                         THE         ATTORNEY                        GENERAL
                                            OF      +KiXAS
                                       Arrs-r~~.‘lkxAs~              78711
  JOHN L. amA,
.A--       CIIGIIPRIL.
                                                      July      6, 1973


       Honorable    Bryan Davis                                      Opinion   No.   H- 56
       County Attorney,     Nacogdoches            County
       P. 0. Box 736                                                 Re:     Whether    the shooting of
       Nacogdoches,     Texas 75961                                          live pigeons   as targets  only,
                                                                             and not for food, is unlawful.

       Dear     Mr.     Davis:

             You have requested      our opinion as to whether   the holding of a
       pigeon shoot, in which the birds are released         as targets,   after first
       having their tail feathers      plucked out to effect an erratic   mode of
       flight,  violates    1374, Vernon’s    Texas Penal Code.     You state in
       your request      that the pigeons used in the “shoot” are not “wild
       pigeons ” defined as game birds under Article         872, V. T. P. C.

              Article    1374 reads:

                         “Whoever     overdrives,      willfully      overloads,    drives
                   when overloaded,         overworks,       tortures,t     orments,
                   deprives    of necessary       sustenance,        unnecessarily       or
                   cruelly   beats,     or needlessly     mutilates       or kills any
                   animal,    or carries      any animal in or upon any vehicle,
                   or otherwise,       in a cruel or inhumane manner,               or
                   causes or procures          the same to be done, or who
                   having the charge or custody of any animal unnecessarily
                   fails to provide      it with proper food, drink, or cruelly
                   abandons it, shall be fined not exceeding                 two hundred
                   dollars.    As used in this article           the word ‘animal’ in-
                   cludes every living dumb creature,                 and the word
                    ‘torture’ and ‘cruelly’       includes     every act, omission
                   or neglect whereby         unnecessary        or unjustifiable       pain
                   or suffering     is caused,     permitted        or allowed    to con-
                   tinue when there is a reasonable               remedy     or relief.    ”
                   (Emphasis      added)




                                                          p.   239
                                                                                               c   -




The Honorable        Bryan     Davis   page   2    (H-56)




There are no Texas cases in which Article               1374 has been applied to the
shooting of animals       for amusement.         By far the greater      number of cases
involving   the statute are those growing          out of shooting of trespassing
animals.     Such, apparently,        were the facts which led to the case of
Cinadr v. State,      300 S. W. 64 (Tex.        1927) where the defendant       was charged
with, an information      which read:      “did needlessly     kill one hog. ” The
Court of Criminal       Appeals     recognizing     that there were statutes expressly
sanctioning    the killing of wild animals and fowls for sport and further           recog-
nizing that the exercise       of judgment by the owner of a domestic            animal in
determining     to slaughter     the animal was not the proper          subject of legis-
lative restriction,     held that the language       “needlessly     . . . kills any animal”
was too vague to be enforceable           and violated   Article    1, Section 10 of the
Texas Constitution.

        The Cinadr opinion         however   is important   in that (1) it apparently
recognized    that birds are        animals  within the definition   of the statute and
(2) it expresses,    by way       of dictum,   that other offenses   defined by the
statute are not subject to         the same criticism.

       The   Court     said:

                      “It is within the power of the State to protect
              animals    from brutality   or wanton abuse or destruction,
              and to protect    the owner of animals    against   mistreat-
              ment as a principle     of law thoroughly   established
              through the decisions     of this and other jurisdictions     . . .‘I
              (300 S. W. at 65)

        Eliminating     prohibited   acts of Article     1374 which obviously    do not
apply to the facts      at hand, the basic question        remaining   is whether   it is
a violation   of the    Article   to remove      some of the tail feathers   from a pigeon
and then shoot it      in a manner which may or may not result in its immediate
death.    Does this     constitute    “torturing,   ” “tormenting,   ” or to “needlessly
mutilate?   ” The Act defines the term torture         to include ” . . . every
act . . . whereby    unnecessary    or unjustifiable     pain or suffering   is
caused,permitted     or allowe,d to continue when there is a reasonable
remedy    or relief. ” In common parlance        “torture”    and “torment”     have
virtually  the same meaning,     i. e., to cause intense       suffering.   To muti-




                                              p.   240
The Honorable     Bryan   Davis,    page    3 (H-56)




late means to cut off or permanently          destroy    a limb or essential part of
a body or to cut up or alter radically        a body    so as to make it imperfect.

      We have found no other Texas decision        which would help in deciding
the question presented.     The only decisions   from other states which we
have found, such as State v. Bogardus,       4 MO. App. 215 (1877); Common-
wealth v. Lewis,   21 A 396 (Pa. 1891) and Waters      v. People, 46 P. 112
(Cal. 1896), are oi l:t:tie a,ssisi?nce.

        It is our opinion that a Texas court if directly       faced with the question
would hold that Article      1374, V. T. P. C., is sufficiently     specific  and is
constitutional     insofar as it outlaws the torturing,    tormenting      and needlessly
mutilating     of animals.

        As difficult  as it may be to determine     the meaning of “torture,”
“torment,    ” and “needlessly  mutilate,   ” it is even more difficult   to determine
specifically    whether a pigeon shoot: is prohibited     by the statute.   Certainly,
however,     the statute does not aut:horize   mutilation   of pigeons before   killing
them.

        Whether  or not people participating      in a particular  pigeon shoot
violate  the law ultimately    will be a question    for jury determination.    It
would be improper     for us to pass judgment and to declare         them guilty or
not guilty of a criminal    c,harge without a trial on the merits.

        It is our opinion,   however, that the facts as described    by you in
your letter would be held sufficient    to uphold a conviction   ,of violation of
Article    1374, V. T. P. C..


                                   -SUMMARY

                      Although   each case must be determined      upon
              it own facts? where the tail feathers    01 pigeons are
              plucked to cause iheir flight: to be erratic,    they are
              thrown in the air, shot and left to die, the facts are
              sufficient   to support a conviction for torturing,    tar-.




                                       p.   24I
    The Honorable   Bryan   Davis,        page   4   (H-56)




            menting and or needlessly    mutilating           an animal
            in violation of Article 1374, Vernon’s             Texas Penal
            Code.

                                          Very   truly   yours,




APPROVED:




DAVID M. KENDALL,       Cha<rman
Opinion Committee




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