San Marcos Mercury | Local News from San Marcos and Hays County, Texas

Left to right: Wimberley residents Erin Pate and Scott Pate, and Hays County Pct. 3 Commissioner Will Conley. The Pates

by SEAN BATURA

Hays County suspended part of its animal control ordinance Tuesday after some residents objected to the legal destruction of two Wimberley dogs accused of killing 12 chickens, and after the District Attorney’s Civil Division indicated another portion of the ordinance has been legally unenforceable since 2003.

This means that instead of immediately requiring the destruction of dogs found to have attacked livestock, the Hays County Sheriff’s Office will confiscate and hold any offending animals at the City of San Marcos animal shelter (at the owners’ expense) until Feb. 28, when county commissioners are expected to amend the ordinance. Any animals held until then will eventually be released and subject to the amended ordinance, which is expected to allow dog owners more due process rights.

Under current law, dogs must be killed if they are “known” to have attacked livestock. County Judge Bert Cobb, during Tuesday’s commissioners court meeting, said the ordinance’s use of the word “known” is “evidentiary.”

“My point exactly, Judge: What does ‘known’ mean?” said Pct. 3 Commissioner Will Conley, who is spearheading the effort to change the ordinance. “I also have a problem with the government — in this case, animal control officers — having the ability to be judge, jury, and executioner, coming to your home on your private property, and taking your property at their demand.”

Conley said the current ordinance unjustly requires officers to destroy dogs even in cases where there is no longer a dispute between the livestock owner and an offending dog owner.

“It’s put our Sheriff’ Office in a terrible position,” Conley said.

Though the county will forgo destroying livestock-attacking dogs for the next week, property owners will continue to have the right to kill dogs or coyotes caught on the premises killing or attempting to kill or harass livestock.

Proposed changes to the county’s animal control ordinance will be available for public review as early as Friday at 5 p.m. on the county’s website.

In addition to adding due process rights for offending dog owners, commissioners plan to eliminate the possibility of jail time, a punishment the DA’s office says contradicts state law. Additionally, commissioners may modify the section of the ordinance dealing with animals accused of being a public nuisance.

“It made my stomach turn the other day to find out that in one situation [in western Hays County], someone has a rooster who is pretty proud of himself in the morning and makes a lot of noise,” Conley said. “The neighbor doesn’t like it. Our officers have been out there 62 times. It costs $120,000 to put an officer on the street in this county. We have a lot of issues going on throughout this county…we have a shortage of officers as it is in this county and because of the way our ordinance is written, we have officers going out and dealing with a situation like that 62 times over a fairly short period of time. I think that’s wasteful, I think that’s bad government.”

Cobb criticized the current animal control ordinance for seemingly treating dog attacks on livestock more seriously than canine attacks on humans.

The county’s current ordinance, enacted by commissioners in 2003, defines “dangerous dog” as one that has attacked a human being without provocation in an area other than inside the enclosure where the dog is kept.

The ordinance provides fines and civil penalties for dog owners who violate provisions in the law’s “Ownership of Dangerous Dogs” section, but provides fines and jail time for dog owners who refuse or fail to allow their dogs to be killed for attacking livestock.

According to the DA’s Civil Division, the jail penalty conflicts with state law — specifically, with Chapter 822 of the Texas Health and Safety Code, Subchapter B.

“Subchapter B does not give a county the authority to pass a more stringent law than what is on the books,” said Mark Kennedy, chief of the District Attorney’s Civil Division.

Subchapter B stipulates that owners of dogs “accustomed to run, worry, or kill livestock, domestic animals, or fowls” who let their dogs run loose may be punished by a fine not to exceed $100.

The current effort to revamp the ordinance began after two dogs were destroyed by the City of San Marcos’ animal shelter last week, about five days after the animals reportedly killed 12 chickens in Wimberley. The incident was reportedly recorded on a game camera and the dogs were taken into custody by county animal control officers.

One dog was abandoned and the other owned by Wimberley residents Scott and Erin Pate, a couple. The Sheriff’s Office says Scott Pate released custody of the animal and expressed relief, though the Pates dispute this.

“We didn’t release the dog,” said Erin Pate. “The dog was taken.”

Gutierrez said the couple’s dog was already in the county’s custody when an animal control officer asked Scott Pate to release custody. Gutierrez said if Pate had refused to release custody, the officer would have noted this in her report, which Gutierrez said she did not.

The Sheriff’s Office says the couples’ dog was a yellow lab/pit bull mix. The Pates claim it was a yellow lab named “Angel,” who they said was spayed. Erin Pate pleaded for the dog’s life in a FOX 7 television news broadcast on Feb. 14. On Feb. 15, the Sheriff’s Office reported the dogs were destroyed late the previous day.

“We have three acres, it’s not fenced-in,” said Scott Pate. “We’ve been there two years and [Angel had] always been real good about staying in the yard. I’ve been working from home a lot lately and so I have been letting her out during the day. I’ve accepted responsibility for what happened. I should have done more to keep her in the yard. I didn’t realize she was wandering so far off. I know that’s no excuse. I guess once she started hanging out with that other dog, they started wandering around the neighborhood, because before that, she would just stay in her yard.”

Sheriff Gary Cutler attended Tuesday’s commissioners court meeting and provided input to commissioners and comments to the assembled press.

“It’s been a long time since the ordinance has been visited and I do think we need to go in a positive direction,” Cutler said. “I totally commend the court for looking into a new ordinance and making the necessary changes.”

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3 thoughts on “County suspends portion of animal control law

  1. Really?
    Someone has called about a rooster 62 times. THAT is pathetic! In the name of Angel please the animal shelter and animal control needs a major overhaul. We need to have a no kill shelter as well as vaccinations. The fees for not having a dog on a leash etc. are insane. Much less the adoption fee in itself. Please let the county take over the animal shelter so we can provide much more to the animals of Hays county. There are ways to make positive changes and thank you for all the people who havde been supportive of Angel. Let’s give these animals all a chance to have a better life! Always spay and neuter your pets! it saves lives of many others looking for love.

  2. All “dogs must be killed if they are “known” to have attacked livestock.” Of course. Kill the thing if it is destroying someone else properties before the dog killer kill a person. If the dog is dangerous, put IT down. The law should NOT be changed.
    You people should worry about the obese kids or something like that. Please!

  3. It was not “a” rooster who was pretty proud, it was many roosters. To be exact, an animal hoarder with over 50 “free ranging” chickens roaming the neighborhood destroying other peoples gardens and landscaping and crowing all night right outside peoples windows. When animal control finally rounded up the loose chickens after 2 years, there were over 15 roosters. They are territorial and will crow all night in constant competition with eachother. Mr. Conley should have gotten all the faccts before he used this example for political grandstanding. Hays County Animal Control has no back up to enforce nuisance violations because of the good old boy system giving certain folks immunity.

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