What does Texas law require before a court can seize or order the destruction of a dog that attacked someone?

Plain-English summary

Texas regulates dogs that hurt people through chapter 822 of the Health and Safety Code. A state representative who chaired the House Urban Affairs Committee asked the AG three questions about how those procedures work, and the answers turn on the difference between two parts of the chapter: the "dangerous dog" rules in subchapter D, and the more serious death-or-serious-injury seizure and destruction procedure in sections 822.002 and 822.003.

The first question was about the "sworn complaint" that lets a justice, county, or municipal court issue a warrant to seize a dog under section 822.002. Does the person who swears to it need personal knowledge of the attack? The AG said no. The statute does not require personal knowledge, and it specifically allows a county attorney, a city attorney, or a peace officer to file the complaint, people who usually were not there when the dog bit someone. The AG pointed to a 2019 Texas Supreme Court decision making the same point about complaints by the Texas Medical Board: requiring personal knowledge "would make little sense" when the official filing the complaint typically would not have it. So a court is unlikely to read a personal-knowledge requirement into section 822.002.

The second question was whether the State has to prove the attack was "unprovoked" before a court can order a dog destroyed under section 822.003. The AG said no, and explained why. "Unprovoked" appears in the definition of a "dangerous dog" in section 822.041, which is part of subchapter D and covers dogs that cause (or are reasonably believed will cause) bodily injury. Sections 822.002 and 822.003 are different. They deal with a dog that "caused the death of or serious bodily injury to a person," a higher level of harm, and they apply whether or not the dog was ever labeled "dangerous." Those sections never use the phrase "dangerous dog," so the "unprovoked" element from the dangerous-dog definition is not something a court must find before ordering destruction under section 822.003.

The third question, really a cluster of questions, was about the rule in section 822.003(a) that the court must hold a hearing within ten days after the seizure warrant issues. Does that deadline improperly intrude on a court's inherent power to manage its own docket? The AG said no. The Texas Constitution lets the Legislature prescribe how courts function, and the Legislature has set similar mandatory hearing deadlines in family-violence, election-contest, and child-welfare cases that courts have upheld against separation-of-powers challenges. The AG then parsed what the deadline requires and what it does not. Because "to hold" a hearing means to actually conduct it, the court has to both set and conduct the hearing within ten days; it cannot satisfy the statute by merely calling the case and instantly continuing it. But the statute does not set any deadline for the court to rule, and it does not otherwise limit the court's authority to manage its docket. And if a hearing does slip past the ten-day mark, nothing in chapter 822 strips the court of jurisdiction; the AG relied on U.S. Supreme Court cases holding that a missed hearing deadline, without a stated consequence, does not disable the judge from acting. The remedy for delay is for a party to seek mandamus to compel the court to hold the hearing.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

For animal control authorities and the prosecutors who file these complaints, the opinion described a workable procedure: the official swearing to a seizure complaint under section 822.002 did not need to have personally witnessed the attack, which matters because the statute contemplates officers filing on reports from others. For courts handling a destruction case under section 822.003, the opinion's reading was that the case turned on whether the dog caused death or serious bodily injury, not on the subchapter D "unprovoked" element, so provocation was not a required finding in that proceeding (though the opinion noted an owner could raise provocation in a separate dangerous-dog determination). On the timing questions, the opinion told courts the ten-day hearing window was a real, enforceable deadline that required conducting the hearing, not just docketing it, while preserving the court's ordinary control over continuances and the timing of its ruling. It also told the parties that a late hearing did not void the court's authority, but that mandamus was available to push a delaying court to act.

Common questions

Q: Does the person who swears out a dog-seizure complaint have to have seen the attack?
A: No. The AG concluded section 822.002 does not require the affiant to have personal knowledge, and a court is unlikely to imply one, especially since the statute lets attorneys and peace officers file the complaint.

Q: Does the State have to prove a dog attack was 'unprovoked' to have a dog destroyed?
A: Not under section 822.003. The AG said "unprovoked" is part of the separate "dangerous dog" definition in subchapter D, not the death-or-serious-injury destruction procedure.

Q: What is the difference between a 'dangerous dog' case and a destruction case?
A: A dangerous-dog determination under subchapter D covers dogs that cause or are reasonably believed will cause bodily injury and triggers registration, restraint, and insurance duties. The section 822.003 destruction procedure applies to a dog that caused death or serious bodily injury, regardless of any prior dangerous-dog label.

Q: Can the court grant a continuance past the ten-day hearing deadline?
A: The AG said the court must conduct the hearing within ten days, not just call and continue it, but the statute does not bar the court from managing its docket, and a hearing held after ten days does not deprive the court of jurisdiction.

Q: What if the court does not hold the hearing in time?
A: A party may seek mandamus to compel the court to hold the hearing. A missed deadline does not, by itself, end the case.

Background and statutory framework

Chapter 822 of the Health and Safety Code regulates dogs that attack or endanger people. Subchapter A (sections 822.001-.007) includes the seizure procedure in section 822.002, under which a justice, county, or municipal court "shall" order seizure and issue a warrant on a sworn complaint that the dog caused death or serious bodily injury plus a showing of probable cause. Section 822.003 governs the hearing and provides in subsection (d) that the court must order the dog destroyed if it finds the dog caused a person's death by attacking, biting, or mauling, and in subsection (a) that the hearing "must be held not later than the 10th day after the date on which the warrant is issued." Subchapter D separately defines a "dangerous dog" (section 822.041(2)) by reference to an "unprovoked" attack or acts, and imposes registration, restraint, and insurance requirements (section 822.042), with an appeal route (section 822.0421(b)-(d)). On the personal-knowledge question, the AG contrasted section 822.002 with Texas Rule of Civil Procedure 166a(f) and Texas Rule of Evidence 602 (which do require personal knowledge) and followed Aleman v. Tex. Med. Bd., 573 S.W.3d 796 (Tex. 2019). On the docket-control questions, it applied the inherent-authority principle of Landis v. N. Am. Co., 299 U.S. 248 (1936), the separation-of-powers framework of Texas Constitution article II, section 1, and Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001), the standard from Hebert v. Hopkins, 395 S.W.3d 884 (Tex. App.-Austin 2013, no pet.), and the legislative-authority provisions of article V, sections 7 and 16, noting analogous upheld deadlines in Family Code section 84.001(a), Election Code section 232.012(d), and Tex. Dep't of Family & Protective Servs. v. Dickensheets, 274 S.W.3d 150 (Tex. App.-Houston [1st Dist.] 2008, no pet.). It drew the non-jurisdictional conclusion from Dolan v. United States, 560 U.S. 605 (2010), and United States v. Montalvo-Murillo, 495 U.S. 711 (1990), and contrasted Code of Criminal Procedure article 46C.262(b), (e).

Citations and references

Statutory provisions:

• Tex. Health & Safety Code § 822.002; § 822.003; § 822.041; § 822.042
• Tex. R. Civ. P. 166a(f); Tex. R. Evid. 602
• Tex. Const. art. II, § 1; art. V, §§ 7, 16
• Tex. Fam. Code § 84.001(a); Tex. Elec. Code § 232.012(d); Tex. Code Crim. Proc. art. 46C.262(b), (e)

Cases:

• Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 801 (Tex. 2019)
• Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)
• Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001)
• Hebert v. Hopkins, 395 S.W.3d 884, 900 (Tex. App.-Austin 2013, no pet.)
• Tex. Dep't of Family & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 154-59 (Tex. App.-Houston [1st Dist.] 2008, no pet.)
• Dolan v. United States, 560 U.S. 605, 611 (2010)
• United States v. Montalvo-Murillo, 495 U.S. 711, 722 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0284
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0284.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 6, 2020

The Honorable Angie Chen Button
Chair, Committee on Urban Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0284

Re: Construction of statutes related to procedures for addressing dangerous dogs under chapter 822 of the Health and Safety Code (RQ-0294-KP)

Dear Representative Button:

You ask multiple questions about the construction of provisions in chapter 822 of the Health and Safety Code, which governs the regulation of dogs that attack persons or are a danger to persons.[1] Section 822.002 establishes a procedure for authorizing an animal control authority to seize a dog in certain circumstances:

A justice court, county court, or municipal court shall order the animal control authority to seize a dog and shall issue a warrant authorizing the seizure:

(1) on the sworn complaint of any person, including the county attorney, the city attorney, or a peace officer, that the dog has caused the death of or serious bodily injury to a person by attacking, biting, or mauling the person; and

(2) on a showing of probable cause to believe that the dog caused the death of or serious bodily injury to the person as stated in the complaint.

TEX. HEALTH & SAFETY CODE § 822.002(a). You first ask about the meaning of "sworn complaint" in that section. Request Letter at 1. Specifically, you question whether this statute requires "the affiant to have personal knowledge of the facts contained therein." Id.

The plain language of subsection 822.002(a) requires the person making the sworn complaint to affirm that the dog caused death or serious injury to a person. However, the statute does not expressly require that the affiant have "personal knowledge" of those facts. Compare TEX. HEALTH & SAFETY CODE § 822.002(a), with TEX. R. CIV. P. 166a(f) (requiring supporting and opposing affidavits to a summary judgment motion "be made on personal knowledge"), and TEX. R. EVID. 602 (allowing a witness to testify "only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter"). Moreover, subsection 822.002(a) expressly authorizes a county or city attorney or a peace officer to file the sworn complaint. TEX. HEALTH & SAFETY CODE § 822.002(a). Such individuals typically will not have personal knowledge of the facts underlying a dog attack, and yet the Legislature authorized those officers to file the complaints. See id. In addressing a similar question about whether a formal complaint by the Texas Medical Board needed to be based on personal knowledge, the Texas Supreme Court explained that it "would make little sense if personal knowledge were required because board representatives typically will not have such knowledge of the facts underlying" an alleged violation. Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 801 (Tex. 2019). Emphasizing that the statute at issue did not give the formal complaint evidentiary value in the proceedings on the merits, the Court concluded that personal knowledge was not required to file the complaint. See id. Likewise, here, the plain language of section 822.002(a)(1) does not require that the sworn complaint be based on personal knowledge, and a court is unlikely to imply such a requirement. See id.; TEX. HEALTH & SAFETY CODE § 822.002(a)(1).

With regard to your second question, you ask whether non-provocation constitutes an element which one must prove before a court may order a dog destroyed under section 822.003 of the Health & Safety Code. Request Letter at 1. In connection with that question, you point to subchapter D of chapter 822, which governs "Dangerous Dogs." See id. Section 822.041 defines the phrase "dangerous dog" as a dog that

(A) makes an unprovoked attack on a person that causes bodily injury and occurs in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own; or

(B) commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.

TEX. HEALTH & SAFETY CODE § 822.041(2). The Legislature authorized animal control authorities to determine that a dog is dangerous, and upon such determination, the owner of the dangerous dog must comply with multiple statutory requirements, including registration of the dangerous dog, restraint, and carrying additional insurance. See id. § 822.042.[2] Under the Legislature's definition of "dangerous dog," an owner could raise the issue that a dog's attack or act was provoked and therefore does not support a dangerous dog determination.

But apart from subchapter D, subchapter A includes general provisions governing the regulation of animals and dogs that attack persons or are a danger to persons. See id. §§ 822.001-.007. Sections 822.002 and 822.003 establish a procedure by which courts address allegations that a dog "caused the death of or serious bodily injury to a person," a level of harm beyond that required for a dangerous dog determination under subchapter D. Id. §§ 822.002-.003 (emphasis added). Under section 822.003(d), a court must order "the dog destroyed if the court finds that the dog caused the death of a person by attacking, biting, or mauling the person." Id. § 822.003(d). Notably, neither section 822.002 nor 822.003 utilizes the phrase "dangerous dog." Instead, the procedures in section 822.003 apply to any dog that "caused the death of or serious bodily injury to a person by attacking, biting, or mauling the person," regardless of whether the dog has been designated previously as dangerous through the procedure outlined in subchapter D. Id. §§ 822.002-.003; cf. id. § 822.041(2) (defining "dangerous dog" as one that causes any bodily injury or that is reasonably believed will do so). Thus, if a court finds the dog caused the death of or serious bodily injury to a person by attacking, biting, or mauling the person, the fact that a dog's attack was unprovoked is not an element a court must find before ordering a dog destroyed under section 822.003. See id. §§ 822.002-.003.

In your final question, you ask about the requirement in subsection 822.003(a) that a court conduct a hearing within ten days after the date on which a warrant is issued to seize a dog that caused death or serious bodily injury to a person. Request Letter at 2. You ask whether this provision limits "the court's inherent authority to control its docket." Id. Courts possess inherent power to control the disposition of the causes on their docket with economy of time and effort for themselves, counsel, and the litigants. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). And the separation-of-powers doctrine prohibits one branch of government from exercising power inherently belonging to another branch. TEX. CONST. art. II, § 1; Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001). But "[o]nly when the executive or legislative branch interferes with the functioning of the judicial process in a field constitutionally committed to the control of the courts does a constitutional problem arise." Hebert v. Hopkins, 395 S.W.3d 884, 900 (Tex. App.-Austin 2013, no pet.).

The Texas Constitution authorizes the Legislature to prescribe the manner in which courts function: "The Court . . . shall hold the regular terms . . . in such manner as may be prescribed by law." TEX. CONST. art. V, § 7 (referring to district courts); see also id. art. V, § 16 (giving county courts "judicial functions as provided by law"). Consistent with this authority, in various contexts the Legislature has established nondiscretionary court deadlines to ensure efficient resolution of legal matters. See, e.g., TEX. FAM. CODE § 84.001(a) (requiring court to set a hearing for a protective order within a specific time period); TEX. ELEC. CODE § 232.012(d) (requiring court to set a trial for a contest of office within a set period). Courts regularly uphold such statutory deadlines as a valid exercise of legislative power. See, e.g., Tex. Dep't of Family & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 154-59 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (upholding, against a separation-of-powers challenge, a statute that required dismissal after a set period of time of any case involving a child in the care of the Department of Family and Protective Services). Thus, the deadline by which a court must conduct a hearing under section 822.003 is not an unlawful statutory restriction on the court's authority to control its docket.

You also ask whether this provision allows a court to "call the case on the docket and immediately continue the case to a later date on its own authority." Request Letter at 2. Section 822.003 requires that the "hearing must be held not later than the 10th day after the date on which the warrant is issued." TEX. HEALTH & SAFETY § 822.003(a) (emphasis added). In this context, "to hold" means "to conduct or preside at." BLACK'S LAW DICTIONARY 848 (10th ed. 2009). Thus, the plain language of section 822.003 requires not simply setting a hearing but also conducting a hearing within the statutory time period. However, the statute does not set a time by which the court shall rule, nor does it limit a court's ability to otherwise manage its docket. Cf. TEX. CODE CRIM. PROC. art. 46C.262(b), (e) (requiring court, within 14 days, to hold a hearing and rule on a request to modify treatment orders following acquittal by reason of insanity).

Finally, you ask if it would "impact prosecution of the case for the court to grant a motion for continuance filed by a party." Request Letter at 2. In reviewing deadlines imposed on a court to conduct hearings in various types of cases, the U.S. Supreme Court has explained that often "a deadline seeks speed by creating a time-related directive that is legally enforceable but does not deprive a judge . . . of the power to take the action to which the deadline applies if the deadline is missed." Dolan v. United States, 560 U.S. 605, 611 (2010); see also United States v. Montalvo-Murillo, 495 U.S. 711, 722 (1990) (explaining that a missed deadline for holding a bail detention hearing does not require the judge to release the defendant). Consistent with this authority, no provision in chapter 822 deprives a court of jurisdiction if the hearing required by section 822.003(a) is held outside of the ten-day period. See Dolan, 560 U.S. at 611 (explaining that where a statute does not specify a consequence for noncompliance with a timing provision, courts will not ordinarily impose their own coercive action). That conclusion, however, does not prevent a party from seeking mandamus to compel a court's compliance with a statutory deadline.

SUMMARY

The plain language of section 822.002 of the Health and Safety Code does not require an affiant of a sworn complaint alleging that a dog caused death or serious injury to a person to have personal knowledge of that event, and a court is unlikely to imply such a requirement.

If a court finds that a dog caused death or serious bodily injury to a person, the fact that the dog's attack was unprovoked is not an element a court must find before ordering a dog destroyed under section 822.003.

The Legislature's imposition of a ten-day deadline by which a court must conduct a hearing under section 822.003 is not an unlawful statutory restriction on the court's inherent authority to control its docket. The plain language of section 822.003 requires that the case be called and a hearing conducted within the ten-day statutory deadline, but it does not set a deadline by which the court must rule or otherwise limit the court's authority to continue a hearing once called. No provision in chapter 822 deprives a court of jurisdiction if the hearing required by subsection 822.003(a) is held outside of the ten-day period, but a party could seek mandamus to compel a hearing if a court does not hold a hearing within that period.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Angie Chen Button, Chair, House Comm. on Urban Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (July 9, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] A dog owner may appeal an animal control authority's dangerous dog determination to a justice, county, or municipal court. TEX. HEALTH & SAFETY CODE § 822.0421(b)-(d).