# THE ATTORNEY GENERAL OF +KiXAS JOHNL.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 towhether the holding of a pigeon shoot, inwhich 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 inthe “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 ofany animal unnecessarily fails toprovide itwith proper food, drink, or cruelly abandons it, shall be fined not exceeding two hundred dollars. As used inthis 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. 239The Honorable Bryan Davis page 2 (H-56) c -

There are no Texas cases inwhich Article 1374has been applied to the shooting ofanimals 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, 300S.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 ofwild animals andfowls for sport and further recognizing that the exercise ofjudgment by the owner ofa 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 10ofthe Texas Constitution. The Cinadr opinion however is important inthat (1)it apparently recognized that birds are animals within the definition ofthe 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 ofthe State to protect animals from brutality or wanton abuse or destruction, and to protect the owner ofanimals against mistreatment as aprinciple of law thoroughly established through the decisions ofthis and other jurisdictions
. . .‘I (300 S.W. at 65) Eliminating prohibited acts ofArticle 1374which obviously do not apply to the facts at hand, the basic question remaining is whether it is aviolation ofthe Article to remove some ofthe tail feathers from apigeon 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. 240The Honorable Bryan Davis, page 3 (H-56)

late means to **cut** off or permanently destroy a limb or essential part of abody or to cut upor alter radically abody 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, 4MO.App. 215(1877); Commonwealth v. Lewis, 21A 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 ofanimals. 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 ofpigeons before killing them. Whether or not people participating in aparticular pigeon shoot violate the law ultimately will be aquestion for jury determination. It would be improper for us to pass judgment and to declare them guilty or not guilty ofa criminal c,harge without atrial onthe merits. It is our opinion, however, that the facts as described byyou in your letter would be held sufficient to uphold aconviction ,ofviolation of Article 1374, V. T. P. C.. SUMMARY - Although each case must be determined upon it own facts? where the tail feathers 01pigeons are plucked to **cause** iheir flight: to be erratic, they are thrown in the air, shot andleft to die, the facts are sufficient to support a conviction for torturing, tar-.

p. 24IThe Honorable Bryan Davis, page 4 (H-56)
menting and or needlessly mutilating an animal in violation ofArticle 1374, Vernon’s Texas Penal Code. Very truly yours,

APPROVED:

DAVID M. KENDALL, Cha<rman Opinion Committee

p. 242