Shannon Nicole Washer, et al. v. City of Borger, 07-16-00413-CV (Tex. App. – Amarillo, July 31, 2018).
In this case the Amarillo Court of Appeals affirmed the dismissal of the Plaintiffs’ claims challenging the constitutionality of an animal control ordinance and a dangerous dog determination preemption issue.
The City of Borger, a home-rule municipality, has an animal control ordinance and dangerous dog determination adoption under Tex. Health & Safety Code § 822.0421. Borger’s ordinances established an animal control authority to investigate dangerous animals (not just dogs), secure impoundment, if necessary, and provide a process for appeal. Appeals go to municipal court. The authority’s written determination that the animal is dangerous gives rise to a rebuttable presumption that the animal is a dangerous animal. Appeal from the municipal court goes to a county court or county court at law. Washer sued to prevent the application of the ordinance against her and her dog. She obtained a temporary injunction, but on final hearing, the court dismissed her claims. She appealed, but due to the lack of a reporter’s record, the court considered only those issues reviewable by reference to the clerk’s record.
City regulations ancillary to and in harmony with the general scope and purpose of state law are not preempted. Further, Tex. Health & Safety Code § 822.047 allows a city to place additional regulations on the state law dangerous dog determination criteria. Using statutory construction principles, the court held the ordinance was not in conflict with state law or the constitution. The ordinance provides for the taking of sworn statements in addition to interviewing individuals, examining the animal and reviewing other relevant information. Being more specific or providing additional information is not a contradiction. State law does not limit the investigation to sworn testimony. Further, state law is silent on whether a presumption exists of dangerousness after an authority makes a determination. As a result, the judgment is affirmed.
If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Pirtle and Justice Parker. Memorandum Opinion by Justice Pirtle. The attorney listed for Washer is Frank Lay. The attorney listed for the City is Joseph Parsons.