The new dog laws of Texas
On September 1, 2007, two significant new dog laws took effect in Texas. Their intent is to help keep dangerous dogs off the streets, and prevent dogs from becoming dangerous in the first place. Although these laws were prompted by the killing of Lillian Stiles, both laws have very serious shortcomings. These are discussed below.
The so-called "Lillian Stiles Law" was introduced by Rep. Dan Gattis. It increases the jail time for owners who fail to reasonably secure their dogs, resulting in serious bodily injury or death. The new law will do absolutely nothing for victims, however, who will have to pay their own medical bills, will receive nothing to minimize the effect of their scars, and will not be compensated for pain, suffering, lost income, loss of earning capacity, disability or anything else.
During the debates about this new law, much appeared in the press about the Gattis bill and the "one bite rule." Everything that was said and written about how the bill would change the "one bite rule" was misleading. "Lillian's Law" neither eliminates the "one bite rule" nor makes any substantial change to the existing law of Texas, with one exception: it contains the harshest criminal penalties in the nation for dog owners.
There are three glaring errors in "Lillian's Law." The first one is cruelly ironic: it preserves the defense that enabled Jose Hernandez to escape conviction for the death of Lillian herself. Conviction is not possible unless there is proof beyond a reasonable doubt that the dog owner knew or should have known that his dog was going to cause death or severe bodily injury. In the Lillian Stiles case, Hernandez convinced the jury that he did not have the necessary culpability because he was unaware that his six pit bull/Rottweiler mixes were dangerous. That loophole is in the first subpart of section (A) (i.e., Sec. 822.005(A)(1)), which requires proof of "criminal negligence." Penal Code sec. 6.03(d) defines "criminal negligence" as follows:
A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
Therefore, conviction under "Lillian's Law" requires proof of criminal culpability on the part of the defendant. The prosecutor must establish that the dog owner ought to have been aware of a substantial and unjustifiable risk that a person would be killed or severely injured by his dog. This loophole enabled Jose Hernandez to be found not guilty for the brutal mauling of Lillian Stiles.
There is another terrible irony in "Lillian's Law." By requiring prosecutors to prove that the defendant was "aware of a substantial and unjustifiable risk," this is the same type of proof required under the "one bite rule." However, the bill arguably requires even greater proof than the old English rule. Under the traditional "one bite rule," a dog bite victim must prove that the dog owner was aware of the dog's tendency to bite people, even if no bite occurred in the past. "Lillian's Law" requires proof of awareness of the risk of serious bodily injury or death, far more than just a bite. Texans therefore have a law that is harder to apply than the old English precedents which the majority of American states have rejected.
Secondly, "Lillian's Law" deals only with a dog running at large, or a dangerous dog that is not confined. If one of those conditions are not met, the law does not apply at all. For example, if a child gets bitten by the neighbor's dog while the child is playing with the neighbor's kids, in their back yard, there would be no offense (and neither civil nor criminal liability) unless there is sufficient proof that the dog had the tendency to bite people and the owner was aware of it.
Third, the second subpart of section (A) (i.e., Sec. 822.005(A)(2)) requires proof that the dog already had its "one free bite." In other words, it is literally about a dangerous dog. This adds nothing to dog bite law in general. Interestingly, however, there is something that it takes away: a defense is created against injuries caused by a dangerous dog that is enclosed. While this might appear fair, it is more restrictive than the common law doctrine established by those English judges in the 1600s. The "one bite rule" holds that keeping a dangerous dog makes the owner responsible for any and all injuries caused by the dangerous behavior that the dog was known for, which in this context would be the tendency to bite people. Under the "one bite rule," there is no automatic defense if the vicious dog is in an enclosure. "Lillian's Law" creates such a defense.
Perhaps this law will aid prosecutors and dog bite victims under some limited circumstances. However, the effect of passing the wrong law is that little or no attention will later be given to enacting the right one. This is the wrong law because it does not go far enough. Aimed at criminalizing certain specific behavior, it is a penal provision that neither mentions nor does away with the inhumane "one bite rule." Therefore, it can hardly be expected to deter irresponsible dog owners, who will continue to be protected from liability until the second mauling or killing by their dogs.
Unfortunately, the sense of outrage and fear that fueled the passage of the Gattis bill was wasted on a poorly drafted criminal provision. The state still needs to completely abolish the "one bite rule." Changes need to be made to both the civil and criminal laws. Texas needs to align itself with the majority of American states (31 states) that have already made the first bite a tort, instead of England (the home of the "one bite rule"). When irresponsible dog owners learn that they will be held fully responsible for all the harm that they cause, including the medical bills and other losses, it is very likely that the state will see fewer dangerous dogs on the streets.
Unlawful restraint of dog
It now is well established that chaining a dog is cruel to the dog and creates danger to people, because dogs normally become more aggressive when chained. "Chaining" means tying up the dog to an object such as a tree, a stake, a parking meter, etc. To read more about chaining, see Why Dogs Bite People.
George "Buddy" West introduced an anti-chaining law that unfortunately was severely watered down in the legislative process. Originally, the law contained a section stating that a dangerous dog should be tied up no longer than is necessary to protect other's safety. This is the recommended language for such a law. As passed, however, the new law prohibits the restraint of a dog to a permanent object at night, or in bad weather conditions, or within 500 feet of a school.
Texas still allows a dog to be chained, which is bad policy -- and dangerous to kids and others who are routinely attacked by dogs which have been chained.