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Fast Fact: Texas Anti-Cruelty Law Protects Animals Regardless of Ownership.

As far back as 1870, the Texas Supreme Court ruled that Texas’s anti-cruelty law was “intended solely for the protection of the animal without reference to the owner.” State v. Brocker, 32 Tex. 611.

For over a century, that law contained no mention of ownership. This is consistent with the past and present laws of other states. However, in 1973, the Texas legislature injected an ownership concept into the anti-cruelty offense, which it then essentially removed in its broad definition of “owner”—this was the law at issue in the Galveston trial.

The Texas legislature recently rewrote this cumbersome 1973 law. As of September 1, 2007, Texas law once again has straightforward anti-cruelty protections which specifically apply to “any stray or feral cat,” whether owned or not.

Texas Anti-Cruelty Law

The law discussed here is no longer in effect. The Texas legislature substantially rewrote the Texas anti-cruelty law after the defendant was indicted, but the new law applies only to future cases. 

The defendant in the Galveston cruelty trial was indicted under a law that prohibits killing a cat “belonging to another.” Yet the cat killed is alleged to have been stray or feral, and thus not a “pet” who would fall within the common concept of ownership. With only this information, it would appear that the law at issue would not apply to the facts of this case. But, in fact, it does. It applies because the Texas Penal Code has an unconventionally broad definition of “owner.”

To understand the law at issue in the Galveston trial, begin with the text of the law that defines the cruelty offense. It reads:

a person commits an offense if the person intentionally or knowingly…kills...an animal…belonging to another without legal authority or the owner’s effective consent. Tex. Penal Code Ann. § 42.09(a)(5) (Vernon 2006). 

This offense must be read in conjunction with the general definitions section of Texas criminal code. That section defines “owner” as:

a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Tex. Penal Code Ann. § 1.07(a)(35) (Vernon 2006). (Emphasis added.) 

It then defines “possession” as:

actual care, custody, control, or management. Tex. Penal Code Ann. § 1.07(a)(39) (Vernon 2006). 

In another case, the Texas Court of Criminal Appeals read these definitions together and concluded that “any person who has a greater right to the actual care, custody, control, or management of the property than the defendant can be alleged as the ‘owner.’” Alexander v. State, 753 S.W.2d 390, 392(1988). The appellate court pointed out that “contrary to one's common conception of ownership…a person, while having no rights to actually take property, can legally be deemed to have ‘ownership.’…While such a conclusion may seem paradoxical, it is the statutory law.” Id. at 392 n.1. 

What does this mean for the Galveston trial? As long as a person is found to have had “a greater right to the actual care, custody, control, or management” of the cat than the defendant, an offense will have been committed within the meaning of the relevant section of Texas law. In this case, the person with a greater right to the cat killed is John Newland, who fed and cared for the cat who was killed.

Texas Anti-Cruelty Law - Past and Present

What the Law Was:

42.09. Cruelty to Animals

      (a) A person commits an offense if the person intentionally or knowingly:

                 (1) tortures an animal;

                 (2) fails unreasonably to provide necessary food, care, or shelter for an animal in the person’s

                       custody;

                 (3)abandons unreasonably an animal in the person’s custody;

                 (4) transports or confines an animal in a cruel manner;

                 (5) kills, seriously injures, or administers poison to an animal, other than cattle, horses, sheep,

                      swine, or goats, belonging to another without legal authority or the owner’s effective

                      consent...

What the Law Is Now: 

Sec. 42.092(a). Cruelty to Nonlivestock Animals

[Definitions]

     (a) In this section:...

                (2) “Animal” means a domesticated living creature, including any stray or feral cat or dog, and

                       a wild living creature previously captured....

                (4) “Custody” includes responsibility for the health, safety, and welfare of an animal subject to

                       the person’s care and control, regardless of ownership of the animal....

[Offense]

     (b) A person commits an offense if the person intentionally, knowingly, or recklessly:

                (1) tortures an animal or in a cruel manner kills or causes serious bodily injury to an animal...