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Chapter 42

Charges

Chapter 42

Disorderly Conduct and Related Offenses

42.37  Instruction—Misdemeanor Cruelty to Nonlivestock Animal

LAW SPECIFIC TO THIS CASE

The state accuses the defendant of having committed the offense of cruelty to nonlivestock animals.

Relevant Statutes

A person commits the offense of cruelty to nonlivestock animals if the person intentionally, knowingly, or recklessly fails unreasonably to provide necessary food, water, care, or shelter for an animal in the person's custody.

Conduct is not a crime if it is either—

  1. a generally accepted and otherwise lawful form of conduct occurring solely for the purpose of or in support of—
    1. fishing, hunting, or trapping; or
    2. wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; or
  2. a generally accepted and otherwise lawful animal husbandry or agriculture practice involving livestock animals.

Definitions

Animal

“Animal” means 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.

Custody

“Custody” includes responsibility for the health, safety, and welfare of an animal subject to the person’s care and control, regardless of ownership of the animal.

Necessary Food, Water, Care, or Shelter

“Necessary food, water, care, or shelter” includes food, water, care, or shelter provided to the extent required to maintain the animal in a state of good health.

Intentionally Failing to Provide Necessary Food, Water, Care, or Shelter for an Animal

A person intentionally fails to provide necessary food, water, care, or shelter for an animal if it is the person’s conscious objective or desire to fail to provide necessary food, water, care, or shelter for an animal.

Knowingly Failing to Provide Necessary Food, Water, Care or Shelter for an Animal

A person knowingly fails to provide necessary food, water, care, or shelter for an animal if the person is aware that he is failing to provide the animal with necessary food, water, care, or shelter.

Knowing an Animal Is in the Person’s Custody

A person knows an animal is in the person’s custody if the person is aware that the animal is in the person’s custody.

Being Reckless about Whether the Animal Is in the Person’s Custody

A person is reckless about whether an animal is in the person’s custody if the person is aware of but consciously disregards a substantial and unjustifiable risk that the animal is in the person’s custody. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise under all the circumstances as viewed from the defendant’s standpoint.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, seven elements. The elements are that—

  1. in [county] County, Texas, on or about [date], [insert specifics, e.g., Dog # 1] was in the defendant’s custody;
  2. [insert specifics, e.g., Dog # 1] was an animal;
  3. the defendant knew or was reckless about the fact that the animal was in his custody;
  4. the defendant failed to provide necessary food, water, care, or shelter for [insert specifics, e.g., Dog # 1];
  5. the defendant’s failure was intentional or knowing;
  6. the defendant’s failure was unreasonable; and
  7. the conduct constituting the offense was neither—
    1. a generally accepted and otherwise lawful form of conduct occurring solely for the purpose of or in support of—
      1. fishing, hunting, or trapping; or
      2. wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; nor
    2. a generally accepted and otherwise lawful animal husbandry or agriculture practice involving livestock animals.

    You must all agree on elements 1, 2, 3, 4, 5, 6, and 7 listed above.

    If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of the seven elements listed above, you must find the defendant “not guilty.”

    If you all agree the state has proved, beyond a reasonable doubt, each of the seven elements listed above, you must [find the defendant “guilty”/next consider whether the defendant is not guilty because of the defense of [insert defense]].

    [Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]

Comment

The court of criminal appeals often looks to the gravamen of the offense to decide to which conduct elements an explicit culpable mental state applies. Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015). For animal cruelty under Tex. Penal Code § 42.092(b)(3), the Committee concluded that the gravamen is the failure to provide the animal with the necessities of life. Also, under McQueen, the general rule is that when the circumstances of the conduct render specific conduct unlawful, a mens rea must apply to that circumstance. McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989). Although no case applies McQueen to this statute, the Committee believes courts would most likely do so, because failing to provide is not a crime unless the animal is in the person’s custody. See White v. State, 509 S.W.3d 307, 312–13 (Tex. Crim. App. 2017). As a result, the instruction attaches a mens rea both to the gravamen of the offense—failing to provide—and a separate mens rea to the circumstances of the offense—the fact of the defendant’s custody of the animal.

Moreover, the culpable mental states of intentional and knowing both can apply to the nature of conduct, but reckless cannot, while intentional cannot be a mental state of the circumstances, though knowing and reckless mental states can. Tex. Penal Code § 6.03. Although the statutory language in section 42.092 is not precise on the issue, the Committee decided the most accurate reflection of the law required a twofold clarification. First, the gravamen of the offense—the defendant’s failure—must be committed intentionally or knowingly. Second, the defendant must have knowledge of or be reckless about circumstances of the offense—the fact of the defendant’s custody of the animal.

All Committee members believed it appropriate to include recklessness as the mens rea for the custody element. The majority believed that knowledge also attached under the reasoning of McQueen, the statutory language including knowledge as a mens rea, and the applicability of knowledge to circumstances elements. Other members believed that under Penal Code section 6.02, only recklessness should attach, given McQueen’s finding that a mens rea was to be implied and considering the awkward grammatical construction of the statute that did not easily allow for a transfer of the mens rea recitation down through each elemental recitation (the so-called “traveling mens rea” issue). See State v. Ross, 573 S.W.3d 817, 824 (Tex. Crim. App. 2019) (“[T]here remains the question of ‘how far down the sentence’ the culpable mental state of ‘intentionally or knowingly’ travels.”). The distinction, however, may be immaterial. Under either theory, the state only needs to allege or prove recklessness, because recklessness is a lesser mens rea fully included in the knowledge mens rea.

The Committee also considered the issue of a mental state regarding the unreasonableness of the defendant's failure and concluded that the complexity of stacking a mental state onto this reasonableness standard was unworkable. The Committee also believed that reasonableness was most likely measured as an objective standard, to which a mens rea did not easily attach in this case. But see Ross, 573 S.W.3d at 824–25 (attaching knowledge mens rea in disorderly conduct to the element “objectively likely to frighten an ordinary person”).