Tex. Penal Code � 28.04 (2010)

� 28.04. Reckless Damage or Destruction

I'd like to go after a guy whose dog got out and tore up some fencing and another dog. But it wasn't the guy's conduct but his dog's that causes the damage. Can I get there?

Of course, it is the owner that must have been reckless in causing the result. Was the dog's owner aware of, but consciously disregarded, a substantial and unjustifiable risk that the damage would occur? A tough one--especially without knowing any facts. But if a person with a car or a gun caused the damage, wouldn't they be subject to prosecution under the statute? The medium is different, but the dog's culpable mental state is not at issue either.

You really want to convert a civil cause of action into a crime? Unless the guy was standing there ordering the dog to engage in the destruction, I would resist that effort.

My first (deleted) response, JB, was this is a civil cause of action. But my analogies made me think otherwise. The dog doesn't have to be ordered to do anything. If there is a history of the owner's indifference to his dog escaping and causing damage, a Class C might serve as a valuable lesson.

What if a person had a dangerous bull that damages property when out of its enclosure but the owner just doesn't give a damn whether the bull gets out and destroys the neighbor's car. In fact, he thinks it is rather funny! Sure a civil case would lie, but when does it become a criminal matter? We can disagree philosophically about the applicability of prosecuting in close cases, but that doesn't mean the criminal law couldn't be applied.

[This message was edited by John A. Stride on 02-03-11 at .]

It sure looks and smells civil to me. The canine is not as wholly under the control of the actor as, say, a car or firearm. If it was his kid who got out and tore up stuff...and the kid was too young for Juvie court...would it be criminal?

Lisa L. Peterson
Nolan County Attorney

I go with civil as well, based on the info provided. That's what civil courts are made for.

I don't think a class c will deter anymore than a good civil suit would.