                                ATTORNEY GENERAL OF TEXAS
                                             GREG         ABBOTT




                                                   July 14, 2008



The Honorable Laurie K. English                            Opinion No. GA-0646
112th Judicial District Attorney
400 South Nelson                                           Re: Meaning of the term "previously captured"
Fort Stockton, Texas 79735                                 for purposes of section 42.092 ofthe Penal Code,
                                                           which prohibits cruelty to nonlivestock animals
                                                           (RQ-0666-GA)

Dear Ms. English:

       You inquire about the meaning of the term "previously captured" for purposes of section
42.092 of the Penal Code, which prohibits cruelty to nonlivestock animals.!

         You furnish the following facts:

                          In December, the Texas Parks & Wildlife Department in my
                  jurisdiction investigated the beating and subsequent death of two
                  young deer at the hands of four students (two juveniles and two
                  adults). The teens chased the deer into the School District's baseball
                  batting cage which measures approximately 90 feet by 15 feet, with
                  a fence approximately 9 feet in height. After trapping the deer, the
                  teens left the baseball field and then returned with a shovel and a bat.
                  The teens then beat the two deer to death. Investigators believe the
                  event occurred within the time span of 60-90 minutes.

Request Letter, supra note 1, at 2.

         Section 42.092 of the Penal Code provides in relevant part:

                        (b) A person commits an offense ifthe person intentionally,
                  knowingly, or recklessly:



         lLetter from Honorable Laurie K. English, District Attorney, 112th Judicial District, to Honorable Greg Abbott,
Attorney General of Texas (Jan. 11, 2008) (on file with the Opinion Committee, also available at
http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable Laurie K. English - Page 2                     (GA-0646)




                               (1) tortures an animal or in a cruel manner kills or
                  causes serious bodily injury to an animal; ...

TEX. PENAL CODE ANN. § 42.092(b) (Vernon Supp. 2007).2 "Animal" is defined as "a domesticated
living creature, including any stray or feral cat or dog, and a wild living creature previously
captured. The term does not include an uncaptured wild living creature or a livestock animal." Id.
§ 42.092(a)(2) (emphasis added). See also ide § 42.09(5) (defining "livestock animal").

         An offense under section 42.092(b) occurs only ifit is committed against an "animal," which
in this instance includes "a wild living creature previously captured."3 You ask us to construe the
meaning of the term "previously captured." Request Letter, supra note 1, at 1-2.

        In construing a statute, our primary objective is to ascertain and give effect to the intent of
the Legislature. City ofHouston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). Our office, like the
courts, begins its analysis of a statute by construing its plain language. See Tooke v. City ofMexia,
197 S.W.3d 325,356 (Tex. 2006). Under the Code Construction Act, "[w]ords and phrases shall
be read in context and construed according to the rules of grammar and common usage." TEx.
GOV'T CODE ANN. § 311.011(a) (Vernon 2005). Moreover, undefined terms in the Penal Code are
to be given their common ordinary meaning unless context indicates otherwise. TEX. PENAL CODE
ANN. § 1.05(b) (Vernon 2003).

       The term "previously captured" is not defined in the Penal Code. In 2004, a Texas appellate
court observed that "[t]he common-law rule of capture is based on the concept that ownership of a
migratory resource occurs when one exerts control over it and reduces it to possession." City ofSan
Marcosv. Tex. Comm'nonEnvtl. Quality, 128 S.W.3d264,270-71 (Tex. App.-Austin2004,pet.


         2Subsection (t) of section 42.092 provides:

                  It is an exception to the application of this section that the conduct engaged in by the actor
         is a generally accepted and otherwise lawful:

                  (1) form of conduct occurring solely for the purpose of or in support of:

                       (A) fishing, hunting, or trapping; or

                      (B) wildlife management, wildlife or depredation control, or shooting
                  preserve practices as regulated by state and federal law; or

                  (2) animal husbandry or agriculture practice involving livestock animals.

TEX. PENAL CODE ANN. § 42.092(t) (Vernon Supp. 2007).

          3 Although a "deer" may exist in a wild or domesticated state, we will assume for purposes of this opinion that

each of the deer of which you inquire was a "wild living creature." See State v. Weber, 102 S.W. 955, 956 (Mo. 1907)
(statute embraces within its definition all kinds of deer, "whether tame or wild"). Ifthe deer in question had in fact been
domesticated, they would still fall within the defmition of "animal" in section 42.092(a)(2) of the Penal Code, as a
"domesticated living creature." TEX. PENAL CODE ANN. § 42.092(a)(2) (Vernon Supp. 2007).
The Honorable Laurie K. English - Page 3                   (GA-0646)




denied), citing Pierson v. Post, 3 Cai. R. 175, 178 (N.Y. Sup. Ct. 1805) ("possession ofhunted wild
animal established when 'pursuer manifests an unequivocal intention of appropriating the animal to
his individual use, has deprived him of his natural liberty, and brought him within his certain
control"').4 See Tex. Att'y Gen. LO-94-071, at 2 ("use ofthe word 'penned' indicates that any feral
animal which participates in the staged event has been 'previously captured. '''). The concept of
"capture" as set forth in City ofSan Marcos is consistent with the common meaning ofthe term. The
word "capture" means "to take captive; to seize or take possession of by force, surprise, or
stratagem." WEBSTER'S NEW INTERNATIONAL DICTIONARY 400 (2nd edt 1947). The word "captive"
means "a person who has been taken prisoner or an animal that has been confined." NEW OXFORD
AMERICAN DICTIONARY 257 (2001) (emphasis added).

        With regard to the concept of"previously," a Texas appellate court has recently held that the
word "previous" means "going or existing before in time." In re A.N, 54 S.W.3d 487,491 (Tex.
App.-Fort Worth 2001, pet. denied). This meaning accords with the common definition of
"previous" as "existing or occurring before in time or order." NEW OXFORD AMERICAN DICTIONARY
1351 (2001). And absent any measurable or formal time component in section 42.092(b), it is
sufficient that the act of capture simply precede the act that constitutes a violation of section
42.092(b). Under the terms ofthe statute, and on the facts as you have presented them, we conclude
that a wild living creature that is "previously captured" is one that has been confined against its will
at some prior time.




         4The City o/San Marcos case involved the capture of groundwater, but the court extrapolated from the general
rule applicable to the capture of all natural resources. City o/San Marcos, 128 S.W.3d at 270-71.
The Honorable Laurie K. English - Page 4          (GA-0646)



                                      SUMMARY

                       Section 42.092 ofthe Penal Code defines "animal" to include
              any wild living creature "previously captured." Under the facts
              described, a wild living creature has been previously captured ifit has
              been confined against its will at some time prior to the act of
              inflicting torture, death, or serious bodily injury to the creature.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
