* .
The Attorney General of Texas
March 24, 1980
Honorable Bill Stubblefield Opinion No. m-154
Williamson County Attorney
Georgetown, Texas 78626 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 is about to make such attack on any sheep,
goats, calves, and/or other domestic animals and
fowls, may be killed by anyone present and witnessing
or having knowledge of such attack and without
liability in dsmsge to the owner of such dog. . . .
Sec. 3. You wish to know whether this provision violates constitutional
protections sgainst taking of property without due pmcess of law.
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. New Orleans & C. R. Co., 166 U.S. 698 (1897); Cannon v. City
of Dallas, 263 S.W.2d 288 (Tex. Civ. App. - El Paso 1953, writ rePd n.r.e.).
A vicious dog which endangers the safety of property 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 a number of jurisdictions. A Colorado 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. 495
Honorable 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 a statute 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 or poultry.
96 A.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, 290 P.2d 742 (Id 1955), there was “no
contention that the dogs were tracking, chasing, molesting or worrying deer or had the
habit of so doing.l’ -Id at 743. The court held that a legislative declaration
that a dog running at large in territory inhabited by deer is a public
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 on constitutional 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 due process, we believe 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 dog lovers, particularly in rural areas, and
article 192-3, V.T.C.S., cannot of course be implemented in the absence of an 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 on the law’s significance.
The Connecticut court said that
recent authority tends toward the full recognition of property
rights in dogs as in other domestic animals.
Saucy, sllpra. at 228. The New Jersey court indicated that
P. 496
- .
Honorable Bill Stubblefield - Page Three (NW-1541
opinions may well differ as to the equities of a particular 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’s life
continues to be more haxardous in rural than in urban territory.
Evidently the clash is between the economic and the aesthetic. We
may sympathize with the aesthetic, but positive law must controL
96 P.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 of substantial economic importance, it is available 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., is not unconstitutional.
e
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
P. 49-l
Honorable Bill Stubblefield - Page Four (MW-154 1
Walter Davis
Susan Garrison
Rick Gilpin
Eva Loutzenhiser
Bruce Youngblood
P. 498
Untitled Texas Attorney General Opinion
Combined Opinion