*

.



# 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 isabout to make such attack on any sheep, goats, calves, and/or other domestic animals and fowls, may bekilled byanyone present and witnessing or having knowledge of such attack and without liability in dsmsge to the owner ofsuch dog.

... Sec. 3. You wish to know whether this provision violates constitutional protections sgainst taking ofproperty without duepmcess oflaw. 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. NewOrleans &C.R. Co., 166U.S.698 (1897);Cannon v.City of Dallas, 263S.W.2d 288 (Tex. Civ. App. - ElPaso 1953,writ rePd n.r.e.). Avicious dog which endangers the safety ofproperty 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 anumber ofjurisdictions. AColorado 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. 495Honorable 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 astatute 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 orpoultry. 96A.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, 290P.2d 742 (Id 1955),there was“no contention that the dogs were tracking, chasing, molesting or worrying deer or had the habit ofso doing.l’ Id at 743. The court held that alegislative declaration

- that a dog running at large interritory inhabited bydeer isapublic 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 onconstitutional 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 dueprocess, webelieve 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 doglovers, particularly inrural areas, and article 192-3, V.T.C.S., cannot ofcourse be implemented in the absence ofan 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 onthe law’ssignificance. The Connecticut court said that recent authority tends toward the full recognition of property rights in dogsas inother domestic animals. Saucy, sllpra. at 228. The NewJersey court indicated that

P. 496- .

Honorable Bill Stubblefield - Page Three (NW-1541
opinions may well differ as to the equities of aparticular 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’slife continues to be more haxardous in rural than in urban territory. Evidently the clash isbetween the economic and the aesthetic. We may sympathize with the aesthetic, but positive law must controL 96P.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 ofsubstantial economic importance, it isavailable 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., isnot unconstitutional.



# e

Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman

P. 49-lHonorable Bill Stubblefield - Page Four (MW-1541

Walter Davis Susan Garrison Rick Gilpin Eva Loutzenhiser Bruce Youngblood

P. 498