holding that the Legislature’s decision in 1973 to transfer certain criminal statutes from the Penal Code to the Revised Civil Statutes was “purely a housekeeping measure, which was not meant to change the substantive meaning of the statute”
How later courts described this case
- holding that the Legislature’s decision in 1973 to transfer certain criminal statutes from the Penal Code to the Revised Civil Statutes was “purely a housekeeping measure, which was not meant to change the substantive meaning of the statute”
- noting that "courts have held that the negative-implication canon of construction should be employed' with great caútion,” and that "the force of any negative implication ... depends on context. The canon does not apply ‘unless it is fair to suppose that [the legislature] considered the unnamed possibility and meant to say no to it.' ”
- observing that the general principle of error preservation that the party must inform the trial judge about “what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it” applies to jury charge issues
- recognizing that the holding in Posey was based in part on the “idea that the decision to request a defensive issue is a matter of trial strategy”
Written by the judges who cited it.
The opinion
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DISSENTING OPINION
Meyers, J.,
filed a dissenting opinion.
I disagree with the majority that Tex. Health & Safety Code § 822.013(a) provides a defense to criminal prosecution. The goal of this statute was to protect farmers and ranchers against the loss of their livelihood by allowing them to protect their livestock from attacking dogs without fear of liability to the dog’s owner. House Research Organization, Bill Analysis, Tex. H.B. 151, 78th Leg., R.S. (2003). This was never intended to allow individuals in residential neighborhoods to murder a neighbor’s dog after an attack with criminal impunity. If we allow this to be used as a criminal defense, what are its limits? Can an individual murder a dog for a single bite, or does it take multiple bites to constitute an “attack”? Is it still a valid defense if there was no actual harm done to the individual’s pet? If an individual is able to get his pet away from the attacking dog, as in this case, how long can he wait before going back to murder the attacking dog and still employ this defense? Can the individual trespass on the attacking dog owner’s property to carry out the murder of the dog? What if the attacking dog’s owner is present and chooses to physically defend his dog from the individual? Must the murder be humane or can any technique be used? These questions illustrate that the provision is too broad to be applied as a criminal defense, and permitting it to be used as such will enable defendants to escape conviction for the unjustified murders of dogs.
Allowing for this defense encourages individuals to take (what they perceive as) justice into their own hands. I do not believe this provision was ever intended to be a defense to criminal liability and I disagree with the determination that it is such a defense. I would reverse the judgment of the court of appeals and therefore, I respectfully dissent.