Breckenridge Texan

Editor’s Note: This article is part of a series by the Breckenridge Texan on the animal problems in Breckenridge and Stephens County, Texas. Additional articles will be linked at the end of this story as they are posted.

By Carla McKeown and Tony Pilkington/Breckenridge Texan

The relationship between the Stephens County Humane Society and the City of Breckenridge has been tense since the organization’s president learned that in late April or early May a cat was taken from the Breckenridge Animal Shelter and released in an uninhabited area at Lake Daniel by City employees, on the direction from Police Chief Blake Johnson, who started the job on April 22. The incident led to a formal complaint against the police chief, as well as a change in City policy.

Kathy O’Shields, president of the SCHS, said the action was illegal under the Texas animal cruelty law, which forbids abandoning animals, and an attorney with the Texas Humane Legislation Network agrees with her.

City Manager Cynthia Northrop and Johnson said the action was legal, since the park at Lake Daniel is City of Breckenridge property and “reasonable accommodations,” described as leaving food and water at the park, were made for the cat.

The Incident

According to a written document provided to the Breckenridge Texan by Northrop in a meeting on July 12, “ACO (Animal Control Officer) accepted 3 cats ‘impounded’ by a citizen: Two escaped. PD (Police Department)/ACO discussed the solution of making reasonable accommodations on our property at Lake Daniels, knowing this would be a one-time event since we WOULD NOT be accepting cats and would be updating ordinance. I was advised.”

Lake Daniel is located about 10 miles southeast of Breckenridge in a rural area. The park area does not have any nearby residences or buildings. There are several picnic tables and benches, as well as a portable toilet, but no buildings in the public areas of the park.

In an Aug. 1 follow-up interview about the situation, Northrop and Johnson confirmed that there were three cats at the animal shelter that had been trapped by a local citizen and turned over to an animal control officer. Two of the cats escaped from the shelter through a window.

The animal shelter is no longer equipped to house cats, so the ACO consulted Johnson on what to do with the cat. One of the employees came up with the idea to take the cat to the lake, Northrop and Johnson said, and the decision was made to release the cat at Lake Daniel, since it is a city-owned property.

“What I want to get to is the fact that the recommendation was made, and that it is according to the law that we make reasonable accommodations on our property,” Northrop said. “Lake Daniels is removed for the city, there’s no doubt about it. But we have employees out there almost on a daily basis. So, reasonable accommodations were made to check on the animal, to give it food and water. And we have other staff out there as well.”

Johnson said he had no qualms from anyone involved about the situation. “They did as they were asked to do,” he said.

The cat was left at the lake with food and water. At some point after the cat was released at the lake, City employees returned to the area in an attempt to retrieve it, but those efforts have not been successful. Additionally, Johnson said employees have returned to the park to leave food and water in the area, but not on a daily basis.

Although Johnson says that the action was legal, in hindsight, he says it might not have been the best thing to do.

“…I’ve been totally honest,” Johnson said. “I mean, this is a decision that I made. And … I feel that, you know, we made a decision based on where we’re at. I feel like we’re in compliance. But, like I said, it’s not a best practice. And I think we’ve … been totally honest and have never, at any point, said that what was done was the best thing for the cat. I mean, you know, at the time, it seemed like it but with … hindsight, now we’re able to look back and go, ‘Hey, we have better options; we can do other things.’”

The complaint

On May 29, O’Shields met with Northrop, Johnson, Animal Control Officer Shorie Henderson and Greg Akers, who at that time was a SCHS board member and who has since been elected to the Breckenridge City Commission. The statement from the City says, “During that meeting Ms. O’Shields explained that the SCHS Board was concerned that the city had abandoned animals. It was explained that in alignment with state statute reasonable accommodations were made for a cat as we haven’t and don’t have capacity to house stray cats.”

Northrop and O’Shields met again on June 10, and, according to the City’s statement, O’Shields said that the SCHS Board wanted to pursue discipline against the police chief. Following that meeting, Northrop emailed O’Shields to let her know that, since the complaint was against a peace officer, it would have to be in writing.

On the afternoon of July 2, O’Shields sent an email addressed to Northrop, the four city commissioners and the mayor, explaining the SCHS’s complaint. She also provided copies for the commissioners and the mayor. According to the complaint, Johnson instructed Henderson and another city employee to take the cat to Lake Daniel and release it; they put out food and water and left the cat.

“A meeting was held and the Chief admitted doing it along with the others involved. Not one time did he show any remorse about what he had done or even seem to care,” O’Shields said in the email. “He acted as if the law didn’t apply to him.”

The complaint characterizes the incident: “This cat was ‘dumped’ in an area where he was not familiar and left to die a horrible death at the mercy of coyotes, wild dogs, or other wild animals. As a Chief of Police and stating he was familiar with Animal Control he should have been aware of the law. This decision is animal cruelty.”

When the Breckenridge City Commission met for its regular meeting on the evening of July 2, the commission met with City Attorney Eileen Hayman in a closed door session. The agenda listed the topic was “Animal Control.” When the commissioners returned to the regular session, they did not take any action.

In a written response to O’Shields’ complaint, dated July 8, Northrop said, “As I communicated to your during that (May 29) meeting, I communicated to you that the incident was not ideal, however, the Chief explained that the actions taken were consistent with the law (Texas Penal Code 42.092) in that it was city property (Lake Daniels) and reasonable accommodations were made for the cat. After further review and consultation with our attorney, she confirmed.”

Lake Daniel was quiet and peaceful early Saturday morning with a few people set up in some of the camp/picnic sites and fishing along the shore. (Photo by Tony Pilkington/Breckenridge Texan)

The Law

The City of Breckenridge’s Code of Ordinances [Sec. 4-7 (b)] says, “It shall be unlawful for any person to willfully abandon any animal on any street, road, highway or public place, or on private property when not in the care of another person.”

Additionally, the Texas Penal Code’s Section 42.092 Cruelty to Non-livestock Animals states that a person commits an offense if he or she intentionally, knowingly or recklessly “abandons unreasonably an animal in the person’s custody.” The same law defines “abandon” as “abandoning an animal in the person’s custody without making reasonable arrangements for assumption of custody by another person.”

Additionally, that section of the law defines “animal” as “a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. The term does not include an uncaptured wild living creature or a livestock animal.”

Section 42.092 of the state law also identifies other illegal acts, such as torturing or causing serious bodily injury to an animal; killing an animal in a cruel manner; transporting an animal in a cruel manner; seriously overworking an animal; failing to provide necessary food, water, care or shelter for an animal in your custody; and more.

There are a couple of acceptable defenses to such charges, including if the person involved had reasonable fear or bodily injury or if he or she was engaged in experimentation for scientific research.

Additionally, the section that specifically refers to abandonment has two exceptions: if the animal is a “wild living creature” that is released in accordance with the Texas wildlife laws and regulations (the definitions differentiate between a feral domesticated animal such as a cat or dog and a wild animal); and if the animal is a stray or feral animal which is part of the Trap-Neuter-Return program.

Shelby Bobosky, the executive director of the Texas Humane Legislation Network and an attorney, said that the action does not fall under the only exemption to the state’s law against abandoning an animal, which is a relatively new law that allows animals to be released as part of a Trap-Neuter-Return program. The TNR exemption in the law went into effect last September and makes it legal for “community cats” to be trapped, neutered and returned to the location where they were trapped. It is a nonlethal method for controlling cat populations. During the process, one of the cat’s ears is “tipped” (the tip of the ear is surgically removed under anesthesia) so that the cat can easily be identified as already trapped, neutered and returned.

Although Johnson referenced the TNR exemption several times during the Aug. 1 interview with the Breckenridge Texan, the cat was not neutered by the City nor was it returned to the location where it was originally trapped, which is a requirement of the exemption.

Bobosky, also an adjunct law professor at Southern Methodist University, said the situation with the cat released at Lake Daniel also doesn’t fall under any type of barnyard program.

In her opinion, Bobosky said, the cat could not have survived without regular food and fresh water, due to wild animals in the area.

Abandoning an animal under Section 42.092 (b-4) is a Class A misdemeanor, the state’s most serious misdemeanor charge. Other Class A misdemeanors include crimes such as driving while intoxicated second offense, assault causing bodily injury, theft of property valued at $750 to $2,500, and resisting arrest. Punishment for a Class A misdemeanor can include up to a year in the county jail and a fine up to $4,000.

The Breckenridge Texan sent an email to the city’s attorney, Eileen Hayman, requesting a phone interview with her about the incident. She said in a reply, “As I’m sure you can understand, any discussions that I have had with City officials, and my legal perspective, are confidential pursuant to the attorney-client privilege.”

We also asked to talk to her about the city animal ordinances, enforcement, and prosecution, since she is the city’s prosecutor. Hayman’s response regarding that was, “As far as my role as the City Prosecutor, to the best of my memory, I have not had any animal control cases come across my desk in several months, and certainly have not been involved in any since the ordinance was recently revised.”

She did not acknowledge or reply to our follow-up email reiterating our request to talk to her.

Hayman did not confirm or deny that the actions taken by the police chief and other city employees regarding relocating a cat from Breckenridge to Lake Daniel was legal.

Aftereffects

As a result of the situation that led to the cat being released at Lake Daniel, the City revised its laws regarding accepting animals that have been impounded by property owners.

Previously, property owners were allowed to capture at-large animals on their property and turn them over to the animal shelter, such as what happened with the cat that was released at the lake. That section was deleted as part of an overhaul of the City’s Animals and Fowl section of the City Code of Ordinances.

At the July 2 City meeting, City Attorney Eileen Hayman spoke about the changes to the ordinance. “…we’ve updated some other things involving the city’s impoundment of animals, the city’s acceptance of animals that are impounded or at least are surrendered to the city, and kind of made it more of a discretionary for the city to accept animals in certain cases,” she said.

The police chief said that if a resident has a problem with a stray or at-large animal, the resident can call the Breckenridge Police Department’s non-emergency number, 254-559-2211. Depending on the situation and the availability of City staff, either an animal control officer or a police officer will respond to the scene and take the appropriate action. That could include impounding the animal, finding the animal’s owner or other necessary action.

Although the section allowing property owners to impound animals was removed from the ordinance, the part of the local law that forbids animals from being abandoned is still in place. Animals that are turned loose or dumped are often injured or killed in traffic or by other animals. Those that survive often reproduce, further increasing the number of stray animals in the area.

There were other animal-related changes to the City ordinance that will be covered in upcoming articles in this series.

In addition to making changes to the ordinance, City officials also agreed to talk with Bobosky at the Texas Humane Legislation Network about having additional animal-related training for local police officers.

During a phone interview with the Breckenridge Texan last week, Bobosky said, “Unfortunately, in this particular case, we don’t know what happened to that feral cat. However, I would use this as an educational tool. I believe that this particular police department and potentially the sheriff’s department would really benefit from some animal cruelty training.”

Bobosky said the THLN can provide free animal cruelty training to law enforcement and others in Breckenridge and Stephens County. “And that includes information on … the laws that deal with animals, whether it’s the Safe Outdoor Dog Act that recently just passed two years ago, whether it’s the cruelty law, whether it’s just general neglect. From our standpoint, it’s not law enforcement’s fault that they don’t know all these laws, because they are given a ton of laws to know,” she said. “And so we invite the district attorney and county attorney, and we come out and we provide the training for free. We are happy to do that.”

Northrop and Johnson said they would welcome the training and would get in touch with Bobosky.

Continued discussion

The City Commission will meet for its regular meeting at 5:30 p.m. Tuesday, Aug. 6, and the topic of animal control is on the agenda.

Under a category titled “Special Presentations and Announcements,” the agenda includes an item that says, “Stephens County Humane Society to address the Commission regarding animal control practices and animal ordinance.” The item is not listed as an action item.

Additionally, other members of the public may address the commission during the meeting. According to the City of Breckenridge website, “Citizens wishing to speak should complete a Citizen Participation Form and present it to the City Secretary no less than 5 minutes prior to the start of the meeting. Forms are available in the Council Chamber at City Hall. Speakers are limited to 3 minutes. In accordance with the Texas Open Meetings Act, the City Council cannot take action on items not listed on the agenda.”

Related articles:

Breckenridge Texan takes deep look into animal control problem in Breckenridge and Stephens County

Is Breckenridge’s Animal Control out of control? Some local residents think so.

Cutline, top photo: Lake Daniel, where a Breckenridge cat was recently released by City employees, is located about 10 miles southeast of Breckenridge in a rural area. There are a few picnic tables and a portable toilet, but no buildings in the public areas of the park, which is owned by the City of Breckenridge. (Photo by Tony Pilkington/Breckenridge Texan)