My presentation at the State Bar of Texas 2013 Animal Law Institute in Houston, TX, March 22, 2013

1. Animal Welfare Legal Issues for
Nonprofits
Animal Law Institute
March 22, 2013
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2. Animal Welfare Legal Issues
David C. Wells
Co-Chair, Animal Welfare
Committee
Austin Bar Association
wellsdc@gmail.com
Kelley Dwyer, Rebecca Whitehouse
Co-Chairs
Based in part on a presentation
prepared by Stacy Wolf, Senior
Director, Legislative Services &
Anti-Cruelty Training, ASPCA
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3. Ownership and Seizure of
Animals
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4. Who has Power to Seize Dogs
and When?
"Stray" dogs
 Left to local ordinance and regulation, no mention in
Health & Safety Code
 Austin: a city employee may seize unrestrained dogs,
including on private property with owner's permission.
City Code Sec. 3-4-3.
 "Restrained" means leashed when with the owner or
behind a fence.
 Bastrop: citizen or animal control officer may seize
animals at large and turn them over to animal control.
Code of Ordinances Sec. 2.04.005(b). 4

5. Who has Power to Seize Dogs
and When? (cont.)
Dogs that have caused death or serious bodily injury
to a person. Tex. Health & Safety Code Sec.
822.002
"Animal control authority" has power to seize them.
Dog is impounded for a minimum of 10 days (rabies
observation)
A court shall order the dog "destroyed" if it finds the
dog caused the death of a person.
A court may order the dog "destroyed" if it finds the
dog caused serious bodily injury to a person. 5

6. Who has Power to Seize Dogs
and When? (cont.)
Dog or coyote attacking livestock (Sec. 822.013):
May be killed by a person witnessing an attack or the
owner of the animal(s) who were or are being
attacked. Includes dogs who are "about to attack"
livestock, whatever that means.
May be seized by animal control officers
May be seized by persons who find the dog on their
property, then turned over to the owner or animal
control.
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7. Who has Power to Seize Dogs
and When? (cont.)
NOTE the distinction between animal control
authorities and private citizens.
Most statutes and regulations only address animal
control, law enforcement.
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8. Seizure of animals that are
suspected victims of cruelty
State law governs seizure in cruelty cases.
Seizure of cruelly-treated animals: Health & Safety Code
Ch. 821, Subch. B
Peace officer or animal control officer may seize an animal
with "reason to believe" animal has been "cruelly treated"
("tortured, seriously overworked, unreasonably
abandoned, unreasonably deprived of necessary food,
care, or shelter, cruelly confined, or caused to fight with
another animal“)
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9. Seizure of animals that are
suspected victims of cruelty (cont.)
 Hearing must be held within 10 days. Statements at this
hearing are not admissible in a prosecution of the animal's
owner for animal cruelty.
 Upon finding of cruelty, court can order the animal:
 Sold at auction
 Given to a nonprofit or public animal shelter
"Humanely destroyed" if it is in the animal's best interest or the
best interest of public safety
 Very limited rights of appeal for animal owners.
 This means very little caselaw. 9

10. How long do shelters have to
“hold” seized dogs?
Animals surrendered without identification:
 Austin and Bastrop: 3 days.
Animals surrendered with identification:
 Austin: 3 days
 Bastrop: 10 days, plus a requirement that animal control
attempt to locate the owner
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11. How long do shelters have to
“hold” seized dogs?
Animals surrendered by the owner:
 Austin: does not specifically say
 Bastrop: animal becomes property of the city immediately
 Impounded animals must have sufficient food and water. Tex.
Health & Safety Code Sec. 821.002(a)
 Person may enter a shelter to feed animals left more than 12
hours without food or water, may recover costs Sec.
821.002(b)

12. What Happens after the “Hold”
period Expires?
If no one has come forward claiming ownership of the
animal, it becomes the property of the city or county.
Adoption
Picked up by rescue group
Euthanasia
City of Austin prohibits euthanasia of animals by
animal shelter for non-health or behavioral reasons
when kennel space is available.
City of Bastrop does not have that prohibition. 12

13. Can Shelters Euthanize during
the hold period?
Yes, if it is deemed to be in the animal's best
interest.
"The health authority may destroy an animal earlier
than three business days after the date of impound if
the health authority obtains an opinion from a
veterinarian stating that the animal is sick or injured
and that destruction is necessary to avoid
unnecessary suffering by the animal." Austin City
Code Sec. 3-1-26(B).
Bastrop's Code does not specifically address this
issue. 13

14. How does one “prove”
Ownership’?
"Ownership" not defined by state statute.
Austin: "a person who owns, feeds, keeps,
maintains, or harbors an animal or who knowingly
allows an animal to remain on the person’s
property." City Code Sec. 3-1-1(9)
Bastrop: "any person or entity having temporary or
permanent custody of, owning, keeping, sheltering,
in charge of, controlling, maintaining, having property
rights to, or harboring one or more animals covered
by this chapter." Code of Ordinances Sec. 201.001
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15. How does one “prove”
Ownership’? (cont.)
Proof of title:
•Microchip
•License
•ID tag
•Veterinary records
•Photographs
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16. When does “ownership” end so that an
animal can be legally adopted to
another?
No clear legal definition or standard.
Typically at the end of any statutory hold period, if
animal remains unclaimed.
Also relates to cruel treatment laws and procedures.
 Owner can be divested of ownership if a court rules
that cruel treatment occurred.
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17. Liability Concerns for Volunteers
and Rescuers
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18. Volunteers who help non profit
groups rescue animals in times of
disaster
Some legal protections if volunteer is acting within
the scope of their volunteer role.
Volunteer Protection Act, 42 U.S.C. § 14501
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19. Volunteer Protection Act
 Only applies to volunteer assistance
 Must be “acting within scope of volunteer’s responsibilities”
 Properly licensed, certified or authorized (if required by law)
 Only applies to assistance to 501(c)(3) or (c)(4) non profits
 Only confers qualified immunity (for claims of negligence)
 Grossly negligent, willful, reckless behavior is not protected
 Harm cannot be caused by operation of vehicle, vessel or aircraft where the
state requires a license and insurance
 Law doesn’t protect nonprofit corporation itself, just volunteers
 General liability insurance is crucial
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20. When can “rescue” result in
criminal sanctions?
 Trespass. Tex. Pen. Code Sec. 30.05.
 Burglary. Tex. Pen. Code Sec. 30.02.
 Theft. Tex. Pen. Code Sec. 31.03.
 Animal cruelty. Tex. Pen. Code Sec. 42.09 (livestock animals),
Sec. 42.091 (assistance animals), Sec. 42.092 (nonlivestock
animals)
 Abandonment. Tex. Pen. Code Sec. 42.09(b)(1), 41.092(a)(1):
"abandoning an animal in the person's custody without making
reasonable arrangements for assumption of custody by
another person." Health & Safety Code Sec. 821.021: "cruel
treatment" includes "unreasonable" abandonment
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21. Possible animal cruelty liability of
rescuers
Austin and Bastrop both include people with custody
or care of an animal in their definition of an “owner.”
Taking an animal into your custody by “rescuing” it
could lead to criminal liability for animal cruelty for
failing to provide adequate food, water, or shelter.
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22. Do you commit abandonment
when you leave animals behind in
a disaster?
Remember mens rea! Need intent to desert
Health & Safety Code Sec. 821.021: "cruel
treatment" includes "unreasonable" abandonment.
If animal is abandoned, this may negate theft claim
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23. Does it matter if a “rescuer” didn’t
intend to “steal” a pet?
Mens rea: What the defendant thinks matters
Do you commit theft when you remove a dog from its
home to save it from imminent disaster?
 Maybe no, if intent was to “rescue” and “reunite”
 Maybe yes, if intent was to remove and never return
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24. Defenses to Criminal Charges
“Necessity”
 Would a reasonable person believe the defendant’s actions were necessary
to avoid a greater harm?
 Was defendant at fault in creating the injury sought to be avoided? (e.g. you
can’t use the necessity defense if you are one who placed the animal in the
dangerous situation to begin with).
 Does the desirability and urgency of avoiding the threatened injury outweigh
the desirability of the injury sought to be prevented by the criminal law
defendant is charged with violating?
 (e.g. does the desirability of saving an animal from starvation outweigh
the desirability of preventing trespass and larceny?)
 Were there any reasonable alternatives to the defendant’s actions?
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25. Case of Malvin Cavalier and
Bandit
•86 year-old Katrina refugee, forbidden to take dog Bandit
with him. Bandit was rescued after the storm and adopted
by a Pittsburgh couple.
•Cavalier sued when the adopters refused to return Bandit.
•He made no allegations of mistreatment. The only issue
was ownership, or right of possession of Bandit.
•The case settled and Bandit went back to New Orleans
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26. Case of Malvin Cavalier and
Bandit (cont.)
Malvin and Bandit reunited, September 2006
via ericsdogblog.com
•Malvin Cavalier died in 2010, and Bandit went to live with
his rescuers, who had moved to Ottawa, Ontario
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27. Questions?
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