I have a terrible case where 10 dogs were seized, 4 more were dead at the property, still chained to fences and some were just skeletal remains. The code makes killing a state jail felony, and I wonder if intentional starvation would rise to the level of killing for the purposes of taking this to a Grand Jury. Has anyone reviewed the new lasw on cruelty that go into effect in September?

[This message was edited by Mary Beth Scott on 07-19-07 at .]

PC Sec. 42.09(a)(5) regarding killing an animal applies to an animal owned by another. The current statute allows an owner to kill his/her own animal without penalty. I am afraid you are stuck with PC Sec. 42.09(a)(2), a Class A misdemeanor, for failing unreasonably to provide necessary food, care, or shelter for the animals. What about attempting to stack the punishment?

you'd think starvation resulting in death would surely consitute torture and thus be a felony, but not in the opinion of our esteemed appellate court judges.

I bet they'd call it torture if we were doing it to enemy combatants at Guantanamo.

Had a very similar case where the defendant starved several horses to death. Horses presented an even stranger result because horses are exempted from (a)(5)(Killing) My recollection was that the CA held that, since the statute specifically makes it one crime to fail to provide food to an animal and another crime to torture, you could not "bootstrap" failure to feed (a misdemeanor) to a felony by calling it torture. Because I was dealing with horses, (a)(5) was inapplicable. The CA shut me out on torture and I was left with a class A failure to feed. What added insult to injury was that I could charge someone with a felony for "tripping" a horse but it is a misdemeanor to starve it to death. 42.09 is a wreck but I also recognize the difficulty in drafting a "one size fits all statute". What may be OK in the country (shooting potentially "wild" dogs on your land for example) might not float in more urban settings but the problems with this statute are still difficult to reconcile.

The legislature tried to patch things up with HB 2328. The made Section 42.09 apply only to "livestock," and added 42.092 for non-livestock animals.

Janette A

I had to research 42.09 extensively during the session. I don't know of any cases in which an omission like failure to feed was deemed to be torture. In addition, HB 2328 now defines torture in the statute, and that definition is limited to acts, not omissions.

I don't see any way to make this a felony. It might under the new PC Sec. 42.092, but even then, only if the deaths were caused "in a cruel manner," which would be subject to debate.

Sorry.

On the bright side, you can get one count for every animal. I did that years ago with a guy who starved 200 emus because he bought into that fad and the market flopped. I charged him in a 10 count information. Jury found him guilty on all ten counts. The judge gave him 30 days in jail and a $40,000 fine. He eventually paid every cent of it, too!