NUMBER 13-20-00200-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

STEVEN ELMER HINDS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court

of Karnes County, Texas.

 

OPINION

Before Justices Longoria, Hinojosa, and Tijerina

Opinion by Justice Hinojosa

Appellant Steven Elmer Hinds was convicted of cockfighting, a Class A 

misdemeanor, following a jury trial.1 See TEX. PENAL CODE ANN. § 42.105. The trial court 

1 This appeal was transferred to us from the Fourth Court of Appeals pursuant to a docket 

equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.§ 73.001.
2

imposed a suspended sentence of twelve months’ confinement in the county jail, and it 

placed Hinds on community supervision for one year. In ten issues, Hinds argues that the 

cockfighting statute is facially unconstitutional. We affirm.

I. BACKGROUND

Hinds was charged by information with knowingly owning or training a cock2 with 

the intent that the cock be used in an exhibition of cockfighting, and with manufacturing, 

buying, selling, bartering, exchanging, possessing, advertising, or otherwise offering a 

gaff,3 slasher4 or any other sharp implement designed for attachment to a cock with the 

intent that the implement be used in cockfighting. See id. § 42.105(b)(4), (5).

Hinds pleaded not guilty and later filed five motions to dismiss alleging that 

§ 42.105 of the penal code violated various provisions of the United States and Texas 

constitutions. The trial court denied the motions, and the case proceeded to a jury trial. A 

jury found Hinds guilty, and he now appeals.

II. BRIEFING WAIVER

In ten issues, Hinds argues that the cockfighting statute violates the following 

provisions of the United States Constitution: (1) First Amendment; (2) Fourth Amendment; 

(3) Fifth Amendment; (4) Article VI, Paragraph II; (5) Sixth Amendment; (6) Eighth 

Amendment; (7) Ninth Amendment; (8) Tenth Amendment; (9) Fourteenth Amendment; 

2 The Texas Penal Code defines a “cock” as “the male of any type of domestic fowl.” TEX. PENAL 

CODE ANN. § 42.105 (a)(2).

3 A “gaff” is “an artificial steel spur designed to attach to the leg of a cock to replace or supplement 

the cock’s natural spur.” Id. § 42.105(a)(4).

4 A “slasher” is “a steel weapon resembling a curved knife blade designed to attach to the foot of 

a cock.” Id. § 42.105(a)(5). 
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and (10) Article V. See U.S. CONST. amends. I, IV–VI, VIII-X, XIV; arts. V, VI.

Hinds has waived issues two and four through ten due to inadequate briefing. See

TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the 

contentions made, with appropriate citations to authorities and to the record.”). Apart from 

general references to the provisions of the United States Constitution, Hinds provides no 

analysis with citation to appropriate legal authority explaining how § 42.105 violates these 

constitutional provisions. Hinds’s conclusory assertions that the statute is unconstitutional 

are inadequate; therefore, he has waived these issues. See Morehead v. State, 807 

S.W.2d 577, 579 n.1 (Tex. Crim. App. 1991); see also Nelson v. State, No. 01-17-00746-

CR, 2018 WL 6495171, at *8 (Tex. App.—Houston [1st Dist.] Dec. 11, 2018, pet. ref’d)

(mem. op., not designated for publication) (concluding that appellants waived their

constitutional challenge to § 42.105 of the penal code where they cited no supporting 

authority and provided no analysis). We overrule Hinds’s second and fourth through tenth 

issues. We will proceed to address Hinds’s first and third issues which are facial 

challenges to the constitutionality of § 42.105.

III. CONSTITUTIONAL CHALLENGE

A. Standard of Review

A facial challenge to the constitutionality of the statute attacks the statute itself 

rather than the statute’s application to the defendant. Peraza v. State, 467 S.W.3d 508, 

514 (Tex. Crim. App. 2015). Whether a statute is facially constitutional is a question of 

law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We 

begin our review with the presumption that the statute is valid and that the legislature has 
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not acted unreasonably or arbitrarily. Id. at 14–15. “The burden rests upon the individual 

who challenges a statute to establish its unconstitutionality.” Peraza, 467 S.W.3d at 514 

(citing Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). To prevail on a 

facial challenge, a party must establish that the statute always operates unconstitutionally 

in all possible circumstances. Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App. 

2015); State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). We consider the 

statute only as it is written, rather than how it operates in practice. Salinas, 464 S.W.3d 

at 367. 

B. Cockfighting Statute

“Efforts to curb cockfighting have had a long history in Texas.” Gonzalez v. State, 

376 S.W.3d 141, 145 (Tex. App.—Tyler 2012, no pet.). In 1925, the Texas Legislature 

specifically outlawed a “cock fight” or other fights between “any animals or fowls.” Id.

“Over time, the wording of the statute changed, but the law has consistently prohibited 

causing animals to fight one another.” Id. Presently, the legislature defines cockfighting 

as “any situation in which one cock attacks or fights with another cock.” TEX. PENAL. CODE.

ANN. § 42.105(a)(3). Cockfighting is now illegal in all fifty states and in the District of 

Columbia. United States v. Gibert, 677 F.3d 613, 622 (4th Cir. 2012).

As applicable here, § 42.105 provides that it is a criminal offense if a person 

knowingly:

(4) owns or trains a cock with the intent that the cock be used in an 

exhibition of cockfighting; [or]

(5) manufactures, buys, sells, barters, exchanges, possesses, 

advertises, or otherwise offers a gaff, slasher, or other sharp 

implement designed for attachment to a cock with the intent that the 
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implement be used in cockfighting[.]

TEX. PENAL CODE ANN. § 42.105(b)(4), (5). 

C. Establishment Clause

In his first issue, Hinds argues that § 42.105 violates the Establishment Clause of 

the First Amendment because it constitutes “government establishment of respect of the 

Pagan Religion[.]” See U.S. CONST. amend. I. Hinds contends that paganism is a “nature 

worshiping religion” and that “animal rights laws are a clandestinely designed effort to 

institute laws respecting the establishment of the Pagan religion and animal worship.”

The Establishment Clause provides, “Congress shall make no law respecting an 

establishment of religion[.]” Id. This prohibition extends to state legislatures via the 

Fourteenth Amendment. Id. at amend. XIV; Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 

290, 301 (2000). An Establishment Clause analysis requires examination of three criteria: 

“First, the statute must have a secular legislative purpose; second, its principal or primary 

effect must be one that neither advances nor inhibits religion; finally, the statute must not 

foster an excessive government entanglement with religion.” Flores v. State, 245 S.W.3d 

432, 438 (Tex. Crim. App. 2008) (quoting Lemon v. Kurtzman, 403 U.S. 602, 612–13 

(1971)). Mere consistency between a statute and religious tenets does not render a 

statute unconstitutional. Id. Otherwise, no penal provision would pass constitutional 

muster. Id.

Hinds has not met his burden in demonstrating that § 42.105 violates the 

Establishment Clause. Hinds cites no facts indicating that the Legislature’s purpose in 

enacting the statute was anything but secular in nature. Section 42.105 is found within 
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Title IX of the penal code, which is titled “Offenses Against Public Order and Decency.” 

Like other Title IX offenses, § 42.105 has a clear secular purpose of providing for the 

humane treatment of animals. The primary effect of the statute is penal in nature. The

mere fact that § 42.105 might be consistent with the tenets of a particular faith does not 

render the statute unconstitutional. See Holberg v. State, 38 S.W.3d 137, 140 (Tex. Crim. 

App. 2000). On its face, § 42.105 neither advances nor inhibits a particular religion.

Further, the statute contains no provisions that would lead to excessive government 

entanglement in religion. We conclude as a matter of law that § 42.105 does not violate 

the Establishment Clause. See Ex parte Lo, 424 S.W.3d at 14; cf. Hastey v. Bush, 82 

Fed. Appx. 370, 372 (5th Cir. 2003) (holding that the plaintiff failed to state an 

Establishment Clause claim because § 42.09 of the penal code, which criminalizes cruelty 

to livestock animals, has a secular purpose, does not advance or inhibit religious doctrine, 

and contains no provisions that would cause excessive government entanglement in 

religion). We overrule Hinds’s first issue.

C. Takings Clause

In his third issue, Hinds argues that § 42.105 of the penal code violates the Takings 

Clause of the Fifth Amendment. Hinds maintains that the statute constitutes “a ban on the 

use of property for the very purpose one owns the property”, thereby “depriv[ing] the 

owner of all ‘economically viable use’ of the property[.]” 

The Takings Clause of the Fifth Amendment provides that private property shall 

not “be taken for public use, without just compensation.” U.S. CONST. amend. V. The 

Clause is made applicable to the State through the Fourteenth Amendment. Id. at amend 
7

XIV. The Takings Clause prohibits both physical takings and regulatory takings. Lingle v. 

Chevron U.S.A. Inc., 544 U.S. 528, 537–38 (2005).

Here, Hinds alleges that § 42.105 of the penal code constitutes a regulatory taking, 

which occurs when the government imposes restrictions that either deny a person all 

economically viable use of his property or unreasonably interferes with the person’s right 

to use and enjoy the property. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 

1998); City of Houston v. Commons at Lake Hous., Ltd., 587 S.W.3d 494, 499 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.). “[D]etermining whether the government has 

unreasonably interfered with a landowner’s right to use and enjoy property requires a 

consideration of two factors: the economic impact of the regulation and the extent to which 

the regulation interferes with distinct investment-backed expectations.” Mayhew, 964 

S.W.2d at 935.

“[G]overnment regulation—by definition—involves the adjustment of rights for the 

public good.” Andrus v. Allard, 444 U.S. 51, 65 (1979). Such regulations will often curtail 

the potential use of private property for economic purposes. Id. But to require 

compensation in all of these scenarios would require the government to “regulate by 

purchase.” Id. Therefore, the Takings Clause preserves the government’s police power, 

subject only to the dictates of justice and fairness. Id. In other words, some property rights 

must yield to a government’s legitimate exercise of its police powers. Lucas v. S.C. 

Coastal Council, 505 U.S. 1003, 1027 (1992). Furthermore, “all property in this country is 

held under the implied obligation that the owner’s use of it shall not be injurious to the 

community. . . .” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491 
8

(1987) (quoting Mugler v. Kansas, 123 U.S. 623, 665 (1887)). The Takings Clause does

“not transform that principle to one that requires compensation whenever the State 

asserts its power to enforce [this obligation].” Id. “And in the case of personal property, by 

reason of the [government’s] traditionally high degree of control over commercial 

dealings, [a property owner] ought to be aware of the possibility that new regulation might 

even render his property economically worthless[.]” Lucas, 505 U.S. at 1027–28. This 

rings even more true as it relates to the ownership of animals which pose unique threats 

to people and may be subject to onerous government regulation. Cf. Nicchia v. New York, 

254 U.S. 228, 230 (1920) (“Property in dogs is of an imperfect or qualified nature and they 

may be subjected to peculiar and drastic police regulations by the state without depriving 

their owners of any federal right.”).

In Andrus, the United States Supreme Court explained that a regulation can 

severely undermine the economic value of personal property and still not rise to the level 

of a taking. 444 U.S. at 66. In that case, the federal government banned sales of all items 

containing parts of an eagle. Id. at 56. As a result, individuals who had lawfully acquired 

artifacts containing eagle parts were unable to sell the artifacts. Id. at 62–63. While this 

was a “significant restriction,” the Court held that this “destruction of one ‘strand’ of the 

bundle” of property rights did not constitute a taking. Id. at 65–66. Rather, the substantial 

state interest in preserving eagles justified the regulation. Id. at 66–68.

Relying on Andrus, the Oklahoma Supreme Court rejected a Takings Clause 

challenge to that state’s cockfighting statute:

Here we have a regulation of personal property that prohibits one use 

thereof. Respondents or others similarly situated retain the rights to possess, 
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sell, trade, donate, devise or use their gamecocks or game fowl, or any 

property related thereto, in any lawful manner or for any lawful purpose. 

Although their ability or opportunity to earn future profit from fighting such 

birds or raising or selling them for fighting may be eliminated, that is a 

“slender reed” upon which to base a takings claim, given their retention of 

full rights to use or sell their birds for other purposes. . . . [G]iven the above 

jurisprudence and in light of the application of judgment, logic and fairness, 

we do not believe the prohibition at issue here can rightfully be considered a 

taking or damaging of property for public use for which compensation is due. 

Instead, the Act under review represents a non-compensable and valid 

exercise of the police power to outlaw one use of property which amounts to 

animal cruelty. 

Edmonson v. Pearce, 91 P.3d 605, 619–20 (Okla. 2004) (footnotes omitted).

We find Pearce persuasive and adopt its reasoning. Section 42.105 affects only 

one very narrow strand of the bundle of property rights. An owner of domestic fowl may 

still own, possess, breed, and sell their property. Further, as many other jurisdictions have 

concluded, § 42.105 is a proper subject for the exercise of the State’s police power in that 

its purpose is to discourage and prohibit the cruel practice of animal fighting.5 See id. at

620; State v. Young, 695 S.W.2d 882, 886 (Mo. 1985); State v. Tabor, 678 S.W.2d 45, 

48 (Tenn. 1984); Peck v. Dunn, 574 P.2d 367, 369 (Utah 1978). 

Finally, Texas has outlawed cockfighting in some manner for almost one hundred 

years. Even if § 42.105 denies an economically viable use of domestic fowl, it is a longknown restriction that would not interfere with a property owner’s investment-backed 

expectations. See Mayhew, 964 S.W.2d at 936 (explaining that existing property 

regulations at the time property is purchased should be considered in determining 

5 In the most recent amendment to the statute, the Legislature extended the scope of § 42.105, 

which was previously limited to persons “engaging cocks in a fight”, by criminalizing “conduct relating to 

cockfighting . . . .” HOUSE COMM. ON CRIM. JURIS., BILL ANALYSIS, Tex. H.B. 043, 82nd Leg., R.S. (2011).

The House’s Bill Analysis noted that cockfighting “is still rampant through the state and is often 

accompanied by gambling, alcohol, drugs, and firearms.” Id. 
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whether a regulation interferes with distinct investment-backed expectations as required 

to show a regulatory taking).

For the foregoing reasons, we conclude as a matter of law that § 42.105 does not 

violate the Takings Clause. See Ex parte Lo, 424 S.W.3d at 14. We overrule Hinds’s third 

issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA

Justice

Publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

24th day of June, 2021.