Why We Need Breed Specific Legislation in Texas
July 27th, 2011
Current dog attack laws are inadequate to protect the public. Since the Lillian Stiles case occurred, numerous laws have been passed regarding dog bites, but they are all still inadequate to deter irresponsible dog owners from acting irresponsibly. None of them address dog breeds. In fact, breed specific legislation in Texas is prohibited.
Lillian Stiles was an elderly lady who was drug from her riding lawnmower in her own yard by a pack of dogs and mauled to death. Public outcry demanded justice. Unfortunately, at the time, there was no criminal law allowing for jail time for an irresponsible owner of a vicious or dangerous dog. The owner walked away free.
At the time of her death, Texas law death with dog attacks mainly through civil negligence causes of action. The problem with this is that a dog owner has no civil responsibility for his dog’s attack unless he ‘has knowledge” that he owns a dangerous dog. Since no dog owner is dumb enough to admit their dog is dangerous thereby bringing responsibility upon themselves, the only way to prove the knowledge on the part of the owner, is to prove the dog had bitten before. This is what is commonly known as “the one free bite rule.” The first bite gives the owner notice that he must act to prevent a second attack. Not until he fails to act to prevent the second attack, does he have responsibility under civil law. Thus, the dog and owner get one free bite.
The Inadequacies of Lillian’s Law
As a result of this, the legislature rushed to pass what is known as “Lillian’s Law.” Lillian’s Law is not breed specific legislation. Unfortunately, this proved to be little more than a political move to give the appearance government was reacting to public outcry. The truth of the matter is, that law is virtually unenforceable because it requires you prove the owner acted with criminal negligence. Since the “one free bite rule” is the development of civil negligence law, Lillian’s law incorporates the exact same standard of knowledge that allows dogs and their owner’s one free bite under civil law. In fact, the standard is actually higher to prove criminal negligence than ordinary negligence. Thus the law does nothing to deter the first fatal attack.
State and Local Dog Attack Laws
States, municipalities and Counties have also enacted laws regarding dogs. Unfortunately, they also incorporate the knowledge standard—the owner must know the dog is dangerous and, once he does, he is strictly liable. Thus, just like the civil law failure, State laws make dog owners strictly liable for the second attack by a dog, but they get a free pass for the first. In some counties and cities, there are leash laws that make strict liability kick in if the dog is “at large” in public and off a leash. But these leash laws are not uniform. Some don’t apply if the dog is not intentionally allowed to “run at large.” If you are fortunate enough to be in a City where the leash laws are strong, you may be protected if the dog attacks you outside, or off the property–depending on how it’s written. If it is a weak leash law, you are out of luck. If you are in an unincorporated city, you can look to the county laws, but they typically mimic the state law–the first bite gets a free pass. Also, if the second bite is from a different dog owned by the same owner–the owner gets a pass for that dog too. Thus, these codes are inconsistent at best and often not useful to a dog bite attorney trying to protect his client.
The “Ignorance” Defense
Suffice it to say, the penal laws are not deterring the conduct because they are based upon knowledge that a specific dog is dangerous due to prior conduct and someone else has to prove the owner’s level of knowledge. The excuse: “I didn’t know my pit bull, rottweiler or presa canario was dangerous because he hasn’t bit anyone before” should never be a defense. It is dangerous because it has the ability to inflict serious damage if it so chooses. Responsible ownership means keeping it in such a way it does not have an opportunity to inflict damage on members of the general public, whether it has done so before or not.
The Laws need to change to prevent the “ignorance” defense as to dogs that have the ability to inflict death and/or serious injury. You can achieve this by 1) adopting breed specific legislation in Texas that defines certain dogs or as dangerous by statute or ordinance and raises the responsibility standard for those dogs, 2) enacting breed specific legislation in Texas banning the dogs that are dangerous breeds, 3) making all dog bites strict liability, or 4) throwing the owner in prison and making them civilly responsible when their dog attacks someone regardless of the circumstances.
The Texas BSL Ban
Breed specific legislation cannot happen under current Texas law due to the following statute:
§ 822.047. LOCAL REGULATION OF DANGEROUS DOGS. A county or municipality may place additional requirements or restrictions on dangerous dogs if the requirements or restrictions: …are not specific to one breed or several breeds of dogs…
Furthermore breed specific legislation banning all dangerous breeds has the potential for a “slippery slope” effect and punishes those who have dogs that fall in the dangerous class despite them having had no issues.
Similarly, many will argue imposing a high standard of knowledge on all dog owners as in option #3 is unfair since deadly attacks by certain small breeds like weenie dogs and shih tzu’s are extremely rare, however this would be equally effective in solving the ignorance-defense problem. Option #4 will run into constitutional issues depriving someone of liberty without proof of a culpable mental state.
Thus, the most common sense way to address the issue seems to be option #1–to pass a law that identifies certain dog breeds as ‘dangerous dogs’ as a matter of law. The owner would then be deemed to have knowledge that the dog is dangerous and thus, no more free bite. Yes, it requires someone to sit down and decide which breeds to include and which to exclude, but nobody ever said the important decisions would all be easy.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.