* . 

The Attorney General of Texas 

March 24, 1980 

Honorable Bill Stubblefield 

Williamson County Attorney 

Georgetown, Texas 78626 

Opinion No. m-154 

Re: Constitutionality of a county 

dog ordinance based on article 

192-3, V.T.C.S. 

Dear Mr. Stubblefield: 

You ask two questions concerning a county ordinance that authorizes 

the killing of dogs for attacking domestic animals. The ordinance adopts 

article 192-3, V.T.C.S., which includes the following provision: 

Any dog, whether registered and tagged or not, 

when found attacking any sheep, goats, calves, and/or 

domestic animals or fowls, or which has recently 

made, or is about to make such attack on any sheep, 

goats, calves, and/or other domestic animals and 

fowls, may be killed by anyone present and witnessing 

or having knowledge of such attack and without 

liability in dsmsge to the owner of such dog. . . . 

Sec. 3. You wish to know whether this provision violates constitutional 

protections sgainst taking of property without due pmcess of law. 

It is well established that property which is dangerous to the safety of 

the community may be summarily destroyed without violating due process of 

law. Sentell v. New Orleans & C. R. Co., 166 U.S. 698 (1897); Cannon v. City 

of Dallas, 263 S.W.2d 288 (Tex. Civ. App. - El Paso 1953, writ rePd n.r.e.). 

A vicious dog which endangers the safety of property may be lawfully killed. 

City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. - Eastland 1963, 

writ ref’d n.r.e. . 

Statutes similar in most respects to that at issue here have been 

upheld in a number of jurisdictions. A Colorado statute, whose validity was 

sustained in Falling v. People, 98 P.2d 865 (Cola. 1940), provided that “any 

dog found running, worrying or injuring sheep or cattle may be killed” 98 

P.2d, at 866. In New Jersey, the statute permitted the destruction by any 

person of “a dog . . . which is found chasing, worrying, wounding or 

destroying sny sheep, lamb, poultry or domestic animal.” Bunn v. Shaw, 69 

P. 495 
Honorable Bill Stubblefield - Page Two (MW-154) 

A.2d 576, 577 (N.J. 19491. And in Saucy v. Wysocki, 96 A.2d 225 (Corm. 19531, the court 

upheld a statute which provided 

any owner . . . of any domestic animal or poultry . . . may kill any 

dog which he shall find pursuing or worrying any such domestic 

animal or poultry. 

96 A.24 at 228. 

By contrast, the Supreme Court of Idaho struck down on due process grounds a 

statute which permitted a game warden to kill %ny dog running at large in territory 

inhabited by deer.” In that case, Smith v. Costello, 290 P.2d 742 (Id 1955), there was “no 

contention that the dogs were tracking, chasing, molesting or worrying deer or had the 

habit of so doing.l’ Id at 743. The court held that a legislative declaration 

- 

that a dog running at large in territory inhabited by deer is a public 

nuisance, without more, is an arbitrary, unreasonable, and 

unconstitutional regulation. 

Id at 744. It is instructive to note, however, that even the Idaho court indicated that its 

ztermination might have been otherwise had it been demonstrated that the dog in 

question “had the habit” of chasing deer. These decisions seem to indicate that section 3 

of article 192-3, V.T.C.S., will withstand attack on constitutional grounds. 

You next ask what standard would be required to show that a dog is “known to hsve 

attacked . . . a domestic animal or fowl?” This inquiry requires the consideration and 

resolution of fact questions, and therefore cannot be answered in an Attorney General 

Opinion. 

Although we cannot conclude that section 3 of article 192-3, V.T.C.S., is violative 

of due process, we believe it is appropriate to take cognizance of the relative severity of 

a statute which authorizes the summary destruction of a dog by any person “having 

knowledge” of the dog’s attack on any “domestic animal” The statute reflects a long 

standing conflict between livestock owners and dog lovers, particularly in rural areas, and 

article 192-3, V.T.C.S., cannot of course be implemented in the absence of an affirmative 

county-wide majority vote. All three state courts which have upheld statutes similar to 

article 192-3, V.T.C.S., must have felt a similar sense of unease, however, for each of 

them added a few comments on the law’s significance. 

The Connecticut court said that 

recent authority tends toward the full recognition of property 

rights in dogs as in other domestic animals. 

Saucy, sllpra. at 228. The New Jersey court indicated that 

P. 496 
- . 

Honorable Bill Stubblefield - Page Three (NW-1541 

opinions may well differ as to the equities of a particular case and 

we may sympathize with the views of the respective parties, but 

they are not our concern. 

Bunn, supra, at 578. The court implied that a relaxation in the statute’s severity may be 

overdue, but that amendment must come from the legislature. Bunn, supra, at 578. And 

in Falling v. People, a, the court, while upholding the law, was not reluctant to 

disclose its sympathies: 

With such legal sanction as is provided by section 40, a dog’s life 

continues to be more haxardous in rural than in urban territory. 

Evidently the clash is between the economic and the aesthetic. We 

may sympathize with the aesthetic, but positive law must controL 

96 P.2d, at 867. 

Before article 192-3, V.T.C.S., can be adopted in any county, it must be approved by 

an affirmative vote of the voters of the county. As we have noted, article 192-3, 

V.T.C.S., need not be adopted in any county, but in any county in which sheep, cattle and 

other livestock remain of substantial economic importance, it is available to protect those 

interests from attacking dogs. 

SUMMARY 

A county ordinance which, pursuant to an affirmative vote of the 

people of the county, adopts the provisions of section 3 of article 

192-3, V.T.C.S., is not unconstitutional. 

e 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

P. 49-l 
Honorable Bill Stubblefield - Page Four (MW-154 1 

Walter Davis 

Susan Garrison 

Rick Gilpin 

Eva Loutzenhiser 

Bruce Youngblood 

P. 498