|Gonzalez v. South Texas Veterinary Associates, Inc.||2013 WL 6729873 (Tex. App. Dec. 19, 2013), review denied (May 16, 2014)||Plaintiff acquired an indoor/outdoor cat with an unknown medical and vaccination history. Plaintiff took cat to defendant for treatment and the cat received a vaccination. The cat soon developed a golf-ball-sized mass that contained a quarter-sized ulceration which was draining “matter” on the cat's right rear leg. When plaintiff returned the cat to the defendant, defendant diagnosed the cat with an infection, prescribed an antibiotic for treatment, and instructed Gonzalez to return if the cat's symptoms did not improve. When the cat's symptoms did not improve, plaintiff took the cat to another veterinarian who diagnosed the cat with vaccine-associated sarcoma. The cat had to be eventually euthanized. Acting pro se, the plaintiff filed suit, alleging that defendant failed to: (1) inform her of vaccine-associated sarcoma risk; (2) adhere to feline vaccination protocols; and (3) properly diagnose vaccine-associated sarcoma in the cat, which resulted in the loss of her life. On appeal, plaintiff asserted that the trial court erred by granting defendant's no-evidence and traditional motions for summary judgment. After examining the evidence in the light most favorable to plaintiff and disregarding all contrary evidence and inferences, the court concluded that the plaintiff brought forth more than a scintilla of probative evidence establishing the relevant standard of care to prove her malpractice claims. The trial court, therefore, erred by granting the no-evidence summary judgment. On the traditional summary judgment claim, the court held that that the defendant's evidence did not conclusively prove that a veterinarian complied with the applicable standard of care in light of another veterinarian's report to the contrary. The trial court, therefore, erred by granting defendant's traditional motion for summary judgment. The case was reversed and remanded.|
|Garza v. State||2007 Tex. App. LEXIS 8953||Carrollton, Texas municipal code prohibited the keeping of more than three pets on property within the city limits. Yvette Garza, a member of an animal rescue organization, challenged the determination that she had violated the city code by keeping more than three dogs. She argued that the code was unconstitutionally vague and that her actions were necessary. The court held that although the term "keep" was not defined in the statute, a person of ordinary intelligence would understand the law because "keep" has a common sense meaning. Garza also failed to produce evidence proving when the scheduled euthanasia of the dogs was going to occur, she therefore failed to establish the elements of her necessity defense.|
|Galindo v. State||--- S.W.3d ----, 2018 WL 4128054 (Tex. App. Aug. 30, 2018)||Appellant Galindo pleaded guilty to cruelty to nonlivestock animals and a deadly-weapon allegation from the indictment. The trial court accepted his plea, found him guilty, and sentenced him to five years in prison. The facts stem from an incident where Galindo grabbed and then stabbed a dog with a kitchen knife. The indictment indicated that Galindo also used and exhibited a deadly weapon (a knife) during both the commission of the offense and flight from the offense. On appeal, Galindo argues that the deadly-weapon finding is legally insufficient because the weapon was used against a "nonhuman." Appellant relies on the recent decision of Prichard v. State, 533 S.W.3d 315 (Tex. Crim. App. 2017), in which the Texas Court of Appeals held that a deadly-weapon finding is legally insufficient where the sole recipient of the use or exhibition of the deadly weapon is a nonhuman. The court here found the facts distinguishable from Prichard. The court noted that Prichard left open the possibility that a deadly-weapons finding could occur when the weapon was used or exhibited against a human during the commission of an offense against an animal. Here, the evidence introduced at defendant's guilty plea and testimony from sentencing and in the PSIR are sufficient to support the trial court's finding on the deadly-weapons plea (e.g., the PSI and defense counsel stated that Galindo first threatened his girlfriend with the knife and then cut the animal in front of his girlfriend and her son). The judgment of the trial court was affirmed.|
|Gabriel v. Lovewell||164 S.W.3d 835 (Texas, 2005)||
A Texas horse owner brought action against horse farm for negligence and breach of implied warranty in connection with the death of a horse in care of horse farm. On appeal of a decision in favor of the horse owner, the Court of Appeals held that by asking veterinarian if veterinarian told the horse owner that the horse died because it was not brought to veterinary clinic soon enough, the horse farm opened the door, and thus, the previously-rejected hearsay testimony regarding horse owner's conversation with veterinarian was admissible for limited purpose of impeaching veterinarian's testimony. Thus, the evidence was legally and factually sufficient to support the jury's verdict.
|Edmonds v. Cailloux||2006 WL 398033 (Tex.App.-San Antonio) (Not Reported in S.W.3d)||
An in-home caretaker of a sick, elderly woman sued the woman, her trust, and her son after the son’s dog knocked her down causing injury. The court of appeals remanded the case because it found a genuine issue as to whether the dog had dangerous propensities and whether the son knew of the dog’s dangerous propensities to justify strict liability. The court did, however, affirm the order of summary judgment as to the negligence claim, where the son was not the caretaker’s employer and thus did not owe her a duty to exercise reasonable care.
|Downing v. Gully, P.C.||915 S.W.2d 181 (Tex. App. 1996)||
Appellant dog owners challenged the decision of the County Court at Law No. 2 of Tarrant County (Texas), which granted summary judgment in favor of appellee veterinary clinic in appellants' negligence, misrepresentation, and Deceptive Trade Practices Act claims. The court affirmed the grant of summary judgment in favor of appellee veterinary clinic because appellee's veterinarians provided affidavits that were sufficiently factually specific, describing experience, qualifications, and a detailed account of the treatment, so that appellee negated the element of the breach of the standard of care, and because Deceptive Trade Practice Act claims did not apply to state licensed veterinarians.
|Dodge v. Durdin||187 S.W.3d 523 (Tex. App.-Hous. (1 Dist.), 2005)||
Employee brought a negligence action against employer for injuries suffered when administering medicine to an untamed horse. District Court granted summary judgment stating that the plaintiff was considered a "participant" under the Equine Act. Plaintiff appealed. Court of Appeals reversed and remanded the case stating that the Equine Act did not apply because the Act covered consumers, not employees.
|Dixon v. State||455 S.W.3d 669 (Tex. App. 2014), petition for discretionary review refused (Apr. 29, 2015)||An owner of a non-profit cat sanctuary, which housed over 200 cats taken care of by one employee, was convicted by a jury of four counts of non-livestock animal cruelty. The trial court placed the owner under community supervision for five years' on each charge, to be served concurrently. In her first issue on appeal, the owner contended the evidence was legally insufficient to support her convictions. Based on evidence that the owner only had one employee to take care of the cats, however, the Texas court of appeals overruled this issue. In her second issue on appeal, the owner contended that the trial court erred by overruling her motion to dismiss the indictments where the State alleged a felony by commission of elements defined as a misdemeanor under the animal cruelty statute. On this issue, the court stated that it was true that the State had to prove that appellant failed to provide food, water, or care to the cats, but it also had to prove death or serious bodily injury to the cat that was committed in a cruel manner, i.e., by causing unjustified or unwarranted pain or suffering. In other words, the failure to provide food, water, or care is the manner and means by which appellant killed the cats, causing them unjustified pain or suffering, which raised the charge from a misdemeanor to a felony. The second issue was therefore affirmed. The appeals court also overruled the owner’s other issues and thereby affirmed the lower court’s ruling.|
|Cross v. State||646 S.W.2d 514 (Tex. App. 1982).||
"Necessary food" in the animal cruelty statute means food sufficient in both quantity and quality to sustain the animal in question.
|Cottongame v. State||2014 WL 3536801 (Tex. App. 2014), unpublished||Despite an ordinance restricting the number of cats a person can own to three unless a permit was obtained, an officer decided not to enforce the ordinance against the appellant because she was helping with the feral-cat problem in the city and because “she was ... attempting to bring into compliance [her] animal rescue.” When the officer left his job, however, a neighbor complained and an investigation took place. The investigating officer noted everything in the house was covered in cat litter, there was no carpet in the home, and cat urine was on the living-room floor. The smell of cat urine and feces also sickened the officer to the point that he had to leave the house to get fresh air. The State filed a complaint alleging Appellant's violation of the ordinance. A jury found Appellant guilty of the offense as alleged in the complaint and assessed her punishment at $75 plus court costs. Appellant appealed from her conviction for violating a city ordinance regarding the number of animals that may be kept without a permit. In her first issue, the appellant asserted that her conviction violated the Privileges or Immunities Clause of the Fourteenth Amendment because the city “selectively enforced its purported ordinance that prohibits any person from having possession of more than three cats without a permit.” The court, however, found that there was no evidence before the trial court indicating that appellant was singled out for enforcement or that her selection for enforcement was based on anything other than a valid citizen complaint. In her second issue, the appellant argued that the evidence was insufficient to support her conviction. The court, however, found that the evidence was sufficient to support the jury's finding that the appellant was in violation of the ordinance. The lower court’s decision was therefore affirmed.|
|City of Richardson v. Responsible Dog Owners of Texas||794 S.W.2d 17 (Tex. 1990).||
City's animal control ordinance banning the keeping of pit bulls was not preempted by state Penal Code provisions governing the keeping of vicious dogs.
|City of La Marque v. Braskey||216 S.W.3d 861 (Tex. Ct. App. 2007)||
A city's ordinance did not allow a kennel, defined as a place containing more than four dogs and cats, to be operated within 100 feet of a residence, school, or church. A woman kept as many as 100 cats at a time in a shelter within 100 feet of three homes, and she was criminally charged under the ordinance. The court found that the ordinance did not violate the plaintiff's constitutional rights because there was no right to use her property in any manner that she chose.
|City of Houston v. Levingston||221 S.W.3d 204 (Tx.App.-Hous.(1 Dist.) 2006)||
This opinion substitutes City of Houston v. Levingston, 2006 WL 241127 (Tex.App.-Hous. (1 Dist.)), which is withdrawn.
|City of Houston v. Levingston||Not Reported in S.W.3d, 2006 WL 241127 (Tex.App.-Hous. (1 Dist.))||
A city veterinarian who worked for the Bureau of Animal Regulation and Care (BARC) brought an action against the city, arguing that he was wrongfully terminated under the Whistleblower’s Act. The vet contended that he reported several instances of abuses by BARC employees to the division manager. In upholding the trial court’s decision to award Levingston over $600,000 in damages, the appellate court ruled the evidence was sufficient to support a finding that the veterinarian was terminated due to his report . Contrary to the city’s assertion, the court held that BARC was an appropriate law enforcement authority under the Act to report violations of section 42.09 of the Texas Penal Code committed by BARC employees. Opinion Withdrawn and Superseded on Rehearing by City of Houston v. Levingston , 221 S.W.3d 204 (Tex. App., 2006).
|City of Garland v. White||368 S.W.2d 12 (Tex. Civ. App. 1963).||
Police officers were trespassers and could be held civilly liable for damages when they entered a dog owner's property with the intent to unlawfully kill the dog. Reports had been made that the dog was attacking other animals but because the attacks were not imminent, in progress, or recent, the killing of the dog was not lawful.
|Chase v. State||448 S.W.3d 6 (Tex. Crim. App. 2014)||Appellant and his wife were walking their two dogs when two neighbor dogs attacked the group. After the attack, appellant slashed the attacking dog's throat with a knife, which resulted in the dog's death. Appellant was then charged with and convicted of cruelty to non-livestock animals under Texas law. The appellant appealed to the Texas Court of Appeals and the case was reversed and remanded. The State filed a petition for discretionary review with the Court of Criminal Appeals. The issue before that court was whether § 822.013(a) of the Texas Health and Safety Code, a non-penal code, provided a defense to criminal prosecution. The court held that § 822.013(a)—which allows an attacked animal's owner or a person witnessing an attack to kill a dog that is attacking, is about to attack, or has recently attacked a domestic animal—is a defense against cruelty to non-livestock animals. The judgment of the Court of Appeals was therefore affirmed. The dissenting opinion disagreed. The dissent argued the goal of this statute was to protect farmers and ranchers against the loss of their livelihood by allowing them to protect their livestock from attacking dogs without fear of liability to the dog's owner, not to allow individuals in residential neighborhoods to kill a neighbor's dog after an attack with criminal impunity.|
|Chambers v. Justice Court Precinct One||95 S.W.3d 874 (Tex.App.-Dallas, 2006)||
In this Texas case, a justice court divested an animal owner of over 100 animals and ordered that the animals be given to a nonprofit organization. The owner sought review of the forfeiture in district court. The district court subsequently dismissed appellant's suit for lack of jurisdiction. Under the Texas Code, an owner may only appeal if the justice court orders the animal to be sold at a public auction. Thus, the Court of Appeals held that the statute limiting right of appeal in animal forfeiture cases precluded animal owner from appealing the justice court order.
|Celinski v. State||911 S.W.2d 177 (Tex. App. 1995).||
Criminal conviction of defendant who tortured cats by poisoning them and burning them in microwave oven. Conviction was sustained by circumstantial evidence of cruelty and torture.
|Bushnell v. Mott||254 S.W.3d 451 (Tex.,2008)||
In this Texas case, the plaintiff (Bushnell) brought an action against the defendant (Mott) for her injuries sustained when defendant's dogs attacked plaintiff. The district court granted summary judgment to defendant. The Texas Supreme Court reversed, and held that the owner of a dog not known to be vicious owes a duty to attempt to stop the dog from attacking a person after the attack has begun, and Mott's behavior after the attack had begun raises an issue of material fact whether Mott failed to exercise ordinary care over her dogs.
|Bueckner v. Hamel||886 S.W.2d 368 (Tex. App. 1994).||
Texas law allows persons to kill without liability dogs that are attacking domestic animals. However, the attack must be in progress, imminent, or recent. This defense does not apply to the killing of dogs that were chasing deer or non-domestic animals.
|Bormaster v. Henderson||624 S.W.2d 655 (Tx. 1981)||
This appeal arises out of a suit brought under the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) and for breach of expressed and implied warranties after plaintiff purchased an allegedly defective umbrella cockatoo from a pet shop. Prior to purchase, appellee-seller stated the cockatoo was healthy and gave the appellant an "Official Health Certificate for Animals and Fowl" with a 72-hour expressed warranty on the health of the cockatoo. Two weeks later the cockatoo began showing signs of poor health so appellant took it to a veterinarian (it later died). This court concluded the trial court had sufficient rebuttal evidence upon which to hold appellant failed to prove the cockatoo's death by a preponderance of the evidence. Further, this court agreed with the trial court's finding that appellant failed to prove by a preponderance of the evidence that the appellees committed any false, misleading or deceptive acts under the DTPA, or breached any expressed or implied warranties.
|Bell v. State||761 S.W.2d 847 (Tex. App. 1988)||
Defendant convicted of cruelty to animals by knowingly and intentionally torturing a puppy by amputating its ears without anesthetic or antibiotics. Defense that "veterinarians charge too much" was ineffective.
|Batra v. Clark||110 S.W.3d 126 (Tex.App.-Houston [1 Dist.],2003)||
In this Texas case, the appellant-landlord appealed a verdict that found him negligent for injuries suffered by a child visiting a tenant's residence. The lower court found the tenant and landlord each 50% liable for the girl's injuries. The Court of Appeals, in an issue of first impression, if a landlord has actual knowledge of an animal's dangerous propensities and presence on the leased property, and has the ability to control the premises, he or she owes a duty of ordinary care to third parties who are injured by this animal. In the present facts, the court found that Bantra had no duty of care because there was no evidence showing that Batra either saw the dog and knew that it was a potentially vicious animal or identified the dog's bark as the bark of a potentially vicious animal. The judgment was reversed.
|Augillard v. Madura||257 S.W.3d 494 (Tex.App.-Austin,2008)||
This appeal arises from a suit for conversion filed by Shalanda Augillard alleging that Tiffany Madura and Richard Toro wrongfully exercised dominion and control over Augillard's black cocker spaniel, Jazz, who was recovered from New Orleans in the wake of the Hurricane Katrina. The central issue at trial and the only disputed issue on appeal is whether Augillard's dog, Jazz, and the dog that Madura adopted from New Orleans after Hurricane Katrina, Hope, are in fact the same dog. Augillard asserts on appeal that the trial court erred in disregarding conclusive evidence, including forensic DNA analysis, establishing that Hope and Jazz are the same dog.
|Arrington v. Arrington||613 S.W.2d 565 (Tex. Civ. App. 1981)||
A divorcing couple agreed to visitation of their dog, which the trial court incorporated into the divorce decree, appointing wife as the dog's managing conservator. Husband appealed because he had not been appointed managing conservator; the appellate court stated that dogs are personal property, and the office of managing conservator had been created for human children. While the court held that dogs are personal property under the law, it also stated that visitation of dogs should be allowed.
|Amos v. State||478 S.W.3d 764 (Tex. App. 2015), petition for discretionary review refused (Nov. 18, 2015)||A jury found appellant guilty of the offense of cruelty to a nonlivestock animal after he beat a Shih Tzu to death with a broom. After finding an enhancement paragraph true, the jury assessed Appellant's punishment at thirty-one months’ confinement. Appellant asserted five issues on this appeal: (1) the admission of a State's witness's recorded statement to the police, which the court overruled because the evidence was received without objection; (2) the denial of his motion to quash the indictment for failing to allege an offense, which the court overruled because the indictment tracked the statutory language; (3) the denial of six of his challenges for cause, which the court overruled because the venire members gave the defense counsel contradictory answers meaning the trial court could not abuse its discretion in refusing to excuse a juror; (4) the denial of his objection to the charge, which the court overruled because the jury charge tracked the statute’s language; and (5) the denial of his motion to suppress the dog’s necropsy, which the court overruled because the appellant had no intention of reclaiming the dog's body or her ashes and thereby relinquished his interest in them such that he could no longer retain a reasonable expectation of privacy and lacked standing to contest the reasonableness of any search. The lower court’s decision was therefore affirmed.|