Can a Virginia town or county legally run a Trap-Neuter-Release program for feral cats?

Plain-English summary

The Town of Front Royal's attorney asked the AG whether Front Royal and Warren County could operate a Trap-Neuter-Release (TNR) program for feral cats. The proposed program would humanely trap feral cats, sterilize them, and return them to where they were captured or "some other more suitable place in the wild." The town wanted the AG to bless three pieces of the program: humane trapping, sterilization, and release.

The AG split the answer cleanly. Trapping: yes. Sterilization: yes. Release back to the wild: no.

Trapping is fine because the statutes already authorize animal control officers to "capture and confine" companion animals running at large, and § 3.2-6543 lets a locality adopt parallel ordinances. Feral cats are companion animals under § 3.2-6500, so a locality may by ordinance authorize their capture.

Sterilization is also fine. The Code repeatedly endorses cat sterilization. Section 3.2-6534 lets a locality spend cat-license-tax revenue on "[e]fforts to promote sterilization of dogs and cats." Sections 3.2-6529 and 3.2-6543 authorize spending various penalty and enforcement funds on sterilization programs. Section 3.2-6574 requires new owners of cats adopted from a "releasing agency" to sterilize them. The statutes don't specify how localities should promote sterilization, but under the "reasonable method of selection" rule from Commonwealth v. County Board, the locality can pick a reasonable implementation, including directly funding a vet to do the sterilizations.

Release back to the wild is where the program breaks. The decisive provisions are § 3.2-6504, which bans abandoning or dumping any animal, and the definitions in § 3.2-6500. "Abandon" means to "desert, forsake, or absolutely give up an animal without having secured another owner or custodian." "Dump" means to "knowingly desert, forsake, or absolutely give up without having secured another owner or custodian any dog, cat, or other companion animal in any public place . . . or on the property of another." Releasing a sterilized feral cat into the wild fits both definitions. Section 3.2-6546 lays out the only authorized disposition methods (release to a humane society or shelter; release to another state's shelter; adoption by a locality resident; adoption by an adjacent-locality resident; or adoption by another person), and "return to the location where captured" is not on the list.

The third question, about whether volunteers who participate in a TNR program become legal "owners" of the cats they trap, also got a clean no. Under § 3.2-6551, a person who finds a companion animal and provides care for it has the duties of a "finder": notify the owner and the pound within 48 hours, and provide adequate care under § 3.2-6503. Finders are distinct from owners. A volunteer working with a town-operated program is in the finder role, with custody and care responsibility but no property right in the animal.

The opinion is careful to disclaim policy: "[t]his opinion only addresses the law as it exists and makes no comment on what the law could or should be." The AG points out that localities are free to seek a statutory amendment if they want a different result. As of 2013, however, the legal answer was that the "Release" leg of TNR was off the table in Virginia.

Currency note

This opinion was issued in 2013. 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.

In particular, animal-welfare statutes are an active legislative area; readers concerned with feral-cat programs in Virginia should check current Title 3.2 provisions and any locality-specific ordinances before drawing operational conclusions from this 2013 reading.

Common questions

What is TNR?
Trap-Neuter-Release (sometimes Trap-Neuter-Return). Volunteers or animal control humanely trap feral cats, transport them to a vet for spaying or neutering, and then release the cats back to where they were captured. Proponents argue this stabilizes feral cat colonies and reduces complaints over time. Detractors argue it dumps fertile populations of disease-carrying outdoor cats back into communities.

Why doesn't sterilization solve the dumping problem?
Because Virginia's anti-dumping statute doesn't ask whether the animal is fertile. It asks whether the animal was "absolutely given up" without securing another owner or custodian. A sterilized cat released into the wild has been "absolutely given up" in exactly the sense the statute prohibits.

Could a locality license a private TNR group as a "releasing agency"?
The opinion doesn't address this directly. Section 3.2-6500 defines "releasing agency" to include shelters, humane societies, and various rescue organizations that "release companion animals for adoption." But "release for adoption" implies handing the animal off to another human owner, not releasing it to the wild. So even if a private TNR group became a registered releasing agency, the same anti-dumping logic would apply to its outdoor releases.

Are feral cats companion animals or wildlife?
Companion animals. Section 3.2-6500 defines "companion animal" broadly enough to include both feral and domestic cats, and the AG accepted that definition. Wildlife trapping (which is regulated under Title 29.1) is a separate regime that doesn't apply.

What duties does a "finder" have?
Under § 3.2-6551, the finder must attempt to notify the owner and the pound within 48 hours and provide adequate care under § 3.2-6503 (food, water, shelter, etc.). Failure to comply with § 3.2-6503's adequate-care requirements for five consecutive days is itself "abandonment" under § 3.2-6500.

What are the authorized disposition methods if a feral cat is captured?
Section 3.2-6546(D) lists five: release to a humane society, animal shelter, or releasing agency in Virginia; release to such an agency in another state; adoption by a locality resident; adoption by a resident of an adjacent locality; or adoption by another person. Notably absent from the list: release to the place captured, release "in the wild," or transfer to a TNR program for outdoor return.

Background and statutory framework

The relevant provisions in Title 3.2:

• § 3.2-6500 defines "companion animal," "owner," "abandon," "dump," "releasing agency," and "sterilization."
• § 3.2-6503 sets the duties of an owner: adequate food, water, shelter, exercise, veterinary care, and a few other items.
• § 3.2-6504 prohibits abandonment or dumping (Class 3 misdemeanor).
• § 3.2-6529 governs the spending of veterinarian-paid penalties on animal control and sterilization.
• § 3.2-6534 lists six purposes for which dog and cat license tax revenue may be spent, including sterilization promotion.
• § 3.2-6543 authorizes local ordinances paralleling and "more stringent" than the chapter, and authorizes spending of enforcement-related funds on sterilization.
• § 3.2-6546 sets the menu of authorized disposition methods.
• § 3.2-6551 governs companion-animal finders.
• § 3.2-6562 authorizes animal control officers to capture and confine companion animals of unknown ownership.
• § 3.2-6569 authorizes humane investigators, law-enforcement officers, and animal control officers to seize and impound abandoned, cruelly treated, or threatened animals.
• § 3.2-6574 requires new owners adopting from a releasing agency to sterilize the animal.
• §§ 15.2-1102 and 15.2-1200 are the general grant of police and welfare powers to towns/cities and counties respectively.

The Dillon Rule, as articulated in cases like Commonwealth v. County Board and Virginia Beach v. Hay, sets the analytical frame for any locality program: localities have only the powers expressly granted, necessarily implied, or essential to operations. When the General Assembly grants a power but doesn't specify the method of exercise, the locality may choose any reasonable method. Reasonableness is presumed unless the method is "contrary to legislative intent or inappropriate for the ends sought to be accomplished."

Citations

• Va. Code § 3.2-6500 (definitions, including "abandon," "dump," "companion animal")
• Va. Code § 3.2-6503 (adequate care)
• Va. Code § 3.2-6504 (abandonment/dumping ban)
• Va. Code §§ 3.2-6529, 3.2-6534, 3.2-6535, 3.2-6543 (funding sterilization)
• Va. Code § 3.2-6546 (disposition methods)
• Va. Code § 3.2-6548 (releasing agency duties)
• Va. Code § 3.2-6551 (finder duties)
• Va. Code § 3.2-6562 (animal control officer capture authority)
• Va. Code § 3.2-6569 (seizure authority)
• Va. Code § 3.2-6574 (sterilization on adoption)
• Va. Code §§ 15.2-1102, 15.2-1200 (general police powers)
• King v. Arlington Cnty., 195 Va. 1084, 81 S.E.2d 587 (1954)
• Commonwealth v. County Bd., 217 Va. 558, 232 S.E.2d 30 (1977)
• Virginia Beach v. Hay, 258 Va. 217, 518 S.E.2d 314 (1999)
• 1968-69 Op. Va. Att'y Gen. 104

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-100_Napier.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 12, 2013

Douglas W. Napier, Esquire
Town Attorney
Town of Front Royal
Post Office Box 1560
Front Royal, Virginia 22630-2612

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Napier:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire generally whether a town and county legally may operate a Trap-Neuter-Release ("TNR") program, and specifically as to:

1. Whether it is legal to trap feral cats in a humane fashion;
2. Whether such trapped cats may be neutered by a licensed veterinarian and released back to the location from which they were trapped; and
3. Whether persons who trap feral cats in accordance with a locality's TNR program become the de facto or de jure owners of such cats.

Response

It is my opinion that a locality lawfully may operate a capture and sterilization program for the purpose of controlling a population of feral cats. The feral cats may be captured in a humane fashion, and such captured cats may be sterilized by a licensed veterinarian. The feral cats, however, may not be released by the locality back to the location from whence they came or some other location in the wild. Finally, it is my opinion that persons who capture feral cats while acting as agents of or in conjunction with a locality as part of its trap and sterilize program are companion animal finders and do not become the de facto or de jure owners of such cats.

Background

You indicate that TNR programs seek to trap feral cats humanely, neuter or spay them, and return them to the place from which they were trapped or "some other more suitable place in the wild." The proposed program would involve the participation of the Warren County Animal Control and the Humane Society of Warren County.

Applicable Law and Discussion

You first inquire whether a Virginia locality lawfully may implement a program to trap feral cats. Both feral and domestic cats are "companion animals" as defined by statute. The term "trap" is not used in Title 3.2 of the Code of Virginia in connection with feral cats or other companion animals. Rather, it is used in connection with "trapping" of wildlife as regulated under other titles.

Although the term "trapping" is not used for the companion animals included in Title 3.2, certain local officials may capture feral cats. In fact, § 3.2-6562 provides that it is the duty of animal control officers "to capture and confine any companion animal of unknown ownership found running at large on which the license fee has not been paid." Similarly:

Any humane investigator, law-enforcement officer or animal control officer may lawfully seize and impound any animal that has been abandoned, has been cruelly treated, or is suffering from an apparent violation of this chapter that has rendered the animal in such a condition as to constitute a direct and immediate threat to its life, safety or health.

Section 3.2-6543 provides that a local governing body may adopt and "make more stringent" ordinances that parallel many sections of Title 3.2. Thus, it is my opinion that a locality could adopt ordinances that would allow for the capture and confinement of feral cats, because they would parallel § 3.2-6562.

Turning to your inquiry regarding sterilization, a locality has the authority to adopt local ordinances for animal control programs so long as they will "conform to and not be in conflict with the public policy of the State as embodied in its statutes." Section 3.2-6574(A) provides, in part, that "[e]very new owner of a . . . cat adopted from a releasing agency shall cause to be sterilized the . . . cat." Section 3.2-6548(E) transfers the responsibility for documenting such sterilization from an animal shelter to any other "releasing agency." Further, § 3.2-6534 requires that a locality's proceeds from dog and cat license taxes be spent on six specified purposes, one of which is "[e]fforts to promote sterilization of dogs and cats." Pursuant to § 3.2-6500, "sterilization" means a surgical or chemical procedure performed by a licensed veterinarian that renders a dog or cat permanently incapable of reproducing. The General Assembly recognizes the existence of localities' sterilization programs in two other provisions that discuss how funds and penalties collected may be spent. One requires that penalties paid by veterinarians for not providing localities with information on vaccination certificates "be placed in the locality's general fund for the purpose of animal control activities including spay or neuter programs." The other authorizes that "[a]ny funds collected pursuant to the enforcement of ordinances adopted pursuant to the provisions of this section may be used for the purpose of defraying the costs of local animal control, including efforts to promote sterilization of cats and dogs." However, no statute specifies how localities should promote such sterilization.

Virginia follows the Dillon Rule of local government authority, whereby localities have only those powers expressly granted or necessarily implied by statute, as well as those powers that are essential and indispensible. Where a statute grants a power to a locality, but does not specifically direct the method of exercising that power, a local government's choice regarding how to implement the power will be upheld "so long as the method selected is reasonable." The Supreme Court of Virginia provided guidance for application of this "reasonableness" test in City of Virginia Beach v. Hay. The court stated that while the question of reasonableness is dependent on the circumstances of each case, a locality's method is considered unreasonable only if it is "contrary to legislative intent or inappropriate for the ends sought to be accomplished by the grant of power." If there is any doubt in the reasonableness of the method selected, it is "resolved in favor of the locality."

While §§ 3.2-6529, 3.2-6534, and 3.2-6543 provide an express grant of power for a locality to expend funds to promote the sterilization of companion animals, they are silent regarding the mode or manner of execution. Therefore, the "reasonable method of selection" rule applies. Because the statutes, by their own terms, seek to promote sterilization of companion animals and indicate that in certain circumstances an animal shelter, pound, or other receiving agency is responsible for documenting that it is done, it is reasonable for a locality to adopt an ordinance authorizing monies to be spent directly to arrange for the sterilization procedure. Thus, it is my opinion that a locality, by ordinance, may establish a program for and provide funding to have feral cats sterilized by a licensed veterinarian.

Your inquiry regarding whether such captured and sterilized feral cats may be released back to the location from which they were captured turns on the construction of terms found in § 3.2-6546. Once such animals are captured, § 3.2-6546 provides the framework for the confinement and disposition of animals. Section 3.2-6546(D) specifically provides five methods by which an animal may be released or adopted by the county or city pounds or their designees. Two of the five methods allow for release to any humane society, animal shelter or other releasing agency, either within the Commonwealth, or in another state; the other three provide for adoption by a resident of the county, a resident of an adjacent county or other person.

Moreover, § 3.2-6504 provides: "No person shall abandon or dump any animal." The statute criminalizes a violation of that prohibition as a Class 3 misdemeanor. "Abandon" is defined as "desert, forsake, or absolutely give up an animal without having secured another owner or custodian for the animal or by failing to provide the elements of basic care as set forth in § 3.2-6503 for a period of five consecutive days." "Dump" is defined as "knowingly desert, forsake, or absolutely give up without having secured another owner or custodian any dog, cat, or other companion animal in any public place including the right-of-way of any public highway, road or street or on the property of another." Even a person who "finds" an animal pursuant to § 3.2-6551 has certain duties, including attempting to notify an owner and complying with the provisions of § 3.2-6503 for adequate care.

Thus, given the current statutory requirements for the disposition of companion animals, including feral cats, and the statutory prohibition upon abandoning or dumping companion animals, it is my opinion that feral cats may not be released programmatically back to the location where they were captured or other location "in the wild."

As to your final inquiry, it is my opinion that persons who capture feral cats while acting on behalf of a town-operated capture and sterilize program do not become the de facto or de jure owners of such cats. The Code of Virginia defines the term "owner" as "any person who: (i) has a right of property in an animal; (ii) keeps or harbors an animal; (iii) has an animal in his care; or (iv) acts as a custodian of an animal." Conversely, a person acting on behalf of a town-operated capture and sterilize program, who is not an animal control officer or other officer under § 3.2-6562, would be acting as an individual who "finds" an animal pursuant to § 3.2-6551. That Section provides that any "individual who finds a companion animal and: (i) provides care or safekeeping; or (ii) retains a companion animal in such a manner as to control its activities" has certain responsibilities, including attempting to notify the owner and the pound within 48 hours, and complying with § 3.2-6503. The law therefore makes a distinction between an owner, who has a property interest in, cares for and/or shelters a companion animal, and someone who temporarily takes custody of and cares for and/or shelters such an animal while acting consistently with the above-noted statutory requirements respecting the animal. Thus, it is my opinion that a finder acting in conjunction with the locality-operated capture and sterilize program would not have a property right in a feral cat, nor would he become a de facto or de jure owner thereof through his actions of capturing and temporarily harboring, caring for, and otherwise taking temporary custody of the animal.

In reaching these conclusions, I make no judgment on the wisdom of the policy decisions underlying the statutory scheme regarding the disposition of companion animals, including feral cats. This opinion only addresses the law as it exists and makes no comment on what the law could or should be. As you note in your request, local jurisdictions are free to seek a legislative change if a different result is desired.

Conclusion

It is my opinion that a locality may lawfully operate a capture and sterilization program for the purpose of controlling the population of feral cats. The feral cats may be captured in a humane fashion, and such captured cats may be sterilized by a licensed veterinarian. The feral cats may not, however, be released by the locality back to the location from whence they came or some other location in the wild. Finally, it is my opinion that persons who capture feral cats while acting as agents of or in conjunction with a locality as part of its trap and sterilize program are companion animal finders and do not become the de facto or de jure owners of such cats.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General