue the fight to get these cases before juries and at all times remember that the case is not the group against a governmental entity, it is a vehicle whereby those creatures without a voice to cry out have the voice of those in the practice of law.

Conclusion

Animals are a part of many areas of the law. It is vital that you become familiar with your local city ordinances and state statutes regarding animals. It is also important that paralegals become involved and educate other legal professionals on the importance of taking cases involving animals. Animals cannot speak for themselves so we must take the lead. 

Frequently Asked Questions

1.  Is there a leash law in my city?

Answer: Be sure and ALWAYS check your city’s ordinances regarding animals.

There just might an ordinance on leashing your pet.

2.  I adopted a dog from a local shelter. The owner is now wanting the dog back. 

Answer: You need to find out why the dog was taken to the shelter, what condition was the dog in? How long had the dog been in the shelter? Had the dog been a victim of abuse? These questions must be answered before you can proceed.

3.  What action can I take when a renter does not pay rent for the horses I board for him? 

Answer: There is a common law Stableman’s Lien which provides for a lien on any animal placed with the caretaker that has not been paid for.

4.  What action can I take against a local city pound for neglect and cruelty?

Answer: First, you will need to call the local police department. Next, you will need to contact the Animal Shelter Advisory Committee in your city and contact your regional director of the Texas Department of Health, Zoonosis Division, to make a complaint (http://www.tdh.state.tx.us/zoonosis). Animal shelters are governed by § 823.003 of the Texas Health and Safety Code.

Additional Sources

Animal Legal Defense Fund - http://www.aldf.org 

Animal Protection Institute - http://www.api4animals.org 

Animal Rights Legal Foundation - http://www.animalrightslaw.org 

State Bar of Texas—Animal Law Section - http://www.animallawtexas.com 

Texas Humane Legislative Network - http://www.thln.org 

ANIMAL BILLS PASSED IN THE 77TH LEGISLATIVE SESSION

H.B. 1362—Regulates the ownership of dangerous wild animals, such as lions, tigers, bears, etc. 

H.B. 998—Releases Animal Friendly License plate funds immediately for distribution to spay/neuter programs.

H.B. 653—Amends the current animal cruelty statute to make animal cruelty a felony. The bill also clearly defines “animal cruelty,” which would make prosecution of animal cruelty easier.

S.B. 261—Requires pet stores to warn consumers about certain human diseases, such as salmonella, which are carried and transmitted by reptiles.

S.B. 1194—Protects bats from commercial exploitation and hunting.

S.B. 685—Transfers the regulation of riding stables from the Texas Department of Health to the Texas Animal Health Commission. 

Donald Feare, Esq. is an attorney in Arlington, Texas who is very active in animal law issues and who has worked on my precedent-setting cases in the field of animal law. He has published numerous papers, has testified as an expert witness in animal abuse cases, and has provided consulting services for local municipal governments related to waterfowl and the environment. He also serves as a consultant for local television stations.

Christy Lawrence is a legal assistant in Dallas. She is very active in the area of animal law, serving as the chair of the Legal Assistant Committee of the State Bar’s Animal Law Section, the founder and chair of the Dallas Area Paralegal Association’s Animal Law Section, and has also been active as the Animal Law Listserve facilitator for NFPA. She has been a speaker and has presented papers on animal law issues. She was the recipient of the 2001 Exceptional Pro Bono Service Award, presented by the Legal Assistants Division, and of the 2000 Distinguished Support Award, presented by the Dallas Bar Association—Pro Bono Activities Committee.