                            NUMBER 13-09-282-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                      Appellant,

                                         v.

EDUARDO ALMENDAREZ,                                                       Appellee.


              On appeal from the County Court at Law No. 4
                        of Nueces County, Texas.


                                    OPINION

                Before Justices Yañez, Benavides, and Vela
                         Opinion by Justice Vela

      Appellee, Eduardo Almendarez, was charged by information with two counts of

animal cruelty for the neglect of two horses. See TEX . PENAL CODE ANN . § 42.09(a)(2)

(Vernon Supp. 2009). Almendarez filed a pre-trial motion to quash the information,
contending that double jeopardy barred his prosecution. He urged that a justice court had,

in a prior hearing, terminated his ownership of the horses and ordered him to pay $211.00

in restitution to Nueces County Animal Control for the expense incurred in seizing both

horses. The trial court granted the motion to quash, and the State appealed1 to this Court.

In two issues, the State contends the doctrines of double jeopardy and collateral estoppel

do not bar prosecution of Almendarez for cruelty to animals.2 We reverse and remand.

                                        I. PROCEDURAL BACKGROUND

        On May 27, 2008, Ramon Herrera, III, Animal Control Manager for Nueces County

Animal Control, presented an application to Nueces County Justice of the Peace Court,

Precinct 1, Place 1, for a warrant3 to seize two horses, a black quarter horse mare and a

brown filly, owned by Eduardo Almendarez, because they were “being cruelly treated and

that said [horses have] not been reasonably provided necessary food, care, or shelter. .

. . ” The justice court granted the application that same date and set a hearing on the

matter for June 2, 2008.4 After the hearing, the justice court determined5 that the brown

        1
         Article 44.01(a)(1), Texas Code of Crim inal Procedure, allows the State to appeal from an order that
“dism isses an indictm ent, inform ation, or com plaint or any portion of an indictm ent, inform ation, or
com plaint[.]” T EX . C OD E C R IM . P R O C . A N N . art. 44.01(a)(1) (Vernon 2006).

        2
            Eduardo Alm endarez did not file an appellate brief in this case.

        3
            Section 821.022(a) of the Texas Health & Safety Code provides:

                 If a peace officer or an officer who has responsibility for anim al control in a county
        or m unicipality has reason to believe that an anim al has been or is being cruelly treated, the
        officer m ay apply to a justice court or m agistrate in the county or to a m unicipal court in the
        m unicipality in which the anim al is located for a warrant to seize the anim al.

T EX . H EALTH & S AFETY C OD E A N N . § 821.022(a) (Vernon Supp. 2009).

        4
            Section 821.022(b) of the Texas Health & Safety Code provides:

                 O n a showing of probable cause to believe that the anim al has been or is being
        cruelly treated, the court or m agistrate shall issue the warrant and set a tim e within 10
        calendar days of the date of issuance for a hearing in the appropriate justice court or
        m unicipal court to determ ine whether the anim al has been cruelly treated.

                                                         2
filly had been cruelly treated and divested6 Almendarez of all ownership interest in and right

to the brown filly. The court ordered Almendarez to pay $211.00 in restitution7 to Nueces

County Animal Control to cover the expenses of the seizure and care of the horses.

        On October 30, 2008, the Nueces County District Attorney’s Office filed an

information alleging in Count 1 that Almendarez “did then and there intentionally and

knowingly fail unreasonably to provide necessary FOOD for a HORSE in the defendant’s

custody, by NOT PROVIDING FOOD OR WATER.” (emphasis in original). In Count 2, the

information alleged that he “did then and there intentionally and knowingly fail

unreasonably to provide necessary FOOD for a FOAL in the defendant’s custody, by NOT

PROVIDING FOOD OR WATER.” (emphasis in original). Defense counsel filed a motion

to quash the information, contending that the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution barred prosecution of this case. After a

hearing, the trial court granted the motion to quash.


Id. § 821.022(b).

        5
       The justice court signed an order entitled “ORDER TO SELL OR DISPOSE OF CRUELLY TREATED
ANIMAL” which only referred to the brown filly. It m ade no m ention of the black quarter horse m are.

        6
            Section 821.023 of the Texas Health & Safety Code provides, in relevant part:

                 (d) If the court finds that the anim al’s owner has cruelly treated the anim al, the owner
        shall be divested of ownership of the anim al, and the court shall:

                   (1) order a public sale of the anim al by auction;

                 (2) order the anim al given to a nonprofit anim al shelter, pound, or society for the
        protection of anim als; or

                (3) order the anim al hum anely destroyed if the court decides that the best interest
        of the anim al or that the public health and safety would be served by doing so.

Id. § 821.023(d)(1)-(3).

        7
           Section 821.023(e) of the Texas Health & Safety Code provides, in relevant part: “A court that finds
that an anim al owner has cruelly treated the anim al shall order the owner to pay all court costs, including costs
of: (1) investigation; (2) expert witnesses; (3) housing and caring for the anim al during its im poundm ent; . .
. .” Id. § 821.023(e)(1)-(3).
                                                         3
                                        II. STANDARD OF REVIEW

        In reviewing a trial court’s ruling on a motion to quash an information, we apply an

abuse-of-discretion standard. Thomas v. State, 44 S.W.3d 171, 174 (Tex. App.–Houston

[14th Dist.] 2001, no pet.). A trial court abuses its discretion if it acts without reference to

any guiding rules or principles, or acts arbitrarily or unreasonably. Id. (citing Lyles v. State,

850 S.W.2d 497, 502 (Tex. Crim. App. 1993)).

                                              III. DISCUSSION

        In issue one, the State contends double jeopardy does not bar the criminal

prosecution because the penalty ordered by the justice court did not constitute “criminal

punishment” for double-jeopardy purposes. The Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution provides, in relevant part, “[N]or shall any

person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.

CONST . amend V, cl. 2. The Double Jeopardy Clause of the Texas Constitution provides,

“[N]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall

a person be again put upon trial for the same offense, after a verdict of not guilty in a court

of competent jurisdiction.”8 TEX . CONST . art. 1, § 14. “The Fifth Amendment double

jeopardy clause protects against multiple prosecutions for the ‘same offense’ following

acquittal or conviction.        It also protects against multiple punishments for the ‘same

offense.’” Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007). “[T]he Double

Jeopardy Clause ‘prohibits merely punishing twice, or attempting a second time to punish

criminally, for the same offense.’” Witte v. United States, 515 U.S. 389, 396 (1995)

        8
          The Texas Constitution has been construed to give no greater protection than the United States
Constitution with respect to double jeopardy. Johnson v. State, 920 S.W .2d 692, 693 (Tex. App.–Houston
[1st Dist.] 1996, pet. ref’d) (citing Stephens v. State, 806 S.W .2d 812, 815 (Tex. Crim . App. 1990)). Thus, a
bifurcated analysis is not necessary. Capps v. State, 265 S.W .3d 44, 49 n.9 (Tex. App.–Houston [1st Dist.]
2008, pet. ref’d).
                                                      4
(quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938)) (emphasis in original).

A. Whether Jeopardy Attached At The Justice Court Hearing

       We must first determine whether jeopardy previously attached at the justice court

hearing before examining whether Almendarez’s current prosecution for animal cruelty is

barred by a second jeopardy. Ex parte Ward, 964 S.W.2d 617, 625 (Tex. Crim. App.

1998); Ex parte George, 913 S.W.2d 523, 525 (Tex. Crim. App. 1995); see State v.

Moreno, No. PD-0821-08, 2009 WL 3013577, at *2 (Tex. Crim. App. Sept. 23, 2009)

(stating that “jeopardy must have attached initially[]” before double-jeopardy protections are

implicated.); see also Illinois v. Somerville, 410 U.S. 458, 467 (1973) (stating that “the

conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether

the Double Jeopardy Clause bars retrial.”). Attachment of jeopardy is necessary because

in order for the principles of double jeopardy to be invoked, there must be a former

jeopardy. Ex parte Ward, 964 S.W.2d at 625. In other words, “an accused must suffer

jeopardy before he can suffer double jeopardy.” Serfass v. United States, 420 U.S. 377,

393 (1975) (quoted in Ex parte McAfee, 761 S.W.2d 771, 772 (Tex. Crim. App. 1988)). In

Ex parte George, the court of criminal appeals addressed the doctrine of attachment of

jeopardy:

       [T]he modern development of constitutional jurisprudence makes the
       resolution of jeopardy questions depend, in most contexts, upon a doctrine
       known as the attachment of jeopardy. Thus, before it can be said that an
       accused has been put in jeopardy a second time, in violation of the Texas or
       United States Constitution, it must appear that he was actually put in
       jeopardy before.

Ex parte George, 913 S.W.2d at 525 (emphasis added). “Thus, determining when

jeopardy attaches is the initial source for examining whether a proceeding is barred as a

second jeopardy.” Ex parte Ward, 964 S.W.2d at 625 (emphasis in original).

                                              5
       Double jeopardy does not bar remedial civil proceedings based on the same offense

as a prior criminal prosecution, or vice versa. State v. Solar, 906 S.W.2d 142, 146 (Tex.

App.–Fort Worth 1995, pet. ref’d); see also One Lot Emerald Cut Stone v. United States,

409 U.S. 232, 235-36 (1972) (per curiam) (stating that Congress may impose both a civil

and a criminal sanction for the same act or omission; double jeopardy clause merely

prohibits attempting to punish criminally for same offense); Malone v. State, 864 S.W.2d

156, 159 (Tex. App.–Fort Worth 1993, no pet.) (stating that trial for termination of parental

rights is a civil proceeding with a remedial result—protecting abused and neglected

children—and does not trigger jeopardy bar to subsequent criminal prosecution for

aggravated sexual assault of child). “[I]n determining whether a criminal prosecution is

barred due to the prohibition against multiple punishments, attachment of jeopardy occurs

in a civil proceeding when punishment is actually imposed.” Ex parte Ward, 964 S.W.2d

at 624 n.8 (emphasis in original). If a civil sanction or remedy imposed on a person does

not constitute punishment, a subsequent criminal prosecution of that individual arising out

of the same situation, circumstances, or conduct neither implicates nor violates the

protections against double jeopardy. See, e.g., Ex parte Tharp, 935 S.W.2d 157, 159-61

(Tex. Crim. App. 1996) (holding that an administrative license suspension did not constitute

punishment and therefore did not implicate the protections against double jeopardy in

regard to a subsequent DWI prosecution); Fant v. State, 931 S.W.2d 299, 308-09 (Tex.

Crim. App. 1996) (holding that Texas’ civil asset-forfeiture scheme did not constitute

punishment and therefore did not implicate the protections against double jeopardy in

regard to a subsequent prosecution for the offense underlying the asset forfeiture); Capps

v. State, 265 S.W.3d 44, 49 (Tex. App.–Houston [1st Dist.] 2008, pet. ref’d) (concluding

that disciplinary actions brought against attorney did not constitute criminal punishment to
                                              6
bar subsequent criminal proceedings); Ex parte Sheridan, 974 S.W.2d 129, 131-34 (Tex.

App.–San Antonio 1998, pet. ref’d) (holding that the cancellation of the defendant’s

alcoholic beverage license because he lied on the application did not constitute

punishment and therefore did not bar his subsequent prosecution for making false

statements on the application). Here, if the termination of Almendarez’s rights to the brown

filly and the order of restitution did not constitute punishment, his subsequent criminal

prosecution arising out of the same conduct neither implicated nor violated the protections

against double jeopardy. See id.; see also Ex parte Ward, 964 S.W.2d at 630 (explaining

that “had jeopardy attached in the civil tax proceeding [for possession of drugs] . . . any

proceeding initiated by the State to prosecute the . . . defendants on the possession of

drugs would have been considered the functional equivalent of a successive prosecution

placing them at risk for a second punishment for the same conduct.”) (emphasis in

original).

       “Whether a particular punishment is criminal or civil is, at least initially, a matter of

statutory construction.” Hudson v. United States, 522 U.S. 93, 99 (1997) (holding civil suit

resulting in monetary civil penalties for violation of federal banking statutes did not bar later

criminal prosecution). “A court must first ask whether the legislature, in establishing the

penalizing mechanism, indicated either expressly or impliedly a preference for one label

or the other.” Id. (internal quotes omitted).

       The provisions in Subchapter B of Chapter 821 of the Texas Health and Safety

Code, and specifically sections 821.022-023, are civil in nature. See Chambers v. State,

261 S.W.3d 755, 759 (Tex. App.–Dallas 2008, pet. denied) (noting “that the State filed the

animal cruelty case pursuant to chapter 821 of the health and safety code dealing with the

health and safety of animals, not as a crime under the penal code.”); Granger v. Folk, 931
                                             7
S.W.2d 390, 392 (Tex. App.–Beaumont 1996, pet. denied) (stating that “[c]learly, two

avenues exist for the State in protecting animals from cruel treatment, i.e., criminal

prosecution under . . . the [Texas] Penal Code and the civil remedy provided under Section

821.023 of the Health and Safety Code”).9 In fact, section 821.023 expressly contemplates

the possibility of criminal proceedings brought subsequent to civil proceedings. See TEX .

HEALTH & SAFETY CODE ANN . § 821.023(b) (Vernon Supp. 2009) (“A statement of an owner

made at a hearing provided for under this subchapter is not admissible in a trial of the

owner for an offense under section 42.09 or 42.092, Penal Code.”); see also Granger, 931

S.W.2d at 392 (stating that section 821.023(a) “presumes a criminal proceeding prior to

the civil proceeding while [section 821.023(b)] presumes the reverse[]” and that “in the

criminal proceeding, a defendant may face loss of freedom or fine or both, whereas, a

proceeding under section 821.023 may subject the defendant to a loss, forfeiture and

confiscation of property rights and interests.”) (footnote omitted).

        Having determined that the intent of section 821.022-023 of the health and safety

code was civil and remedial, and not criminal or punitive, we must now examine “‘whether

the statutory scheme [is] so punitive either in purpose or effect as to transform what was

clearly intended as a civil remedy into a criminal penalty.’” Rodriguez v. State, 93 S.W.3d

60, 67 (Tex. Crim. App. 2002) (quoting Hudson, 522 U.S. at 99) (citations and internal

quotation marks omitted). To evaluate whether the effects of the statute are criminally

punitive, courts generally look to the factors set forth by the Supreme Court in Kennedy v.



        9
          See also Bradley v. State, No. 01-08-00332-CR, 2009 W L 1688200, at *3 (Tex. App.–Houston [1st
Dist.] June 18, 2009, no pet. h.) (m em . op., not designated for publication) (in determ ining whether anim al-
cruelty prosecution was jeopardy barred because of a previous hearing under section 821.023 of the Texas
Health & Safety Code at which the anim als that were the subject of the crim inal prosecution were seized and
restitution was ordered, appellate court determ ined that “[t]he provisions in subchapter B of Chapter 821 of
the Texas Health and Safety Code, and specifically sections 821.022-023, are civil in nature.”).
                                                       8
Mendoza-Martinez, 372 U.S. 144, 169 (1963), and restated by the Court in Hudson (the

“Hudson factors”). Courts consider: (1) “‘[w]hether the sanction involves an affirmative

disability or restraint;’” (2) “‘whether it has historically been regarded as a punishment;’” (3)

“‘whether it comes into play only on a finding of scienter;’” (4) “‘whether its operation will

promote the traditional aims of punishment-retribution and deterrence;’” (5) “‘whether the

behavior to which it applies is already a crime;’” (6) “‘whether an alternative purpose to

which it may rationally be connected is assignable for it;’” and (7) “‘whether it appears

excessive in relation to the alternative purpose assigned.’” Hudson, 522 U.S. at 99-100

(quoting Kennedy, 372 U.S. at 168-69). “‘[T]hese factors must be considered in relation

to the statute on its face, and only the clearest proof will suffice to override legislative intent

and transform what has been denominated a civil remedy into a criminal penalty.” Id. at

100 (quoting United States v. Ward, 448 U.S. 242, 249 (1980)) (internal quotation marks

omitted). “In reviewing the double jeopardy claim raised in Hudson, the Court explained

that the factors are ‘useful guideposts’ but that none are dispositive.” Rodriguez, 93

S.W.3d at 68 (quoting Hudson, 522 U.S. at 99).

B. Application Of The Hudson Factors

1. Whether The Sanction Involved An Affirmative Disability Or Restraint

       In Hudson, the Supreme Court held that occupational disbarment and the imposition

of monetary fines “do not involve an ‘affirmative disability or restraint,’ as that term is

normally understood. While petitioners have been prohibited from further participating in

the banking industry, this is certainly nothing approaching the infamous punishment of

imprisonment.” 522 U.S. at 104 (citing Flemming v. Nestor, 363 U.S. 603, 617 (1960))

(internal quotation marks partially omitted). Here, the sanctions (termination of ownership

rights in the brown filly and payment of $211.00 in restitution) did not involve an affirmative
                                                9
disability or restraint against Almendarez. See id.10

2. Whether The Sanction Has Historically Been Regarded As A Punishment

        Monetary restitution has not historically been viewed as punishment in the double-

jeopardy context. See Capps, 265 S.W.3d at 51 (stating that “neither monetary restitution

nor disbarment has historically been viewed as ‘punishment’. . . .”) (citing Hudson, 522 U.S.

at 104); Ex parte Lozano, 982 S.W.2d 511, 513 (Tex. App.–San Antonio 1998, no pet.)

(stating that “[a] civil penalty is considered remedial if its purpose is merely to reimburse

the government for damages sustained as a result of the defendant’s criminal conduct.”).

With respect to the termination of Almendarez’s ownership rights in the brown filly, both the

United States Supreme Court and this Court have stated that civil forfeitures do not

constitute punishment for double-jeopardy purposes. See United States v. Ursery, 518

U.S. 267 (1996) (concluding that federal civil forfeitures do not constitute punishment for

double-jeopardy purposes because they are civil in rem proceedings which are neither

punitive nor criminal in nature); Ex parte Torres, 941 S.W.2d 219, 221 (Tex. App.–Corpus

Christi 1996, no pet.) (explaining that “in enacting the forfeiture statutes, the [Texas]

Legislature intended forfeitures to be civil proceedings, remedial in nature, and not a form

of punishment.”).11 We note the sanctions imposed here are no more serious than “those

quasi-administrative adjuncts of a criminal sentence that have not traditionally been

considered criminal sanctions:              for example, the loss of voting privileges, license

suspensions or revocations as well as the . . . dissemination of rap sheet information.”



        10
          See id. at *4 (after applying first Hudson factor, court concluded that “the seizure of appellant’s dogs
and the order requiring that he pay for their care while boarded at the Houston Hum ane Society did not
‘involve an affirm ative disability or restraint’ upon appellant.”).

        11
         See id. (after applying second Hudson factor, court stated, “[T]he civil provisions of subchapter B
of Chapter 821 [Texas Health & Safety C ode], which were enacted for the protection of anim als, have not
been historically regarded a ‘punishm ent’ against the owners of anim als.”).
                                                       10
Rodriguez, 93 S.W.3d at 72.

3. Whether The Sanction Comes Into Play Only On A Finding Of Scienter

         There is no general requirement of scienter (culpable mental state) under Chapter

821 of the health and safety code, and a finding of scienter is not required in order for a

court to divest an owner of his or her rights in animals or to order restitution. See TEX .

HEALTH & SAFETY CODE ANN . § 821.022-023 (Vernon Supp. 2009). While the justice court

may have considered Almendarez’s culpable mental state in rendering its order of

termination and restitution, nothing in section 821.023 provides for termination or restitution

that involves an element of scienter. See id.;12 Cf. Hudson, 522 U.S. at 104 (no finding of

scienter required when provisions allowed for assessment of a penalty against any person

“who violates” any of the underlying banking statutes).

4. Whether The Sanction’s Operation Will Promote The Traditional Aims Of Punishment-
Retribution And Deterrence

         When a statute promotes the traditional aims of punishment—retribution and

deterrence—its effect is more likely to be considered punitive. Rodriguez, 93 S.W.3d at

73 (citing Hudson, 522 U.S. at 104). “The existence of a deterrent effect alone, however,

will generally be insufficient to transform a civil sanction into a criminal one.” Id. (citing

Hudson, 522 U.S. at 105). Courts must always assess this factor with an eye to the

statute’s stated aims. Id. When the legislature has not manifested an intent to promote

the traditional aims of punishment, it behooves us to refrain from searching for one in the

statute’s indirect effects. Id. The conduct that led to the sanctions against Almendarez

formed the basis for the subsequent criminal prosecution against him. However, this fact



        12
            See id. (after applying third Hudson factor, court stated that “no finding of scienter is required under
Chapter 821 [Texas Health & Safety Code]") (citing Capps v. State, 265 S.W .3d 44, 51 (Tex. App.–Houston
[1st Dist.] 2008, pet. ref’d) (noting that “there is no general requirem ent of scienter in the disciplinary rules”).
                                                        11
is insufficient to render the sanctions “criminally punitive.” See Hudson, 522 U.S. at 105

(explaining that the conduct for which sanctions are imposed, even if the conduct formed

the basis for an indictment, is insufficient to render the sanctions “criminally punitive,

particularly in the double jeopardy context[.]”) (citation omitted). The Hudson Court

recognized that while the imposition of “sanctions will deter others from emulating

petitioners’ conduct, a traditional goal of criminal punishment[,] . . . the mere presence of

this purpose is insufficient to render a sanction criminal, as deterrence ‘may serve civil as

well as criminal goals.’” Id. (quoting Ursery, 518 U.S. at 292). The retributive and deterrent

effects of section 821.022-023 of the health and safety code are incidental, and not

primary, to the statute’s operation and, therefore, militate towards nonpunitive intent.13 See

Rodriguez, 93 S.W.3d at 74 (stating that when a statute’s “retributive and deterrent effects

. . . are incidental, and not primary, to the statute’s operation[,] . . . we . . . weigh this factor

in favor of nonpunitive intent.”).

5. Whether The Behavior To Which The Sanction Applies Is Already A Crime

        “A statute that applies to behavior that is already a crime is more likely to be

characterized as a criminal sanction.” Id. However, the Supreme Court has noted that this

factor alone is insufficient to render sanctions criminally punitive. Hudson, 522 U.S. at 105.

Even though the cruel treatment of animals may lead to prosecution under the Texas Penal

Code, “this fact is insufficient to render” the remedies afforded under section 821.023 as

criminally punitive. See Ex parte Sheridan, 974 S.W.2d at 134 (“It is well settled that the

legislature ‘may impose both a criminal and a civil sanction in respect to the same act or


          13
            See id. (after applying fourth Hudson factor, court stated, “[A]lthough proceedings brought under
chapter 821 to seize cruelly treated anim als ‘m ay offer som e am ount of deterrence—a traditional goal of
crim inal punishm ent— the m ere presence of the purpose is insufficient to render’ these proceedings and the
resulting order divesting ownership and requiring paym ent for anim al care to be crim inal punishm ent.”) (citing
Capps, 265 S.W .3d at 52).
                                                       12
omission.’”) (quoting Helvering, 303 U.S. at 399).14

6. Whether An Alternative Purpose To Which The Sanction May Rationally Be Connected
Is Assignable For It

        “Under this factor, we inquire whether there is an alternative, nonpunitive purpose

that may rationally be connected to the statute.” Rodriguez, 93 S.W.3d at 74 (citing

Kennedy, 377 U.S. at 168-69). The legislature passed Chapter 821 of the health and

safety code to provide justice courts with special and limited jurisdiction over actions

alleging cruel treatment of animals. Chambers, 261 S.W.3d at 759. Thus, the statute

promotes the nonpunitive purpose of protecting animals; however, another goal of the

statute is to order the animal owner to pay the restitution needed to reimburse the local

governmental entity for the cost to seize and care for the mistreated animals. See TEX .

HEALTH & SAFETY CODE ANN . § 821.023(e) (Vernon Supp. 2009). This latter, alternative,

purpose is rationally connected to the aim of the statute and is not intended to punish the

animal owner for his conduct. Therefore, we conclude that this factor is, on balance,

indicative of a nonpunitive effect.15

7. Whether The Sanction Appears Excessive In Relation To The Alternative Purpose
Assigned

        In the context of a double-jeopardy claim, the Supreme Court made it clear that

courts should not elevate this factor to dispositive status. Hudson, 522 U.S. at 101.

Nevertheless, of all the Hudson factors, “this factor cuts most directly to the question of

which statutes cross the boundaries of civil sanctions, and which do not.” Rodriguez, 93



        14
          See id. (after applying fifth Hudson factor, court stated, “[A]lthough the cruel treatm ent of anim als
m ay give rise to crim inal proceedings, ‘this fact is insufficient to render’ the rem edies afforded under section
821.023 as ‘crim inally punitive.’”).

        15
         See id. (stating that “proceedings brought under subchapter B of Chapter 821 and the rem edies
authorized therein are designed to protect anim als from cruel treatm ent. . . .”).
                                                       13
S.W.3d at 75. Accordingly, we afford this factor “considerable weight” in deciding whether

the statute is “punitive-in-fact.” Id. Here, two horses were seized, and the justice court

ordered Almendarez to pay $211.00 in restitution to cover this cost. Nothing in the record

shows that this amount is excessive or arbitrary. As noted above, proceedings brought

under Subchapter B of Chapter 821 and the remedies authorized therein are designed to

protect animals from cruel treatment, and neither divesting a party from the ownership of

cruelly treated animals nor requiring the payment of money for their care are excessive to

this alternative purpose.16

        In sum, the intent of section 821.022-023 of the health and safety code was civil and

remedial in nature. Moreover, weighing all of the Hudson factors, there is no proof, much

less the “clearest proof” required by Hudson,17 that the justice court’s sanctions were so

punitive either in purpose or effect as to transform the civil action and remedies imposed

into a criminal punishment.18 Accordingly, jeopardy did not attach at the justice court

hearing. Therefore, we hold that the subsequent criminal prosecution for cruelty to animals

does not violate the double-jeopardy prohibitions of the United States and Texas

Constitutions.19 We further hold that the trial court abused its discretion in granting the

motion to quash on the grounds that the subsequent criminal prosecution violated the



        16
         See id. (after analyzing seventh Hudson factor, court stated that “neither divesting a party from the
ownership of cruelly treated anim als nor requiring the paym ent of m oney for their care are excessive” for the
purpose of “protecting] anim als from cruel treatm ent, . . . .”).

        17
             See Hudson v. United States, 522 U.S. 93, 100 (1997).

        18
            See Bradley, 2009 W L 1688200, at *4 (after analyzing Hudson factors, court “conclude[d] that ‘there
is little evidence m uch less the clearest proof,’ that the justice court’s order of disposition term inating
appellant’s ownership of the dogs and requiring that he pay for their care was so punitive either in purpose
or effect as to transform the civil action and rem edies im posed into a crim inal punishm ent.”).

        19
          See id. (court held “that the State’s subsequent crim inal prosecution for the crim inal offense of
cruelty to anim als does not violate the double jeopardy prohibitions of the United States and Texas
Constitutions.”).
                                                      14
double-jeopardy prohibitions. Issue one is sustained.

       In issue two, the State contends the doctrine of collateral estoppel does not bar

prosecution of Almendarez for cruelty to animals. “‘Before collateral estoppel will apply to

bar re-litigation of a discrete fact, that fact must necessarily have been decided in favor of

the defendant in the first trial.’” Rollerson v. State, 227 S.W.3d 718, 730-31 (Tex. Crim.

App. 2007) (quoting Ex parte Watkins, 73 S.W.3d 264, 268 (Tex. Crim. App. 2002)). In

other words, the doctrine “prevents a party who lost a fact issue in the trial of one cause

of action from relitigating the same fact issue in another cause of action against the same

party.” Ex parte Taylor, 101 S.W.3d 434, 440 (Tex. Crim. App. 2002) (emphasis in

original). Here, the State did not lose on a fact issue in the justice court proceedings. In

fact, the State prevailed in the justice court proceedings, and this disposition is the basis

of Almendarez’s complaint in the county court at law that he was being put in second

jeopardy. Accordingly, the State is not collaterally estopped from prosecuting Almendarez

for the offenses of cruelty to animals. Issue two is sustained.

                                         Conclusion

       We sustain the State’s issues, reverse the order quashing the information, and

remand the case to the trial court for further proceedings consistent with this opinion.



                                                  ROSE VELA
                                                  Justice

Publish. TEX . R. APP. P. 47.2(b).

Delivered and filed the
10th day of December, 2009.




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