Cat Breeder Jim Smith Explains Evils of Texas Puppy Mill Bill In Response to Texas Tribune Article

Audrey White of the Texas Tribune authored this news story concerning the federal lawsuit over the Texas Puppy Mill Bill. The article reports that the Humane Society of the United States and the Texas Humane Legislation Network filed an amicus brief in the suit supporting the Bill.

The story contains a quote from a representative of the Humane Society’s Texas Branch, as well as some quotes from two breeders who are not involved in the lawsuit. Neither of the breeders quoted in the article expressed the due process concerns raised by the plaintiffs in the suit.

With respect to the plaintiffs, the article states, “calls to plaintiffs in the case were not immediately returned.”

Jim Smith, a cat breeder and one of the plaintiffs in the case, posted this response in the comments section of the online article this morning. According to Smith,

I am one of the plaintiffs in the Puppy Mill and Kitten Mill case. I was called by Ms. White and asked for comments, but I told her that because there was legal actions pending, I needed to clear things with my attorney first. He told me that there was no reason why I couldn't address the issues, so I called Ms White back (several times), got no answer, and she never returned my call. I called her back within an hour or two of her call.

Mr. Smith went on to explain his due process concerns, saying,

There are several reasons why this is bad law. First and foremost, even a meth dealer or porn publisher is afforded more rights under Texas Law than a Kitten or Puppy Breeder. The law is written in such a way that agents from the Texas Department of Licensing and Regulations can enter my property, with or without me being present, enter my private residence, confiscate my computer, files or other property, or my animals simply on their own recognizance. They do not need a warrant, and there is no oversight by any actual law enforcement agency or court. Once they seize my animals or property, there is no appeals process developed for me to protest their actions. The TLDC can also employ "Third Party Inspectors", such as members of Animal Rights organizations to do these functions for it.

Smith also hinted that legislation of this nature could eventually effect the equine and ranching industries, stating,

HB 1451 is part of a nationwide push by animal rights organizations to deny us the ability to keep pets, have horses and ranching, rodeos and many other traditional Texas activities because it offends their vegetarian and vegan beliefs. It's their attempt to enforce their personal and religious beliefs on the rest of us.

Horse breeders, what do you think of the new Puppy Mill Bill? I welcome you to post your thoughts and insights in the comments section to this post.

Texas "Puppy Mill Bill" Challenged in Federal Court

The constitutionality of the hotly-contested “Puppy Mill Bill” passed in the 2011 Texas Legislature has been challenged in a federal suit filed in Austin on October 1, 2012.  A copy of the complaint can be downloaded here.

The new law, commonly referred to as the “Puppy Mill Bill”, was passed as HB 1451 and codified as Chapter 802 of the Texas Occupations Code . The title given to the codified act is “The Dog and Cat Breeders Act”. As part of the Act, the Texas legislature charged the Texas Department of Licensing and Regulation with the task of creating a regulatory and licensing scheme for dog and cat breeders in Texas. The rules related to the Act are set forth in Title 16, Texas Administrative Code, Chapter 91.

The plaintiffs in this week’s suit challenging the Act and related rules include Responsible Pet Owners’ Association Texas Outreach Inc.; Teresa Arnett, a Boston Terrier breeder in Rosansky; Sharleen Pelzl, a cat breeder in Dripping Springs; and James Smith, a cat breeder in Georgetown. The plaintiffs are represented by Steven Thornton of the firm of Westerburg & Thornton, P.C. in Dallas.

Could horse breeders be the next target of "Puppy Mill Bill" type legislation?

Included among the plaintiffs’ complaints about the “Puppy Mill Bill” and related rules are the following:

·       The Act allows inspectors to enter breeders’ facilities without a warrant. 

·       The Act allows inspectors to enter the private residence of a breeder without first obtaining a warrant.

·       The Act exempts dogs bred primarily to be used for purposes such as herding livestock, hunting, field trials, and other performance events. But the Act does not give a reason for a disparate treatment of breeders of different types of dogs, nor does it specify whether it is the intent of the breeder or the end purchaser that controls the analysis.

·       The Rules allow applications for breeders’ licenses to be denied with no possibility of appeal.

·       The Rules related to licensure of breeders require the successful completion of a “criminal background check.” However, the Rules do not specify what constitutes successful completion.

Animal cruelty and animal neglect have been illegal in the state of Texas for a long time. Some question why Act was even necessary, while others view the Act as nothing more than a vehicle to allow rescue groups (with the help of the authorities) to enter property of others and seize animals without a warrant. I believe that if such regulations are allowed to stand, it is only a matter of time before the animal welfare lobby will push for similar regulations applicable to horse breeders.

DVM News Magazine and others have expressed reservations about the “unintended consequences” of “puppy mill laws” passed in other states.  And just this morning, some pure bred dogs were abandoned in a rural area near Flower Mound around 1:00 AM. Some have suggested that the “Puppy Mill Bill” is to blame because these new laws are so draconian that no commercial breeder is able to comply with them.

Updates will be posted as this case progresses.

Recap of the 2012 Animal Law Institute

Last Friday, for the fourth or fifth time, I attended the annual Animal Law Institute.  The Institute is a CLE program put on by Animal Law Section of the State Bar of Texas.  It moves around each year, but this year it was at Texas Wesleyan School of Law here in Fort Worth.

You may be wondering, “what is animal law, and is equine law a part of animal law?” I have been practicing equine law for years, and I still don’t really know the answer. According to Wikipedia,

animal law is a combination of statutory and case law in which the nature—legal, social or biological—of nonhuman animals is an important factor. Animal law encompasses companion animals, wildlife, animals used in entertainment and animals raised for food and research. The emerging field of animal law is often analogized to the environmental law movement 30 years ago.

Most of the speakers at the Institutes I have attended in the past have seemed to generally focus on 1) animal rights/welfare issues; and 2) issues related to animal rescues and public shelters. 

My equine law practice, by way of contrast, is primarily focused on business issues. That said, I have advised several equine-related 501(c)(3) nonprofit organizations.

Rick and I at Will Rogers Equestrian Center with two of our animals. 

This year’s Institute covered a lot of animal welfare/rights issues, but it also added an overview of equine law by Dawn Reveley, and another presentation on vet malpractice defense into the mix.   Below is a recap:

  • Will Potter, a journalist from Washington, DC, discussed the Animal Enterprise Terrorism Act. This is a 2006 federal law with which I was not previously familiar. According to Potter, the law was pushed by animal industry groups and corporations to target animal rights protestors by labeling their activities as "terrorism".  Read more about it on Will Potter’s blog, Green is the New Red. To loosely quote Potter’s [very sound] advice to would-be animal rights protestors: “Come up with a plan and get organized before you stage your protest, so people won’t think you’re crazy!” 
  • Don Feare, an attorney from Arlington, Texas, shared some excellent information for attorneys who represent animal rescue groups. Some main points include (equine nonprofits, listen up!) 1) animal welfare groups should incorporate as a nonprofit corporation to limit liability; 2) liability insurance is a necessity, especially if the organization is doing public adoption events; and 3) adoption contracts should make clear when title to the animal passes to the new owner and should be signed by all adult members of the household at which the animal is being placed.
  • Scott Heiser, a Portland-based attorney with the Animal Legal Defense Fund, talked about how his nonprofit organization helps local prosecutors win animal cruelty cases (both through financing and by helping try cases). Heiser discussed the “business records” exception to the hearsay rule, as it applies to veterinary reports in criminal animal abuse cases. In general, vet reports are not admissible in lieu of testimony under the business records exception if the vet report was “prepared specifically for use at trial.”
  • Nicole Paquette, Texas Senior State Director with the Humane Society of the United States (HSUS) in Washington, DC, covered the new laws from 2011 Texas Legislature that the HSUS believes benefit animals. These bills include 1) HB 1451, the “Puppy Mill Bill”--requiring licensing and inspection of dog and cat breeders who maintain 11 or more female breeding animals; 2) HB 1103--“Responsible Pet Owner Classes” required for convicted animal abusers; and 3) HB 2471--the “Good Animal Samaritan Bill”, which limits civil liability of people who render aid to an injured or distressed animal.
  • Dr. Don Ferrill (remember him from this post?) talked about how to successfully defend veterinarians in malpractice and negligence cases. His advice to plaintiffs: “Always pay your vet bill before you sue your vet.”

Watch this website for information on next year's Animal Law Institute.

Multiple Agendas Revealed in Legal Battle over New York Carriage Horse Industry

Most of you have already read about the heated legal battle over the horse-drawn carriage industry in New York City, where some groups have been pushing for decades to outlaw carriage rides. On its face, the battle seems to be about whether or not the industry is inherently cruel or dangerous for the horses. But more recently, some facts have surfaced pointing to other interests and agendas that may be fueling the push to banish the carriage industry from New York.

Emily B. Hager authored a story published last week in the New York Times that delves into underlying interests of some who are attempting to ban carriage rides in New York City. A link to the article can be found here.

One issue raised in the Times article are allegations of foul play related to the ASPCA’s involvement in the efforts to outlaw the horse-drawn carriage industry. According to Ms. Hager’s article, Dr. Pamela Corey (chief equine veterinarian for the ASPCA), said her supervisors pressured her to distort her findings about the death of a carriage horse in order to turn public opinion against the carriage industry. After Dr. Corey spoke out, the ASPCA suspended her. Dr. Corey has since filed a complaint with the state attorney general’s office, in which she states that she had been pressured on several occasions to slant her professional opinion to help achieve a ban.

Ms. Hager also points out that while the ASPCA is one of the groups leading the effort to ban horse-drawn carriages, it is also one of three entities that regulate the carriage industry in New York. 

The ASPCA’s president, Ed Sayres, is also reported in the Times to have teamed up with Stephen Nislick, chief executive of the development company Edison Properties, to develop a plan to replace carriage rides with electric-powered replicas of antique cars. Sayres and Nislick are reported to have started a nonprofit organization, known as NY-Class, that has collected more than 55,000 signatures backing city ordinances that would end the carriage horse industry in New York. NY-Class was allegedly started up through a $400,000 donation from the ASPCA and a contribution from Mr. Nislick.

With respect to these potential conflicts of interest, Ed Sayres is quoted in the Times as saying, “I don’t see it as a conflict. If we don’t bring forward the risk factor that we are observing, then it would be negligent.”

Real estate developers (including Mr. Nislick) are alleged to be involved in the movement to outlaw the carriage industry because they covet the land on the Far West Side where the horses have long been stabled.  

According to Ms. Hager’s article, some carriage owners acknowledge carrying out a campaign to infiltrate the activist groups and secretly record their strategy sessions. In one recording, Mr. Nislick is said to describe efforts to gain the support of city politicians by giving them campaign contributions. 

The carriage industry is reported to have filed its own complaints with the city and state agencies against the ASPCA and NY-Class.

The Times article includes some stats on drivers’ earnings, which reportedly range from $40,000 to $100,000 annually, depending primarily on whether they own their horses, whether they work the day or night shift, and how bad the weather and economy are.  If you know how much it costs to live in Manhattan, you know that even $100,000 per year before taxes can be hard to live on there. One would think that the last thing the carriage drivers would want to do is abuse or mistreat their horses if their livelihood depended upon them.

These latest allegations are definitely thought-provoking.  One must wonder whether those who donate money to the ASPCA hoping to fund food, medicine, and shelter for unwanted animals know that the Society has spent at least $400,000 on this political campaign.

Also, should the ASPCA still be one of the regulatory bodies governing the NY carriage industry, given the conflicts and allegations that have now arisen?

Finally, what would happen to the horses if those pushing for a ban were successful? According to Dr. Nena Winand, an equine veterinarian from upstate New York who is a member of the American Association of Equine Practitioners, “If we banned the carriage horse industry tomorrow, they would go straight to slaughter. There is no big field out there, there is no one to pay the bills.”

As discussed in this prior post, mistreatment of or cruelty to horses is already illegal in State of New York. Given these latest allegations, this fact does cause one to ponder whether animal welfare is the real impetus behind the movement to outlaw the carriage industry in New York City.

Can Jaci Rae Jackson Be Hanged for Horse Theft?

We’ve all heard accounts that horse thieves have, in the past, been sentenced to death by courts in Texas or legally hanged by vigilantes.  The demise of Jake and his compatriots in the movie Lonesome Dove is a depiction of one such vigilante hanging in Texas.  All kidding aside, verifiable accounts of capital punishment for horse theft (both after a trial and by vigilantes) come not only from Texas, but also from other U.S. states and even other from other countries.  

Photo: Per Wikipedia, this photo is of a horse thief's hanging in Oregon, circa 1900 [Source

According to a BBC news story from May 2011, some folks in Scotland even reenacted the events surrounding the 1811 hanging of a fellow named George Watson for horse theft.  Watson was described in the BBC article as a “tinker-traveller” who made off with a “distinctive grey Clydesdale mare” belonging to a man who offered shelter to Watson and his family.  Watson is alleged to be the last man hanged in Scotland for horse theft.

Urban legend has it that horse thieves can still be hanged or sentenced to death in Texas.  But unfortunately for those who still wish to see horse thieves put to death, horse thievery is no longer a capital felony in Texas.  Under Texas Penal Code Section 31.03(e), horse theft is a third-degree felony (2 to 10 years in prison) if the value of the horses stolen in a single transaction is less than $100,000.  Horse theft in Texas is punishable as a second degree felony (2 to 20 years in prison) if the horses stolen in a single transaction are worth $100,000 to $199,999, and a first degree felony (5 to 99 years in prison) if the horses stolen in a single transaction are worth $200,000 or more.  See also Chapter 12 of the Texas Penal Code

Pursuant to the U.S. Supreme Court’s 2008 opinion in Kennedy v. Louisiana, the power of any U.S. state to impose the death penalty against an individual for committing a crime that did not result in the death of a human victim is now limited to crimes against the state (i.e., espionage, treason).

But vigilante justice for horse thieves is not completely dead in Texas.  As discussed previously, there are still circumstances under which a person in Texas could legally shoot or otherwise kill a horse thief if the person, for example, is a witness to horse theft in progress and the circumstances warrant the use of lethal force.  See these prior posts:

When is it Legal to Shoot a Trespasser?

How to Deal With Trespassers on Your Property

Facts revealed in the recent Jaci Rae Jackson case may cause some to wish capital punishment were still available for horse theft.  As you have probably read by now, Jackson is a now 19 year-old Southern Arkansas University student who was charged this week with a number of felonies in Arkansas and Oklahoma for the theft of 5 college rodeo horses and a horse trailer.  Jackson cannot (if convicted) be sentenced to death for her actions.  Ms. Jackson has also been charged with related post-theft crimes which, according to reports, include allegedly participating in the killing and dismemberment of one stolen horse, and tying the 4 others to trees without sufficient food or water.  Ms. Jackson’s arraignment is expected to occur on December 15, 2011.

Photo: Jaci Rae Jackson [Source

Apropos, how can we all take steps to prevent the theft of our horses and trailers and make sure thieves are brought to justice?  Dr. Pete Gibbs, Texas A & M University professor and Extension Horse Specialist, published an informative article entitled “15 Steps to Minimizing Theft of Horses and Equipment”, which can be downloaded here.  

New York City Council Passes Regulations Affecting Carriage Industry

In 2008, I posted Should the Carriage Ride Industry in New York City be Banned? after discussing the topic casually with my brother-in-law, Adam Rowe.  The post prompted a lively discussion from both sides. Some of the comments the post received were of such a "heated" nature that I could not publish them.  This is undoubtedly an issue about which both sides are extremely passionate.

Last week, the Huffington Post reported that New York's City Council has passed new regulations requiring carriage horses to have larger stalls, five weeks off per year, and blankets in cold and wet weather. Safety requirements for the carriages are also included in the new rules, requiring carriages to have manure-catching devices, emergency brakes, and reflective signs.

According to the Huffington Post report, Mayor Bloomberg supports the bill and is expected to sign it.

These new rules may act as a compromise for animal welfare advocates, who have campaigned for years to shut down the Central Park carriage industry.

Advocates of the carriage ride industry have argued that the horses are treated well, and that the horses will be abandoned or sent out of the country to be slaughtered if the industry is shut down.

The new rules are expected to increase the cost of carriage rides from $34 for the first half-hour to $50 for the first 20 minutes.

I welcome you to share your thoughts on the new rules and how they might affect the well-being of the carriage horses.

Should the Carriage Ride Industry in New York City be Banned?

My brother-in-law, Adam Rowe, recently asked me what I thought about the ASPCA's and other activist groups' recent attempts to pass legislation that would ban horse-drawn carriage rides in New York City.  The activists claim that the industry as whole should be banned because the horses are allegedly overworked and deprived of proper food, water, and shelter.  If you go to the Carriage Horses-NYC blog, a site maintained by one such activist group, you see a woman standing next to a horse in harness and holding a heart-shaped sign bearing the slogan, "Give These Horses Their Freedom."

My first reaction to the activists' cause was, assuming at least some carriage operators treat their horses well, why would they want to ban the trade as a whole? The draft horses have a job and are being put to use, which in my mind is preferable to the dubious fate of the "unwanted horse", which many of these horses might become if they cannot be used for surrey rides.  Due to the recent ban on horse slaughter in the U.S., many in the horse industry predict that unwanted horses will be now be euthanized and disposed of, or shipped to Mexico or Canada for slaughter.  See USA Today article on subject.  The activists (and many other horse lovers, myself included) would probably prefer that the carriage horses be released into vast green pastures to run free for the rest of their lives (which can be 30 years or longer).  However, the activists trying to pass this legislation seem short on ideas on who will take care of the horses once they are "given their freedom."

Another thought is that the mistreatment of carriage horses is already illegal in New York.  According to New York law (McKinney's Agriculture & Markets Law Sect. 353), a carriage driver is guilty of a Class A misdemeanor if he "overdrives, overloads, tortures or cruelly beats" a horse or allows another to do so. He is also liable if he deprives a horse of "necessary sustenance, food or drink," or neglects or refuses to furnish a horse such "sustenance, food, or drink".  I assume that if a particular carriage driver is charged under this criminal statute, his business will not flourish for long. 

Perhaps the most humane thing the activists can do is involve local law enforcement in the investigation of the carriage drivers whom they suspect are guilty of animal cruelty, and let the carriage operators who properly treat their horses continue to do business in peace.