This is almost unfair to a teeny tiny court judge who went to the trouble to write a lengthy opinion (when writing an opinion in these seizure cases is RARE to begin with) but it would be even more unfair not to point out what I see as the errors in the ruling; to not show how the court is thinking and, in my opinion, wrongly thinking. I think this is important because I think this ruling shows some of what is wrong with how animal seizures are often performed and how the law is applied.
First, foremost, and I think critically important is that Texas Health and Safety Code Chapter 821 refers repeatedly and exclusively to “animal” in the singular. Lawyers and legislators have some stock phrasing to use and regularly do so when they want singular to include the plural. That language is absent from this statute which tells me that the intent is for each animal to be evaluated and ruled upon individually. We’ve seen these seizures of multiple animals before and the US Global Exotics (USGE) case is merely an extreme example. If one animal is alleged abused, ALL animals of the owner are swept up in the seizure. I see absolutely nothing in the statute that infers that possibility in any way, shape or form. Similar to this is CPS snatching up all the children in a family (or religious community) based on allegations of one child being abused. The appellate courts made it very clear that doing so is governmental overreaching, intolerable and unacceptable.
26,411 animals seized and 7 days of testimony. Assuming each day was 8 hours (actually each was about half that), that’s 56 hours, 3,360 minutes, 201,600 seconds. Each animal got a maximum of 7.6 seconds consideration.
I think I’ve made it pretty clear in earlier entries that I find the “evidence” in this case to be suspect at best and, beyond that, I think what was acquired during and after the seizure to be completely poisoned (further addressed below) but, for now, I will deal with what the judge wrote in his order.
“the evidence would not support a finding that all animal deaths in a facility such as U.S. Global’s are the result of the treatment the animals are receiving there” Does it support a finding that ANY of the animal deaths were a result of that treatment? Apparently not since even this biased judge didn’t make that finding.
“no steps were taken by Respondents to insure that more intensive and generous care was given to those whose stay was being extended”. WHAT? What do you mean “intensive and generous care”? This “slip” by the judge perfectly exemplifies the problem with how the animal cruelty law is actually being applied. While quoting the statutory language in their findings, what they judges are actually applying is a yuppified, PETAfied elevated concept of caretaking. The statute is CLEARLY intended to deal with cruelty and cruelty alone; not neglect and CERTAINLY not to seize animals that aren’t being kept to this grossly elevated standard. And yet, no matter the language used by the judges, this is clearly the standard being used as they continue to rubber stamp seizures of animals by finding them “cruelly treated” (when they are often merely neglect cases at the very worst) and transferring ownership to another person or entity. This is pure activism from the bench. Don’t like the law? Lobby to change it but don’t start thinking that judge’s dais is a thrown!
“Evidence was received which indicated that this facility was operated in accordance with industry standards of the exotic animal trade. While this may be true, this Court is not free to substitute those standards for the standards set by Texas statutes.” Nor is the Texas legislature free to substitute its standards over the animal care clearly regulated by at least 2 federal agencies. This business was subject to a multitude of minimum care standards set by the federal government and was regularly inspected. With regard to these animals in interstate (and international) commerce, the care of the animals has been preempted by the federal law. If they met industry standards and federal law, the State of Texas has ZERO business trying to modify what the feds have said is minimally acceptable, let alone to raise the standard. The Court certainly has no business trying to apply a standard even higher that that set by either federal or state law and particularly should decline to do so when it infringes upon fundamental property rights.
Findings: “The Respondents cruelly treated all of the animals made subject of this hearing by cruelly confining the animals.” “In particular, all of the animals were cruelly treated in one or more of the following manners…” The findings are simply ABSURD. As I indicated before, the statute speaks in the singular. There should be an individual finding for each animal. Merely making this type of global finding indicates a complete lack of respect for the statute’s intent which is to assist individual animals found to be cruelly treated and that requires a finding for each of them. And, "one or more"? Could you be more vague?
Here’s what I know that hasn’t been covered in the media and isn’t addressed in the judge’s ruling. That global “all” includes pampered pet type animals that were in the front office. And that’s part of the reason I know this global ruling is ABSURD!!!
“At the time of this seizure, the City believed that Jasen and Vanessa Shaw were the owners of this business and the owners of the animals.”; “seizure warrant, which named Jasen and Vanessa Shaw as the animals’ owners”. I couldn’t care less what the City “believed”. They had an obligation to INVESTIGATE and the fact that they didn’t even bother to find out if this company was incorporated by making a 5 minute phone call to the Texas Secretary of State indicates how shoddy their investigation was from the very start.
“the business and animals are actually owned by a corporation called U.S. Global Exotics, Inc.” and yet the judge says: “There appears to be no statutory requirement that the application for the warrant, or the warrant itself, must contain the name of the owner.” WHAT? You have a law license? Yes, shockingly. But let’s don’t look beyond that single statute! LAZY, LAZY, LAZY, AND BIASED.
All searches and seizures must pass constitutional muster. One purpose of a warrant is to “notify[ ] the subject of the search that his privacy must yield to the public's need for law enforcement.” (And there’s a court that did a nice analysis of the subject too.) Call them the “subject”, “suspect”, “owner” or by any other name but you can’t just name anyone in a warrant and then seize assets that belonging to another person or entity; specificity is most definitely required. And, in this case, there’s just plain no excuse for the name in the warrant to have been wrong but for the City’s reckless disregard for basic fundamental investigation and complete and utter disregard for the rights of the citizenry. Can I offer anyone some fruit of a poisoned tree?
Well, yes, judge, Jasen Shaw may indeed be president of the Corporation but that notice STILL wasn’t addressed to the corporation so that ain’t notice to the corporation AT ALL. (I hear some of you whispering that it’s close enough; that’s a “mere technicality”. Ever talked to someone who’s been through a wicked divorce? By this judge’s reasoning, serving a warrant on the soon to be ex-spouse would be “close enough”, they are related parties in this community property state. These “mere technicalities" exist to protect us all and they are VERY important, not to be easily dismissed or ignored, which is exactly why they are embodied in our Supreme Law of the Land.)
THE ACTUAL ORDER, the DEFECTIVE order:
“Pursuant to Texas Health and Safety Code § 821.023(d), the City is given the animals and is ordered to sell the animals at a public sale by auction, have the animals humanely euthanized, or give the animals to a non-profit animal shelter, pound, or society for the protection of animals” Unfortunately, that’s not what the statute TELLS you to order. Here it is (again):
(d) If the court finds that the animal's owner has cruelly
treated the animal,
the owner shall be divested of ownership of the animal, and
the court shall:
- (1) order a public sale of the animal by auction;
- (2) order the animal given to a nonprofit animal shelter, pound, or society for the protection of animals; or
- (3) order the animal humanely destroyed if the court decides that the best interests of the animal or that the public health and safety would be served by doing so.
That statute doesn’t say “and/or” or that you can delegate to some other party. This is YOUR decision and you have to make one of those three choices as to EACH and EVERY animal. What you did was “give” them to the City and that isn’t even one of your options!!! In my opinion, it is also clear that the legislature intended for judges to work from the top of that list to the bottom and in the order listed. While that isn’t specified, that the legislature specified that the sale proceeds be used to abrogate the previous owner’s losses and legal assessments from the suit certainly indicates an acknowledgment that these animals are property and may have sale value. That is all the more true in a case where the animals were the inventory of an animal wholesaler and the court’s utter disregard for their value by issuing this wimpy order is apparent.
It's one of those days when I'm glad not to be practicing law any more as dealing with incompetent judges is trying and tiresome and there are all too many of them sitting on benches in Texas!
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“Many animals died in the facility, but these deaths do not constitute conclusive evidence of cruel treatment. The testimony showed that at the time of the seizure, approximately 600 dead animals were found in Respondent’s facility at 1007 Oakmead Drive. This statistic has received much publicity and might persuade the casual observer that Respondents are automatically to blame, but this Court finds that the evidence does not support such a view, any more than it supports the view that the City is automatically responsible for the deaths of the almost 4,000 animals that have died since the City took custody of them. As the City and Respondents have clearly and ably pointed out, when one acquires an animal, it may already have problems.”
Gets a little tough when the favored party turns out to be a far worse caretaker than the owner, doesn’t it? I can’t wait to see how many deaths and killings the City and its caretaking friends have to fess up to in the County Court!