THE ATTORNEY GENERAL 

OF +KiXAS 

JOHN L. amA, Arrs-r~~.‘lkxAs~ 78711 

.A-- CIIGIIPRIL. 

July 6, 1973 

Honorable Bryan Davis Opinion No. H- 56 

County Attorney, Nacogdoches County 

P. 0. Box 736 Re: Whether the shooting of 

Nacogdoches, Texas 75961 live pigeons as targets only, 

and not for food, is unlawful. 

Dear Mr. Davis: 

You have requested our opinion as to whether the holding of a 

pigeon shoot, in which the birds are released as targets, after first 

having their tail feathers plucked out to effect an erratic mode of 

flight, violates 1374, Vernon’s Texas Penal Code. You state in 

your request that the pigeons used in the “shoot” are not “wild 

pigeons ” defined as game birds under Article 872, V. T. P. C. 

Article 1374 reads: 

“Whoever overdrives, willfully overloads, drives 

when overloaded, overworks, tortures,t orments, 

deprives of necessary sustenance, unnecessarily or 

cruelly beats, or needlessly mutilates or kills any 

animal, or carries any animal in or upon any vehicle, 

or otherwise, in a cruel or inhumane manner, or 

causes or procures the same to be done, or who 

having the charge or custody of any animal unnecessarily 

fails to provide it with proper food, drink, or cruelly 

abandons it, shall be fined not exceeding two hundred 

dollars. As used in this article the word ‘animal’ includes every living dumb creature, and the word 

‘torture’ and ‘cruelly’ includes every act, omission 

or neglect whereby unnecessary or unjustifiable pain 

or suffering is caused, permitted or allowed to continue when there is a reasonable remedy or relief. ” 

(Emphasis added) 

p. 239 
The Honorable Bryan Davis page 2 (H-56) 

c - 

There are no Texas cases in which Article 1374 has been applied to the 

shooting of animals for amusement. By far the greater number of cases 

involving the statute are those growing out of shooting of trespassing 

animals. Such, apparently, were the facts which led to the case of 

Cinadr v. State, 300 S. W. 64 (Tex. 1927) where the defendant was charged 

with, an information which read: “did needlessly kill one hog. ” The 

Court of Criminal Appeals recognizing that there were statutes expressly 

sanctioning the killing of wild animals and fowls for sport and further recognizing that the exercise of judgment by the owner of a domestic animal in 

determining to slaughter the animal was not the proper subject of legislative restriction, held that the language “needlessly . . . kills any animal” 

was too vague to be enforceable and violated Article 1, Section 10 of the 

Texas Constitution. 

The Cinadr opinion however is important in that (1) it apparently 

recognized that birds are animals within the definition of the statute and 

(2) it expresses, by way of dictum, that other offenses defined by the 

statute are not subject to the same criticism. 

The Court said: 

“It is within the power of the State to protect 

animals from brutality or wanton abuse or destruction, 

and to protect the owner of animals against mistreatment as a principle of law thoroughly established 

through the decisions of this and other jurisdictions . . .‘I 

(300 S. W. at 65) 

Eliminating prohibited acts of Article 1374 which obviously do not 

apply to the facts at hand, the basic question remaining is whether it is 

a violation of the Article to remove some of the tail feathers from a pigeon 

and then shoot it in a manner which may or may not result in its immediate 

death. Does this constitute “torturing, ” “tormenting, ” or to “needlessly 

mutilate? ” The Act defines the term torture to include ” . . . every 

act . . . whereby unnecessary or unjustifiable pain or suffering is 

caused,permitted or allowe,d to continue when there is a reasonable 

remedy or relief. ” In common parlance “torture” and “torment” have 

virtually the same meaning, i. e., to cause intense suffering. To mutip. 240 
The Honorable Bryan Davis, page 3 (H-56) 

late means to cut off or permanently destroy a limb or essential part of 

a body or to cut up or alter radically a body so as to make it imperfect. 

We have found no other Texas decision which would help in deciding 

the question presented. The only decisions from other states which we 

have found, such as State v. Bogardus, 4 MO. App. 215 (1877); Commonwealth v. Lewis, 21 A 396 (Pa. 1891) and Waters v. People, 46 P. 112 

(Cal. 1896), are oi l:t:tie a,ssisi?nce. 

It is our opinion that a Texas court if directly faced with the question 

would hold that Article 1374, V. T. P. C., is sufficiently specific and is 

constitutional insofar as it outlaws the torturing, tormenting and needlessly 

mutilating of animals. 

As difficult as it may be to determine the meaning of “torture,” 

“torment, ” and “needlessly mutilate, ” it is even more difficult to determine 

specifically whether a pigeon shoot: is prohibited by the statute. Certainly, 

however, the statute does not aut:horize mutilation of pigeons before killing 

them. 

Whether or not people participating in a particular pigeon shoot 

violate the law ultimately will be a question for jury determination. It 

would be improper for us to pass judgment and to declare them guilty or 

not guilty of a criminal c,harge without a trial on the merits. 

It is our opinion, however, that the facts as described by you in 

your letter would be held sufficient to uphold a conviction ,of violation of 

Article 1374, V. T. P. C.. 

SUMMARY 

- 

Although each case must be determined upon 

it own facts? where the tail feathers 01 pigeons are 

plucked to cause iheir flight: to be erratic, they are 

thrown in the air, shot and left to die, the facts are 

sufficient to support a conviction for torturing, tar-. 

p. 24I 
The Honorable Bryan Davis, page 4 (H-56) 

menting and or needlessly mutilating an animal 

in violation of Article 1374, Vernon’s Texas Penal 

Code. 

Very truly yours, 

APPROVED: 

DAVID M. KENDALL, Cha<rman 

Opinion Committee 

p. 242