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.

Property of Convict's Ex-Wife Not Subject to Execution on Andalusian Breeder's Judgment

Are you thinking about buying a ranch through an informal seller finance deal? If so, beware.  Andalusian breeder Rancho Mi Hacienda and owner Gilda Arana learned the hard way the pitfalls of doing this type of deal “on the fly”.

Rancho thought it had an enforceable written agreement whereby Coy Lynn Owens and his wife Linda agreed to sell Rancho 126 acres of land in Hopkins County, Texas. After all, Rancho did have a letter signed by Coy Lynn memorializing the parties’ verbal agreement concerning the ranch sale. 

In reliance, Rancho transported its seventy-three Andalusian horses from California to Texas and moved them onto the property. Further, Rancho paid Coy Lynn $25,000 and gave the Owenses’ daughter an Andalusian horse of her choosing. Rancho also expended substantial sums on a log cabin, shelter for the horses, and utilities for the premises. It was Rancho’s understanding that the $25k and the horse constituted the down payment, and that an additional $200,000 was to be paid to the Owenses at the end of a five year term.

Photo:  a very majestic Andalusian mare

Around the time Rancho took possession of the property, Coy Lynn Owens went to federal prison for mail fraud. Linda filed for divorce soon after Coy Lynn was incarcerated. In an agreed divorce decree entered by the divorce court, Linda was awarded the realty in question and Coy Lynn was divested of any title to it. 

Shortly after the divorce decree was entered, Rancho sued Coy Lynn, Linda, and L&L Investments (a holding company) seeking, among other things, specific performance of the ranch sale agreement, and damages related to the horses such as vet bills, the cost of five horses who died, and lost earnings for one year’s breeding season.

Rancho had Coy Lynn served with the lawsuit at the prison. When Coy Lynn did not file an answer, Rancho took a default judgment against Coy Lynn and nonsuited Linda and L&L Investments.  After the jump, you'll see why this was a costly mistake.

Rancho (apparently still in possession of the property) later tried to levy execution on the 126-acre tract to satisfy its judgment against Coy Lynn. In response, Linda obtained a judgment from a JP Court ordering Rancho evicted from the property.

Linda also filed suit in district court against Rancho seeking a declaratory judgment that, among other things, Linda was the sole owner of the property and that it was not subject to execution. The trial court and the Texarkana Court of Appeals agreed with Linda on these points.  The Court of Appeals held that because Rancho’s suit was filed after the divorce decree divested Coy Lynn of all interest in the property, it was no longer community property subject to execution on a judgment against Coy Lynn alone. 

In hindsight, Rancho probably realized that nonsuiting Linda was a terrible idea.  According to the Court:

Although Rancho’s suit originally included [Linda] as a defendant, it made the choice not to pursue an action against [Linda] and filed a nonsuit as it pertained to her, electing to pursue judgment only against [Coy Lynn], who was apparently perceived to be the low-hanging fruit.

Case informationRancho Mi Hacienda v. Bryant, 2012 WL 952853, No. 06-11-00080-CV (Tex. App.—Texarkana, Mar. 22, 2012). The full text of the opinion can be found here.

American Horse Council Opposes Changes to Federal Child Labor Regulations

On December 15, 2011, the American Horse Council (AHC) issued a news release publicizing its opposition to the Department of Labor's (DOL) proposed child labor regulations concerning children working on farms because of its potential negative impacts on the horse community. 

The AHC was organized in 1969 to represent the horse industry in Washington before Congress and the federal regulatory agencies.  It is a non-profit corporation that represents all segments of the equine industry.

According to the AHC, the proposed rule would effectively bar minors under the age of 16 from working in most capacities in agriculture, especially around horses and other livestock.

On November 30, 2011, the AHC filed comments with the DOL expressing its concerns with the proposed rule.  A link to the AHC’s full comments can be found here

According to the AHC:

The proposed rule would expand the number and scope of Hazardous Occupation Orders (HOs) to such an extent that young people not working on a farm or ranch owned by their parents would be precluded from working in agriculture.  The proposed rule would prohibit herding livestock on horseback or foot in confined spaces such as pens and corrals.  Furthermore, the DOL would prohibited youth from engaging or assisting in almost all common animal husbandry practices, such as branding, breeding, dehorning, vaccinating, castrating livestock, or treating sick or injured animals including horses.  All these activities combined represent a great deal of the work performed in association with livestock.”  

The proposed DOL rule does include an exemption for children working on farms and ranches owned by their parents, but the AHC believes this exemption is too narrow in scope:

The AHC does not believe the proposed rule recognizes the reality that many family farms and ranches are held as LLCs or partnerships with other family members.  We believe there is no reason to believe it has ever been the intent of Congress to excluded farms owned by two siblings or multiple generations of a family from the parental exemption.  Doing so would impact thousands of family farms and ranches and unnecessarily deprive young people of the opportunity to work on a family farm or ranch and all the benefits associated with such work…”

Texas Farm Bureau has also recently published these blog posts featuring the concerns of family farmers who believe the proposed rule would rob many children of the valuable lessons that they could learn working in agriculture and around livestock:

DOL Could Change the Value of Hard Work

New Rules Robbing Our Kids?

In an age where most kids in the United States spend most of their free time in front of a TV set, an I-Pad or a computer, it is hard for me to imagine that so many kids are getting hurt working on farms that a new federal law is required to protect them from “exploitation”.  Do any of you readers know what the real motivation behind this proposed rule really is?  Please feel free to leave your ideas in the comments section.

In next week’s post, I’ll cover the most significant legal developments of 2011 that affect Texas horse owners.  I wish all of you a very Merry Christmas and safe travels this weekend!

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.  

When is it Legal to Shoot a Trespasser?

Surprisingly, my 2008 post entitled How to Deal With Trespassers on Your Property has returned more hits than virtually any other single post on the Equine Law Blog. The search terms that usually land people on that post are some variation of “when is it legal for me to shoot a trespasser?” or “shoot + trespasser + [name of state]”.

Looking at the almost daily searches about shooting trespassers that keep landing people on the Equine Law Blog, it would seem that we have a real issue in this country with trespassers. It would also seem that landowners do not feel that dialing 9-1-1 is going to solve the problem. 

Last weekend's bizarre horse-stabbing case from Pine Grove, California perhaps illustrates the trespassing problem. According to news reports, a man named Gaylord Neil Story, 59, trespassed onto his neighbor’s property, appeared at her door covered in blood, attempted to force his way into her home, chased her through a pasture, rummaged through her vehicle, and stabbed her 14 year-old Quarter Horse gelding. 

But this victim never shot at Story. Instead, she fled her residence and called 9-1-1. Sheriffs’ deputies arrived 12 minutes after the call.

At some point after sheriffs’ deputies arrived at the scene, Gaylord Story brandished a large butcher knife and advanced towards the officers. Deputies opened fire on Story in self defense. Story, who was struck by four rounds (two rounds each from two officers), was dead when medical personnel arrived. However, an autopsy also revealed several self-inflicted stab wounds, one of which would have been fatal.

Luckily, the victim was not injured. The horse was severely injured as a result of the stab wounds, but is expected to make a full recovery.

Reports indicate that the deputies who shot Story have been placed on administrative leave pending an investigation by the California Department of Justice. 

All of this raises some questions: 1) is the trespassing problem increasing because trespassers are no longer afraid of being shot at by landowners? 2) if even the sheriff’s deputies are being investigated for shooting Story (who would have probably died anyway due to self-inflicted stab wounds), what does this mean for landowners?

This prior post contains a summary when it’s permissible under Texas law to use deadly force against a trespasser.  My dad, a native Texan, always says, "I'd rather be judged by 12 than carried by 6."  Texas law basically says that If you reasonably believe you'll be "carried by 6" (i.e. dead) if you don't shoot, you're probably justified in shooting.

The facts surrounding the Story case seem to fit the bill of a case where the victim landowner could have legally opened fire on a trespasser (at least if the incident had occurred in Texas). But unfortunately for landowners, they probably subject themselves to an investigation (and possibly even a trial) if they choose to shoot a trespasser (no matter the circumstances). And would-be trespassers probably know this.

Disclaimer: I don’t specialize in criminal law…so don’t go shootin’ somebody based solely upon something you read on the Equine Law Blog!

Follow me on Twitter @alisonmrowe

How to Deal with Trespassers on Your Property

Landowners who run horse businesses on their land often run into situations in which an unwelcome person attempts to come onto their property.  Sometimes the unwelcome party is someone who once boarded their horse with the property owner, but no longer has a business relationship with the property owner.  In other instances, the trespasser may include a current boarder who has stopped paying the property owner the agreed amount, but still comes out to enjoy the facility as well as their horse without also bringing payment.

Except in special circumstances (mineral exploration, freshwater lakes and streams, easements, beaches, cemeteries) land owners do not have a legal obligation to let uninvited parties onto their land if it is privately-owned.  In other words, the fact that a land owner is running an equine-related business on their land does not give uninvited or unauthorized persons the right to access the private land.  Under Section 30.05 of the Texas Penal Code, a person commits criminal trespass if "he enters or remains on or in property of another without effective consent and he 1) had notice that the entry was forbidden; or 2) received notice to depart but failed to do so."

Below are some steps landowners can take to protect their property from trespassers before a trespass occurs:

1) Post a Sign on Your Property - In addition to the posted sign bearing the Chapter 87 equine liability statute, landowners should also post a "Private Property--No Trespassing" sign at a conspicuous place near the entrance of their property. 

2) Immediately Notify A Former Guest That They Are No Longer Welcome - If someone who used to have permission to access your land is no longer welcome, give them notice, either orally or in writing, that they are no longer welcome on your property and if they attempt to access your property (other than to pay you and take their horse, if money is owed), you will call the sheriff.

3)  Include a Trespass Provision in Your Contracts - If you require people who access your land to sign contracts, include a provision in the contract that your land is private property and you reserve the right to deny them and their guests access if they breach the contract, even if their horse, tack, or other belongings remain on your property;

4)  Secure the Property - If you know a trespass is imminent, lock the gate or take other measures to prevent entry upon the land.  Call the sheriff or local police if you're in the city limits and let them know a trespasser is trying to get onto your property.

If, despite these efforts, someone trespasses on your property, the best thing to do is to call the sheriff and let them handle the trespasser.  If for some reason you cannot have law enforcement intervene, Texas law (Section 9.41 of the Texas Penal Code) allows you to use "reasonable force" to protect your property.  Reasonable force includes any force that is not potentially lethal.  This would probably include physically blocking the trespasser's entry onto the land and perhaps even showing the trespasser that you have a gun and are prepared to use it if warranted.  However, as discussed below, an actual discharge of a firearm, unless clearly not aimed anywhere towards the trespasser, may expose the land owner to unwanted scrutiny by law enforcement.

When is a landowner allowed to shoot at a trespasser?  According to Section 9.42 of the Texas Penal Code, a landowner can shoot at or use other deadly force against a trespasser if the landowner reasonably believes the land or property cannot be protected or recovered by any other means, or that the landowner himself would be exposed to substantial risk of death or serious bodily injury if the landowner does not use deadly force. A landowner can also shoot at or use other deadly force against a trespasser if the force is immediately necessary to prevent the trespasser's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime; or to prevent the trespasser who is fleeing immediately after committing one of those acts from escaping with the property.  "Criminal mischief" includes "knowingly or intentionally damaging or destroying, tampering with or marking, inscribing slogans, drawing or painting on tangible property " of the property owner. 

Using potentially dangerous measures to protect your property is not recommended in all cases, as it can expose a property owner to possible physical harm and also criminal prosecution if too much force is used.  However, property owners should be aware of, and exercise, their right to protect their property under the proper circumstances.