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.”
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
is 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.
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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.
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