David Hayes v. State ( 2015 )

ACCEPTED
12-15-00194-cv
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/24/2015 10:33:27 AM
Pam Estes
CLERK
CASE NO. 12-15-00194-CV
IN THE
FILED IN
12th COURT OF APPEALS
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/24/2015 10:33:27 AM
TYLER,TEXAS
PAM ESTES
Clerk
DAVID HAYES, Appellant
vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
County Court of Law Number
Henderson County, Texas
(Trial Court Case Number C-7919)
BRI EF OF APPELLEE
Barry L. Spencer, Jr.
Henderson County Attorney's Office
100 E. Tyler Street, Room 100
Athens, Texas 75751
Telephone: (903) 675-6112
Facsimile: (903) 675-6192
EMAIL:
barry.spencer@co.henderson.tx.us
State Bar No.: 24013548
ATIORNEY FOR APPELLEE
THE STATE OF TEXAS
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
David Hayes
TRIAL COURT JUDGE:
The Honorable D. Scott Williams
County Court at Law
Henderson County, Texas
100 E. Tyler St., Room 103
Athens, Texas 75751
(903) 675-6162
ATTORNEY FOR THE STATE: Barry L Spencer, Jr.
(for Trial and Appeal) Assistant County Attorney
Henderson County, Texas
100 East Tyler Street, Room 100
Athens, Texas 75751
(903) 675-6112
ATTORNEY FOR APPELLANT: Mr. James H. Owen
(for Trial) P.O. Box 1447
Athens, Texas 75751
Tel: 903681-6487
ATTORNEY FOR APPELLANT: Mr. James H. Owen
(on Appeal) P.O. Box 1447
Athens, Texas 75751
Tel: 903681-6487
11
TABLE OF CONTENTS
Identity of Parties and CounseL ....................................................................................... ii
Index of Authorities ........................................................................................................ iv
Statement of the Case .................................................................................................... 2
Issue Presented ............................................................................................................... 2
Statement of Facts .......................................................................................................... 3
Summary of Argument ..................................................................................................... 3
Argument and Authority .................................................................................................. 4
Conclusion ....................................................................................................................... 6
Prayer ..............................................................................................................................6
Statement Regarding Oral Argument .............................................................................. 6
Certificate of Service ....................................................................................................... 7
Certificate of Compliance with Rule 9.4 ...... ..................................................................... 7
Appendix .......................................................................................................................... 8
111
INDEX OF AUTHORITIES
CASES
Bovd v. Dean, 515 S.W.2d 753 (Tex.Civ.App.-Beaumont 1974, no writ) ..................... .4
Field v. Anderson, 1 Tex. 437 (1846) ..............................................................................4
Pitt v. State, 918 S.W.2d 4 (Tex. App.-Houston [14th Dist.] 1995) ................................ 4
Seale v. McCallum, 287 S.W.45 (1926) .......................................................................... 4
STATUTES AND RULES:
Texas Health and Safety Code, Section 822.003 ................................................ 2,3,4,5,6
Health and Safety Code, Section 822.0421 .................................................................... 5
Health and Safety Code, Section 822.0424 ..................................................................... 5
IV
CASE NO. 12-15-00194-CV
IN THE
TWELFTH COURT OF APPEALS
TYLER, TEXAS
DAVID HAYES, Appellant
vs.
THE STATE OF TEXAS, Appellee
On Appeal from the
County Court of Law Number
Henderson County, Texas
(Trial Court Case Number C-7919)
APPELLEE'S BRIEF ON THE MERITS
TO THE HONORABLE COURT OF APPEALS:
Comes now Appellee, THE STATE OF TEXAS, by and through her attorney,
Barry. L. Spencer, Jr., and respectfully submits her brief on the merits urging that the
justice of the peace's and the trial court's order finding that Appellant's dogs be
destroyed be affirmed.
Appellant hereby waives oral argument.
1
STATEMENT OF THE CASE
On January 19, 2015, Michael "Chris" Kirkpatrick was pushing his bicycle down
the road when three dogs escaped from their enclosure and attacked him causing
serious injuries.
On January 22, 2015 the Henderson County Sheriffs Department applied for and
received a warrant to seize the dogs, which were already in quarantine, from Appellant.
(CR at 18-20).
On January 26, 2015, the Justice of the Peace for Precinct #2 held a hearing and
found that two of the dogs were "dangerous dogs" and ordered those two dogs
destroyed under Health and Safety Code Section 822.003. (CR at 22). Appellant
appealed the decision of the justice of the peace to the Henderson County Court at
Law. (CR at 16,26). Appellant requested a jury trial in said court, but the trial court
removed the case from the jury docket. (C R at 29,124).
The trial court found there was no right to a jury trial for the case. (CR at 146).
After a trial on the merits, the trial court found that all three dogs committed an
unprovoked attack and caused serious bodily injury to a person and that all three dogs
should be destroyed. (CR 140-141). See Texas Health and Safety Code, Section
822.003. The Final Order was signed on May 1,2015. (CR 140-141).
Appellant filed a Motion for New Trial on May 27,2015. (CR at 167-168). It was
denied on July 9, 2015. (CR at 176).
Appellant filed his Notice of Appeal seeking review of the trial court's denial of his
request for a jury trial on July 30, 2015. (CR at 196).
ISSUES PRESENTED
Appellant raises one issue on appeal:
Appellant claims the trial court erred in denying Appellant a jury trial in
the case.
2
STATEMENT OF FACTS
On January 19, 2015, Michael "Chris" Kirkpatrick was pushing his bicycle
down the road when three dogs escaped from their enclosure and attacked him causing
serious injuries.
On January 22, 2015 the Henderson County Sheriff's Department applied for and
received a warrant to seize the dogs, which were already in quarantine, from Appellant.
(CR at 18-20).
On January 26, 2015, the Justice of the Peace for Precinct #2 held a hearing and
found that two of the dogs were "dangerous dogs" and ordered those two dogs
destroyed under Health and Safety Code Section 822.003. (CR at 22). Appellant
appealed the decision of the justice of the peace to the Henderson County Court at
Law. (CR at 16,26). Appellant requested a jury trial in said court, but the trial court
removed the case from the jury docket. (CR at 29,124).
The trial court found there was no right to a jury trial for the case. (CR at 146).
After a trial on the merits, the trial court found that all three of the dogs committed
an unprovoked attack and caused serious bodily injury to a person and that all three
dogs should be destroyed. (CR 140-141). See Texas Health and Safety Code, Section
822.003. The Final Order was signed on May 1, 2015. (CR 140-141).
Appellant filed a Motion for New Trial on May 27,2015. (CR at 167-168). It was
denied on July 9.2015. (CR at 176).
Appellant filed his Notice of Appeal seeking review of the trial court's denial of his
request for a jury trial on July 30, 2015. (CR at 196).
SUMMARY OF ARGUMENT
Appellant had no right to appeal the determination of the Justice of the Peace
Court ordering the dogs destroyed. There is no provision in Texas Health and Safety
3
Code, Subsection A for Appellant to appeal the Justice of the Peace's findings and
ordering the dogs destroyed.
The trial court did not err in denying Appellant's request for a jury trial. There
was no right to a jury trial under Texas Health and Safety Code Chapter 822,
Subchapter A. Health and Safety Code Section 822.003 provides for a hearing to be
held not more than ten days after the warrant was issued. Nowhere in the statute is an
owner given the right to a trial or a jury trial. The statute continuously refers to the
court making the finding and decision on whether the dog(s) should be destroyed.
ARGUMENT
No Right to Appeal Justice of the Peace Decision
The trial court did not have jurisdiction to hear this case on appeal from the
Justice of the Peace Court.
The legislature has the power to limit the right to appeal. Seale v. McCallum, 287
S.W.45 (1926); Pitt v. State, 918 S.W.2d 4 (Tex. App.-Houston [14th Dist.] 1995). The
legislature by statute, can entrust special and limited jurisdiction to justice of the peace
courts from which no appeal exists. Field v. Anderson, 1 Tex. 437 (1846); Pitt v. State,
918 S.W.2d 4 (Tex. App.-Houston [14th Dist.] 1995). The right of appeal must be
expressed in plain and ambiguous language and a statute may not be liberally
interpreted to create that right where it does not exist. Boyd v. Dean, 515 S.W.2d 753
(Tex.Civ.App.-Beaumont 1974, no writ); Pitt v. State, 918 S.W.2d 4 (Tex. App.­
Houston [14th Dist.] 1995).
Under Chapter 822, Subchapter A of the Texas Health and Safety Code, the
legislature provided the justice courts with jurisdiction over the procedure for destruction
of dogs found to have caused serious bodily injury to a person by attacking, biting, or
mauling them. Texas Health and Safety Code Section 822.003. No right to appeal this
4
determination was created by the statute; therefore the trial court did not have
jurisdiction to hear the appeal of the determination made by the justice court to destroy
the dogs.
The legislature has created the right to appeal in other sections of Chapter 822.
Health and Safety Code, Section 822.0421 and Section 822.0424 both provide
mechanisms for appeal of a justice of the peace finding. There is no such mechanism
for appeal under Section 822.003; therefore there is no right to appeal the justice of the
peace's determination that the dogs should be destroyed under that section.
JUry Trial Request
If the trial court did have jurisdiction to hear the appeal, the trial court did not err
in denying Appellant's request for a jury trial. There was no right to a jury trial under
Texas Health and Safety Code Chapter 822, Subchapter A. Health and Safety Code
Section 822.003 provides for a hearing to be held not more than ten days after the
warrant was issued. The purpose of the hearing is to answer three questions:
(1) Did the dog attack, bite, or maul a person,
(2) Did the person suffer serious bodily injury or death, and
(3) Did the attack, bite, or mauling cause serious bodily injury or death.
The court is not making a formal determination of whether or not the dog is a
"dangerous dog" under other sections or subchapters of the statute.
Nowhere in the statute is an owner given the right to a trial or a jury trial. The
statute continuously refers to the court making the finding and decision on whether the
dog(s) should be destroyed.
As of September 1,2015, some sections of Health and Safety Code Chapter 822
do give the owner the right to a jury trial for determinations; however, Section 822.003
still does not. See Health and Safety Code Section 822.0421(b). Health and Safety
5
Code Section 822.0421 (b) now provides, in part, that an owner may appeal "and is
entitled to a jury trial on request." There is no such provision under the statute
applicable in this case.
CONCLUSION
In conclusion, the justice of the peace court should have had the final decision to
destroy the dogs in this case and the County Court at Law did not have jurisdiction to
hear the appeal of this case.
Alternately, the County Court at Law did not err in denying Appellant's request for
a jury trial because the law does not provide Appellant with the right to a jury trial of a
Texas Health and Safety Code Section 822.003 determination.
PRAYER
WHEREFORE, Appellee prays that this Court affirm the judgment that the dogs,
the subject of this case, be destroyed.
Respectfully submitted,
/s/ Barry L. Spencer, Jr.
Barry L. Spencer, Jr.
Attorney for the State
100 E. Tyler St., Room 100
Athens, Texas 75751
State Bar No. 24013548
903675-6112 Telephone
903675-6192 Facsimile
ATTORNEY FOR APPELLEE
STATEMENT REGARDING ORAL ARGUMENT
Appellee respectfully requests that oral arguments in this case be waived that all
arguments that would be asserted in oral arguments have been advanced in the brief.
/s/ Barry L. Spencer, Jr.
Barry L. Spencer, Jr.
Attorney for the State
6
CERTIFICATE OF SERVICE
I do hereby certify that on this, the 24th day of November, 2015, a true copy of the
Appellee's brief will be served on the following parties bye-mail or bye-service, if
available.
ATTORNEY FOR THE APPELLANT
JAMES H. OWEN
Po Box 1447
Athens, Texas 75751
Tel: 903681-6487
Fax 469533-4616
e-mail: James.Owen@attorneyJamesOwen.com
SBN: 15368200
lsI Barry L. Spencer, Jr.
Barry L. Spencer, Jr.
Attorney for the State
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Using Microsoft Word word count utility, I have determined that this document
contains 1388 words, not including the "caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authorities, statement of
issues presented, statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance and appendix".
lsI Barry L. Spencer, Jr.
Barry L. Spencer, Jr.
Attorney for the State
7
APPENDIX
Health and Safety Code, Section 822.003 .................. '" ....................A
Health and Safety Code, Section 822.0421 .............................. ......... 8
Health and Safety Code, Section 822.0424 ... .................................... 8
Order Removing Case from Jury Docket. ..... ..................................... C
Findings of Facts and Conclusions of Law
(Order Removing Case from Jury Docket) ........................... .............. D
Final Order... .............................................................................. E
8
HEALTH AND SAFETY CODE CHAPTER 822. REGULATION OF ANIMALS Page 1 of2
Sec. 822.003. HEARING. (a) The court shall set a t for a
hearing to determine whether the dog caused the death of or serious
bodily injury to a person by attacking, biting, or mauling the
person. The hearing must be held not later than the 10th day after
the date on which the warrant is issued.
(bl The court shall written notice of the time and place
of the hearing to:
(1) the owner of the dog or the person from whom the dog
was seized; and
(2) the person who made the complaint.
(c) Any interested party, including county attorney or city
attorney, is entitled to evidence at the hearing.
(d) The court shall order the dog destroyed if the court finds
that the dog caused the death of a person by attacking, ting, or
mauling the person. If that finding is not made, the court shall
order the dog released to:
(1) its owner;
(2) the person from whom the dog was seized; or
(3) any other person authorized to take possession of the
dog.
(e) The court may order the dog destroyed if the court finds
that the dog caused serious bodily injury to a person by attacking,
biting, or mauling the person. If that f ng is not made, the
court shall order the dog eased to:
(1) its owner;
(2) the person from whom the dog was seized; or
(3) any other person authoriz to take possession of the
dog.
(f) The court may not order the dog destroyed if the court
finds that the dog caused the serious bodily injury to a person by
attacking, biting, or maul the person and:
(1) the dog was being used for the protection of a person
or person's property, the attack, bite, or mauling occurred in an
enclosure which the dog was being kept, and:
(A) the enclosure was reasonably certain to prevent the
dog from the enclosure on its own and provided notice of the
presence of a dog; and
http://www.statutes.legis.state.tx.us/Docs/HS/htmlHS.822.htm
A
1112312015
HEALTH AND SAFETY CODE CHAPTER 822. REGULAnON OF ANIMALS Page 2 of2
(B) the injured person was at least eight years of age,
and was trespassing in the enclosure when the attack, bite, or
mauling occurred;
(2) the dog was not being used for the protection of a
person or person's property, the attack, bite, or mauling occurred in
an enclosure in which the dog was being kept, and the injured person
was at least eight years of age and was trespassing in the enclosure
when the attack, bite, or mauling occurred;
(3) the attack, bite, or mauling occurred during an arrest
or other action of a peace officer while the peace officer was using
the dog for law enforcement purposes;
(4) the dog was defending a person from an assault or
person's property from damage or theft by the injured person; or
(5) the injured person was younger than eight years of age,
the attack, bite, or mauling occurred in an enclosure in which the
dog was being kept, and the enclosure was reasonably certain to keep
a person younger than eight years of age from entering.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Renumbered from Health & Safety Code Sec. 822.002 and amended by Acts
1997, 75th Leg., ch. 99, Sec. 1, eff. Sept. 1, 1997.
http://www.statutes.legis.state.tx.us/Docs/HS/htmlHS.822.htm 11123/2015
84(R) HB 1436 - Introduced version - Bill Text http://www.legis.state.tx.us/tiodocs/84R1bi1ltext!htmlIHB01436I.htm
84R3098 JSC-F
By: Smithee H.B. No. 14
A BILL TO BE ENTITLED
AN ACT
relating to appeals regarding dangerous dogs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 822.0421, Health and Safety Code, is
amended to read as follows:
Sec. 822.0421. DETERMINATION THAT DOG IS DANGEROUS. (a) I f
a person reports an incident described by Section 822.041 (2), the
animal control authority may investigate the incident. If, after
receiving the sworn statements of any witnesses, the animal control
authority determines the dog is a dangerous dog, the animal control
authority [~] shall notify the owner in writing of the
determination [that fact].
(b) Notwithstanding any other law, including a municipal
ordinance, an [Aft] owner, not later than the 15th day after the date
the owner is notified that a dog owned by the owner is a dangerous
dog, may appeal the determination of the animal control authority
to a justice, county, or municipal court of competent jurisdiction
and is entitled to a jury trial on request.
(c) To file an appeal under Subsection (b), the owner must:
(1) file a notice of appeal of the animal control
authority's dangerous dog determination with the court;
(2) attach a coPy of the determination from the animal
control authority; and
(3) serve a coPy of the notice of appeal on the animal
control authority by mailing the notice through the United States
Postal Service.
~ An owner may appeal the decision of the justice[,
county,] or municipal court under Subsection (b) in the [&frffie]
manner described by Section 822.0424 lao appeal for other caoeo
froffi the justice, county, or ffiunicipal court] .
SECTION 2. Section 822.0423, Health and Safety Code, is
amended by adding Subsection (c-l) and amending Subsection (d) to
read as follows:
(c-l) The court shall determine the estimated costs to house
and care for the impounded dog during the appeal process and shall
set the amount of bond for an appeal adeguate to cover those
estimated costs.
(d) An owner or person filing the action may appeal the
decision of the municipal or [court,] justice court[, or county
~] in the manner described by Section 822.0424 [provided for
the appeal of cases froffi the ffiunicipal, juotice, or county court]
SECTION 3. Subchapter D, Chapter 822, Health and Safety
Code, is amended by adding Section 822.0424 to read as follows:
Sec. 822.0424. APPEAL. (a) A party to an appeal under
Section 822.0421(d) or a hearing under Section 822.0423 may appeal
the decision to a county court or county court at law in the county
in which the justice or municipal court is located.
(b) As a condition of perfecting an appeal, not later than
the 10th calendar day after the date the decision is issued, the
appellant must file a notice of appeal and, if applicable, an appeal
bond in the amount determined by the court from which the appeal is
lof2 11116/20152:15 PM
84(R) HB 1436 - Introduced version - Bill Text http://www.legis.state.tx.us/tlodocs/84R1billtext/htm\/HBO 1436Lhtm
taken.
{cl Notwithstanding any other law, a county court or a
county court at law has jurisdiction to hear an appeal filed under
tr.is sectior..
SECTION 4. The change in law made by this Act ies only
to a determination, decision, or under Section 822.0421 or
822.0423, Health and Sa Code, as amended by this Act, or Section
822.0424, Health and Safety Code, as added by this Act, that occurs
on or after the effective date of this Act. A determination,
decision, or hearing that occurs before the effective date of this
Act is governed by the law in effect on the date the determination,
decision, or hearing occurred, and the former law is continued in
effect for that purpose.
SECTION 5. This Act takes effect ember I, 2015.
2of2 11116/20152:15 PM
FILED FOR RECORD
ti)::k ~m75e 0'1,lhe /tfl:iJ _day of
• O_-5..&O·CIOCk~m
CAUSE NU:MBER C-7919 MARYMAAGAAETWRIG1-!r . .
County Clerk, Henderson Count Ti
TIlE ST ATE OF TE:XAS X IN TIm COUNTY COURT y, eJ(as
v. X AT LAW #1 OF
Ui\.VIU HAYES x HE~DERSON COUNTY, TEXi\S
ORDER REMQVING CASE FROM JIJHY OOCKKr
On the Ilt-'h day of April, 2015, after the Court considered PLAINTIFF, THE STATE
OF TEXAS' Objc<.;lion to a jury trial, including the Motion, the Defendant's Response,
arguments of counsel to the Cm1l1, the Court tlnds tlwt Defendant is not entitled to a Jury Trial
and it IS tlu.:n:fbre o nil:red , that tius case be removed from the Jury Trial Docket and set for a
trwl before thIS COllrt on the 2yd day of April, 2015 at 9:00 am.
Henderson County Attorney
Texas Dar#24034409
Henderson County Courthouse, Room 100
Athens, Texas 75751
Phone; 903-675-6112
Fax: 903-675-6\96
Attorney for Plaintiff
c
NO.~-7919
THE STATE OP TEXAS § IN THE COUNTY COURT AT LAW
§
VS. § NO.1
§
DAVID HAYES § HENDERSON COUNTY, TEXAS
fINDINGS OP PACT AND CONLUSIONSOF LAW
(Denial of Request for Jury Trial)
PIN DINGS OP PACT
1. This case was heard on appeal from the "Order to Destroy Dangerous Doges)"
dated January 26,2015, and entered by the Justice Court, Precinct 2, of Henderson County,
Texas, the Honorable Kevin Pollock presiding.
2. "Defendant's Jury Demand" was filed and the jury fee was paid on February 19,
2015.
3. On April 16,2015, the trial court denied the request for a jury trial. and set the
matter for a bench trial instead.
CONCLUSIONS OF LAW
1. In the instant appeal of the "Order to Destroy Dangerous Dog(s)", as set out
above. there is no right to a jury trial pursuant to the Texas Health & Safety Code, or any other
relevant provision of state law.
Signed May 5. 2015.
146
D
NO. <;:."791'1
;.'" 1c j; `` ',' - IF; j !: 2 S
THE STATE OF TEXAS § IN THE COUNTY COURT AT LAW
§
VS. § NO.1
§
DAVID HAYES § HENDERSON COUNTY, TEXAS
CAME ON to be considered the trial de novo appeal from JP 2 of Henderson County.
Texas, on April 23n.1 and 29 th, 2015,
Appellant. David Hayes, appeared in person and by and through attorney of record,
James Owen. and announced ready for trial.
Appellee, the State of Texas, appeared by and th,"C/ugh attorney of record, Clint Davis,
and announced ready for trial.
The Court finds that it has jurisdiction of this appeal. as well as the parties involved.
After receiving evidence and ul'gument of counsel. the Court makes the following findings:
The C(lUrt finds that on January 19, 2015, in Henderson COllnty, Texas, one pit-bull
knuwn as "Jewel". one pit-bull known as "Puppy", and one pit-bull known as "Mamas", are
Dangerous Dogs as defined by Texas Health a nd Safety Code Section 822.041 (2). a no that it is
in the best interest uf the dogs, and that for the public health and safety, that the dogs should
be destroyed in a humane manner, pursuant to state law.
The Comt finds that the owner of the dogs is David Hayes,
The Court finds that as a result of an unprovoked attack. Mikel "Christopher"
Kirkpatrick suffered Set'jOlls bodily injury as defined by Texas Health and Safety Code Section
822,001(5).
E
The Court finds that as a diI-ect result of housing the dogs during the pendency of this
case, the County of Henderson has incurred expenses in the total amount of $2,780.00.
As a result of sald findings, IT IS ORDERED AND DECREED as follows;
The Animal Control Office with the Henderson County Sheriff's Department is
ORDERED to humanely destroy the following Dangerous Dogs: one pit-bull known as "Jewel",
one pit-bull known as "Puppy", and one pit-bull known as "Mamas", pursuant to Texas Health
and Safety Code Section 822.004.
It is further ORDERED that David Hayes pay to Henderson County, Texas, through tlw
County Attonlcy's Office of Henderson County, Texas, the total amount of $2,780.00 within 30
days of the signing of this order. Said amollnt is taxed as costs of this appeal.
All other relief not expressly granted is DENIED.
~4f_
Jridgc Pr'esiding