Some Appeal, Kinda, Sorta... Or Maybe NOT

“Noone” who commented on yesterday’s blog is correct, at least partly.  If you want to see the Texas laws, they are available on the official state website here.  If you go there, in the upper right corner, you will read “Statutes effective on: (date)”.  The problem is that the date shown is simply the current date.  When I copied the Health and Safety Code Chapter 821 provisions early Monday morning, the website indicated they were current and I used them.  This is exactly what an informed citizen of this state would do.

Since then, this: “The Texas Constitution and Statutes website will be offline for system maintenance on January 16, 2010.” and “The statutes available on this website are current through the 80th Regular Session. Changes to the statutes enacted in the 81st Regular and First Called sessions should be verified and incorporated in February 2010.” were added.

Texas statutes generally become effective on Sept 1 and January 1 after they are passed and signed into law.  What those 2 warnings REALLY say is that the laws passed in 2009 and ALREADY IN EFFECT are NOT on the website yet.

The big question of interest here (and certainly similar for other laws) is: How many animals were seized since 9/1/2009 and now and will continue to be so seized and whose owners will go to the state’s website and think they have NO right of appeal?  How many judges of teeny tiny courts also use the same website and will rule accordingly?  The answer we will never know but you can bet it has happened!

Now back to the statute.  The Texas legislature amended one section of Chapter 821.  Here’s the amendment that went into effect on 9/1/2009:

(a)  An owner divested of ownership of an animal under Section 821.023 [ordered sold at public auction as provided in this subchapter] may appeal the order to a county court or county court at law in the county in which the justice or municipal court is located.  As a condition of perfecting an appeal, not later than the 10th calendar day after the date the order is issued, the owner must file a notice of appeal and an appeal bond in an amount determined by the [justice or municipal] court from which the appeal is taken to be adequate to cover the estimated expenses incurred in housing and caring for the impounded animal during the appeal process.  Not later than the fifth calendar day after the date the notice of appeal and appeal bond is filed, the court from which the appeal is taken shall deliver a copy of the court's transcript to the county court or county court at law to which the appeal is made.  Not later than the 10th calendar day after the date the county court or county court at law, as appropriate, receives the transcript, the court shall dispose of the appeal. The decision of the county court or county court at law under this section is final and may not be further appealed.  [An owner may not appeal an order:

[(1)  to give the animal to a nonprofit animal shelter, pound, or society for the protection of animals; or

[(2)  to humanely destroy the animal.]


I understand how hard RPOA and others fought to get this amendment and appeals are critically important but, as passed, it creates new problems and continues old ones.  If the court finds in favor of the government, it must assess costs, including “housing and caring for the animal during its impoundment” under Sec. 821.023.  Then set bond for an overlapping portion of that for the 10 days of impoundment during which the appeal window is open.  Double dipping?  As passed, it also requires the trial judge to guesstimate the amount for care beyond that and, inherently, guesstimate how long for the appeal to be decided (as a default, they will use 25 days, the max).  In addition, there’s no standard for how much per animal/per day; not even a cap.  The bond could be enormous (often is just that) and is set completely at the whim of the trial judge.

(Watch the amounts the humane organizations allege they spend on animals in their care as reported in the news.  It's often upwards of $50/day/animal.  That's $1,000 for 20 days.  The Beaumont court assessed $700 for the 3 adult dogs and 2 puppies which had been in SPCA's care for less than 5 days at the time of the hearing.  make a generous allowance for the other items assessed and then do the math to come up with the daily figure for care.  If that represents some minimum level of care, no wonder they think all of us are neglecting our animals!    Who spends $1,500/month on the average pet?  From my perspective, it says something entirely different - that they are lying or simply inclined to spend other peoples' money in a grossly irresponsible manner.)

Once the appeal is filed, the court below has 5 days to send up the file and the County Court gets 10 days from then to enter a final decision.  10 days???  The USGE hearing in Muny court took 7 court days.  This severe limitation of time is guaranteed to ensure a less than fair “trial” in County Court.  It surely discourages one from even trying to seat a jury as that would consume part of this 10 day period.

And then there’s this provision: “The decision of the county court or county court at law under this section is final and may not be further appealed.”  After that nominal trial under those severe time limitations, an absolute prohibition on a real appeal.  I say “real” appeal because going from the teeny tiny court to County Court isn’t a real appeal.  It’s a trial de novo, a do over.  It is a deliberately added step intended to make citizens cave to the will of the government by denying them a fair trial in the first place and putting the burden on them to litigate twice right off the bat.

Given that taking a case from JP or Municipal court to County Court isn’t a true appeal and that the statute specifically denies appeal beyond that AND given that the severe time limitations tend to abrogate the right to a jury trial (which is itself subject to some legal debate), I maintain my position that that Chapter 821 of the TX Health and Safety Code statutorily and effectively denies citizens accused of animal abuse of a jury trial and of an appeal.

Furthermore, I believe these denials are a violation of  fundamental property rights and due process rights protected by both the Texas and US Constitutions.

My page showing the statutes, as amended, will be updated shortly.  What a shame that the Great State of Texas can’t get theirs amended until 4+ months after so many laws went into effect!

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