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            The Attorney                 General of Texas
                                 March   24,   1980




        Honorable Bill Stubblefield                   Opinion No. m-154
        Williamson County Attorney
        Georgetown, Texas 78626                       Re: Constitutionality  of a county
                                                      dog ordinance    based on article
                                                      192-3, V.T.C.S.

        Dear Mr. Stubblefield:

               You ask two questions concerning a county ordinance that authorizes
        the killing of dogs for attacking domestic animals. The ordinance adopts
        article 192-3, V.T.C.S., which includes the following provision:

                       Any dog, whether registered and tagged or not,
                    when found attacking any sheep, goats, calves, and/or
                    domestic animals or fowls, or which has recently
                    made, or is about to make such attack on any sheep,
                    goats, calves, and/or other domestic animals and
                    fowls, may be killed by anyone present and witnessing
                    or having knowledge of such attack and without
                    liability in dsmsge to the owner of such dog. . . .

        Sec. 3. You wish to know whether this provision violates constitutional
        protections sgainst taking of property without due pmcess of law.

              It is well established that property which is dangerous to the safety of
        the community may be summarily destroyed without violating due process of
        law. Sentell v. New Orleans & C. R. Co., 166 U.S. 698 (1897); Cannon v. City
        of Dallas, 263 S.W.2d 288 (Tex. Civ. App. - El Paso 1953, writ rePd n.r.e.).
        A vicious dog which endangers the safety of property may be lawfully killed.
        City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. - Eastland 1963,
        writ ref’d n.r.e. .

               Statutes similar in most respects to that at issue here have been
        upheld in a number of jurisdictions.  A Colorado statute, whose validity was
        sustained in Falling v. People, 98 P.2d 865 (Cola. 1940), provided that “any
        dog found running, worrying or injuring sheep or cattle may be killed” 98
        P.2d, at 866. In New Jersey, the statute permitted the destruction by any
        person of “a dog . . . which is found chasing, worrying, wounding or
        destroying sny sheep, lamb, poultry or domestic animal.” Bunn v. Shaw, 69




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Honorable Bill Stubblefield    -   Page Two      (MW-154)



A.2d 576, 577 (N.J. 19491. And in Saucy v. Wysocki, 96 A.2d 225 (Corm. 19531, the court
upheld a statute which provided

            any owner . . . of any domestic animal or poultry . . . may kill any
            dog which he shall find pursuing or worrying any such domestic
            animal or poultry.

96 A.24 at 228.

       By contrast, the Supreme Court of Idaho struck down on due process grounds a
statute which permitted a game warden to kill %ny dog running at large in territory
inhabited by deer.” In that case, Smith v. Costello, 290 P.2d 742 (Id 1955), there was “no
contention that the dogs were tracking, chasing, molesting or worrying deer or had the
habit of so doing.l’ -Id at 743. The court held that a legislative declaration

            that a dog running at large in territory inhabited by deer is a public
            nuisance,    without more, is an arbitrary,       unreasonable,   and
            unconstitutional regulation.

Id at 744. It is instructive to note, however, that even the Idaho court indicated that its
ztermination     might have been otherwise had it been demonstrated          that the dog in
question “had the habit” of chasing deer. These decisions seem to indicate that section 3
of article 192-3, V.T.C.S., will withstand attack on constitutional grounds.

       You next ask what standard would be required to show that a dog is “known to hsve
attacked . . . a domestic animal or fowl?” This inquiry requires the consideration and
resolution of fact questions, and therefore cannot be answered in an Attorney General
Opinion.

       Although we cannot conclude that section 3 of article 192-3, V.T.C.S., is violative
of due process, we believe it is appropriate to take cognizance of the relative severity of
a statute which authorizes the summary destruction of a dog by any person “having
knowledge” of the dog’s attack on any “domestic animal”        The statute reflects a long
standing conflict between livestock owners and dog lovers, particularly in rural areas, and
article 192-3, V.T.C.S., cannot of course be implemented in the absence of an affirmative
county-wide majority vote. All three state courts which have upheld statutes similar to
article 192-3, V.T.C.S., must have felt a similar sense of unease, however, for each of
them added a few comments on the law’s significance.

     The Connecticut    court said that

           recent authority tends toward the full recognition        of property
           rights in dogs as in other domestic animals.

Saucy, sllpra. at 228. The New Jersey court indicated that




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        Honorable Bill Stubblefield   -    Page Three      (NW-1541



                    opinions may well differ as to the equities of a particular case and
                    we may sympathize with the views of the respective parties, but
                    they are not our concern.

        Bunn, supra, at 578. The court implied that a relaxation in the statute’s severity may be
        overdue, but that amendment must come from the legislature.     Bunn, supra, at 578. And
        in Falling v. People, a,     the court, while upholding the law, was not reluctant to
        disclose its sympathies:

                    With such legal sanction as is provided by section 40, a dog’s life
                    continues to be more haxardous in rural than in urban territory.
                    Evidently the clash is between the economic and the aesthetic.  We
                    may sympathize with the aesthetic, but positive law must controL

        96 P.2d, at 867.

               Before article 192-3, V.T.C.S., can be adopted in any county, it must be approved by
        an affirmative     vote of the voters of the county.     As we have noted, article 192-3,
        V.T.C.S., need not be adopted in any county, but in any county in which sheep, cattle and
        other livestock remain of substantial economic importance, it is available to protect those
        interests from attacking dogs.

                                               SUMMARY

                   A county ordinance which, pursuant to an affirmative vote of the
                   people of the county, adopts the provisions of section 3 of article
                   192-3, V.T.C.S., is not unconstitutional.

                                                   e
                                                        Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        TED L. HARTLEY
        Executive Assistant Attorney General

        Prepared by Rick Gilpin
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        C. Robert Heath, Chairman




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Honorable Bill Stubblefield   -   Page Four    (MW-154 1



Walter Davis
Susan Garrison
Rick Gilpin
Eva Loutzenhiser
Bruce Youngblood




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