2005 Regular Session
To: Judiciary, Division B
By: Senator(s) Dawkins
AN ACT TO AMEND SECTION 97-41-1, MISSISSIPPI CODE OF 1972, TO REVISE THE CRIME OF CRUELTY TO ANIMALS, TO INCORPORATE ELEMENTS OF OFFENSES FOUND ELSEWHERE IN CHAPTER 41 OF TITLE 97, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS, AND TO DISTINGUISH BETWEEN MISDEMEANOR AND FELONY DEGREES OF THE OFFENSE; TO AMEND SECTION 97-41-2, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AMEND SECTION 97-41-3, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCESS BY WHICH AN ANIMAL MAY BE LAWFULLY DESTROYED, AND TO GRANT IMMUNITY TO THOSE ACTING UNDER THE SECTION IN GOOD FAITH; TO REPEAL SECTION 97-41-7, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THAT CONFINING ANY LIVING CREATURE WITHOUT SUFFICIENT FOOD AND WATER IS A MISDEMEANOR; TO REPEAL SECTION 97-41-9, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THAT A CUSTODIAN OF ANY LIVING CREATURE WHO FAILS TO PROVIDE SUFFICIENT FOOD AND DRINK IS GUILTY OF A MISDEMEANOR; TO REPEAL SECTION 97-41-13, MISSISSIPPI CODE OF 1972, WHICH PROVIDES PENALTIES FOR CERTAIN ACTS OF CRUELTY TO ANIMALS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-41-1, Mississippi Code of 1972, is amended as follows:
97-41-1. (1) For the purposes of this chapter, the following terms shall have the meanings ascribed to them unless the context clearly requires otherwise:
(a) "Animal" means any mammal, bird, reptile or amphibian.
(b) "Critical physical injury" means physical injury that creates a substantial risk of death, or that causes any protracted disfigurement, impairment of health or loss or impairment of a bodily function.
(c) "Guardian" means a person who has control, custody, possession, title or other legal interest in an animal.
(d) "Minimum care" means care sufficient to preserve the health and well-being of an animal and, except for emergencies or circumstances beyond the reasonable control of the guardian, includes, but is not limited to, the following:
(i) Food of sufficient quality and quantity to allow for normal growth or maintaining of body weight.
(ii) Access to potable water of a drinkable temperature in sufficient quantity for an animal or group of animals.
(iii) Shelter that protects an animal from the adverse effects of weather and extreme temperatures which is species and breed appropriate.
(iv) Veterinary care sufficient to relieve distress from injury, neglect or disease.
(v) Adequate exercise to prevent debility, including, if an animal or animals are penned, at least one hundred (100) square feet per animal in the pen.
(vi) If enclosed, adequate ventilation for normal breathing to prevent injury or suffering, lighting cycles of either natural or artificial light, and an area free of excess waste, debris or other contaminants that could injure or adversely affect the animal's health.
(e) "Physical injury" means physical trauma, impairment of condition or inflicted pain except that necessary for veterinary treatment.
(f) "Physical trauma" means fractures, cuts, burns, bruises, abrasions, punctures or other wounds, or illnesses produced by violence, neglect or a thermal or chemical agent.
(g) "Possession" means to have physical custody, or to exercise dominion or control over an animal.
(h) "Torment" means an act primarily intended to cause anguish, fear or suffering.
(i) "Torture" means an act primarily taken to inflict pain or suffering.
(2) (a) Any person who intentionally or with criminal negligence commits any of the following shall be guilty of misdemeanor cruelty to animals:
(i) Overdrives, overloads, drives when overloaded or overworks a living animal;
(ii) Torments or unjustifiably injures a living animal;
(iii) Having charge, custody or possession of any animal, either as owner or otherwise, and unjustifiably deprives of necessary sustenance, food, drink, sanitary shelter or veterinary care, or abandons any animal;
(iv) Impounds or confines, or causes to be impounded or confined, in a pound, stable, lot or other place, a living animal and fails to supply it during such confinement with proper food, proper drink and proper shelter;
(v) Carries, or causes to be carried, by hand or in or upon any vehicle or other conveyance, any living animal in a cruel or inhumane manner;
(vi) Intentionally injures any animal belonging to another person without legal privilege or consent of the owner;
(vii) Mistreats any living animal by any act or omission whereby unnecessary or unjustifiable physical pain, suffering or death is caused to or permitted upon the animal;
(viii) Causes or procures to be done by any person any act enumerated in this subsection (2);
(b) (i) A person convicted of the crime of misdemeanor cruelty to animals shall be fined not more than One Thousand Dollars ($1,000.00), imprisoned for not more than six (6) months, or both.
(ii) In addition to any other penalty imposed, a person convicted of the crime of misdemeanor cruelty to animals may be ordered to participate in either or both of court-approved community service or court-approved counseling, and further, the defendant may also be prohibited from owning or possessing an animal or animals for up to three (3) years.
(3) (a) Any person who intentionally or with criminal negligence tortures, cruelly beats, maims, mutilates or intentionally kills any living animal, or unjustifiably administers any poisonous or noxious drug or substance to any domestic animal or unjustifiably exposes any such drug or substance with intent that the same shall be taken or swallowed by any domestic animal, or, because of extreme deprivation of minimum care, causes critical physical injury to any living animal, whether belonging to himself or another, shall be guilty of felony cruelty to animals.
(b) Any person who causes or procures to be done by any person any act enumerated in this subsection (3) shall also be guilty of felony cruelty to animals.
(c) A person convicted of the crime of felony cruelty to animals shall be fined not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), imprisoned in the custody of the Department of Corrections for not more than five (5) years, or both. A person so convicted may also be ordered to counseling and may be prohibited from owning or possessing an animal or animals for not less than five (5) years.
(4) For purposes of this section, each incident of cruelty and each animal treated cruelly shall constitute the basis for a separate offense.
(5) The prohibitions in this section shall not apply to the lawful hunting or trapping of wildlife, herding of domestic animals, accepted animal husbandry practices, accepted veterinary practices, and activities carried on for scientific or medical research governed by accepted standards.
SECTION 2. Section 97-41-2, Mississippi Code of 1972, is amended as follows:
97-41-2. (1) All courts in the State of Mississippi may order the seizure of an animal by a law enforcement agency, for its care and protection upon a finding of probable cause to believe said animal is being cruelly treated, neglected or abandoned. Such probable cause may be established upon sworn testimony of any person who has witnessed the condition of said animal. The court may appoint an animal control agency, agent of an animal shelter organization, veterinarian or other person as temporary custodian for the said animal, pending final disposition of the animal pursuant to this section. Such temporary custodian shall directly contract and be responsible for any care rendered to such animal, and may make arrangements for such care as may be necessary. Upon seizure of an animal, the law enforcement agency responsible for removal of the animal shall serve notice upon the owner of the animal, if possible, and shall also post prominently a notice to the owner or custodian to inform such person that the animal has been seized. Such process and notice shall contain a description of the animal seized, the date seized, the name of the law enforcement agency seizing the animal, the name of the temporary custodian, if known at the time, and shall include a copy of the order of the court authorizing the seizure.
(2) Within five (5) days of seizure of an animal, the owner of the animal may request a hearing in the court ordering the animal to be seized to determine whether the owner is able to provide adequately for the animal and is fit to have custody of the animal. The court shall hold such hearing within fourteen (14) days of receiving such request. The hearing shall be concluded and the court order entered thereon within twenty-one (21) days after the hearing is commenced. Upon requesting a hearing, the owner shall have three (3) business days to post a bond or security with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs sufficient to provide for the animal's care. Failure to post such bond within three (3) days shall result in forfeiture of the animal to the court. If the temporary custodian has custody of the animal upon the expiration of the bond or security, the animal shall be forfeited to the court unless the court orders otherwise.
(3) In determining the owner's fitness to have custody of an animal, the court may consider, among other matters:
(a) Testimony from law enforcement officers, animal control officers, animal protection officials, and other witnesses as to the condition the animal was kept in by its owner or custodian.
(b) Testimony and evidence as to the type and amount of care provided to the animal by its owner or custodian.
(c) Expert testimony as to the proper and reasonable care of the same type of animal.
(d) Testimony from any witnesses as to prior treatment or condition of this or other animals in the same custody.
(e) Violations of laws relating to animal cruelty that the owner or custodian has been convicted of prior to the hearing.
(f) Any other evidence the court considers to be material or relevant.
(4) Upon proof of costs incurred as a result of the animal's seizure, including, but not limited to, animal medical and boarding, the court may order that the animal's owner reimburse the temporary custodian for such costs. A lien for authorized expenses is hereby created upon all animals seized under this section, and shall have priority to any other lien on such animal.
(5) If the court finds the owner of the animal is unable or unfit to adequately provide for the animal, or that the animal is severely injured, diseased, or suffering, and, therefore, not likely to recover, the court may order that the animal be permanently forfeited and released to an animal control agency, animal protection organization or to the appropriate entity to be euthanized or the court may order that such animal be sold at public sale in the manner now provided for judicial sales; any proceeds from such sale shall go first toward the payment of expenses and costs relating to the care and treatment of such animal, and any excess amount shall be paid to the owner of the animal.
(6) Upon notice and hearing as provided in this section, or as a part of any preceding conducted under the terms of this section, the court may order that other animals in the custody of the owner that were not seized be surrendered and further enjoin the owner from having custody of other animals in the future.
(7) If the court determines the owner is able to provide adequately for, and have custody of, the animal, the court shall order the animal be claimed and removed by the owner within seven (7) days after the date of the order.
(8) Nothing in this section shall be construed to prevent or otherwise interfere with a law enforcement officer's authority to seize an animal as evidence or require court action for the taking into custody and making proper disposition of animals as authorized in Sections 21-19-9 and 41-53-11.
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SECTION 3. Section 97-41-3, Mississippi Code of 1972, is amended as follows:
97-41-3. Any law enforcement officer, animal control officer, veterinarian or agent of a society for the prevention of cruelty to animals may kill, or cause to be killed, any animal found neglected, injured or abandoned, if in the opinion of three(3) respectable citizens it is injured or diseased past reasonable recovery, or by age has become useless. Anyone acting in good faith pursuant to this section shall not be held liable either criminally or civilly for that action.
SECTION 4. Section 97-41-5, Mississippi Code of 1972, which provides that carrying any creature in a cruel or inhuman manner is a misdemeanor, is repealed.
SECTION 5. Section 97-41-7, Mississippi Code of 1972, which provides that confining any living creature without sufficient food and water is a misdemeanor, is repealed.
SECTION 6. Section 97-41-9, Mississippi Code of 1972, which provides that a custodian of any living creature who fails to provide sufficient food and drink is guilty of a misdemeanor, is repealed.
SECTION 7. Section 97-41-13, Mississippi Code of 1972, which provides penalties for certain acts of cruelty to animals, is repealed.
SECTION 8. This act shall take effect and be in force from and after July 1, 2005.