MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary B

By: Representative Reynolds (By Request)

AN ACT TO BRING FORWARD SECTIONS 97-41-1, 97-41-2, 97-41-3, 97-41-5, 97-41-7, 97-41-9, 97-41-11, 97-41-13, 97-41-15, 97-41-16, 97-41-17, 97-41-19 AND 97-41-21, MISSISSIPPI CODE OF 1972, WHICH REGARD CRUELTY TO ANIMALS; TO CREATE DEFINITIONS REGARDING 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 brought forward as follows:

97-41-1. If any person shall override, overdrive, overload, torture, torment, unjustifiably injure, deprive of necessary sustenance, food, or drink; or cruelly beat or needlessly mutilate; or cause or procure to be overridden, overdriven, overloaded, tortured, unjustifiably injured, tormented, or deprived of necessary sustenance, food or drink; or to be cruelly beaten or needlessly mutilated or killed, any living creature, every such offender shall, for every offense, be guilty of a misdemeanor.

SECTION 2. Section 97-41-2, Mississippi Code of 1972, is brought forward as follows:

97-41-2. (1) All justice 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. After three (3) days notice to the owner and at a preliminary hearing, 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 protection 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 post prominently a notice to the owner or custodian to inform such person that the animal has been seized. Such 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 be signed by the court issuing the order.

(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.

(9) For the purposes of this section the term "animal" or "animals" means any feline, exotic animal, canine, horse, mule, jack or jennet.

SECTION 3. Section 97-41-3, Mississippi Code of 1972, is brought forward as follows:

97-41-3. Any sheriff, constable, policeman, or agent of a society for the prevention of cruelty to animals may kill, or cause to be killed, any animal found neglected or abandoned, if in the opinion of three respectable citizens it be injured or diseased past recovery, or by age has become useless.

SECTION 4. Section 97-41-5, Mississippi Code of 1972, is brought forward as follows:

97-41-5. If any person shall carry, or cause to be carried by hand or in or upon any vehicle or other conveyance, any creature in a cruel or inhuman manner, he shall be guilty of a misdemeanor.

SECTION 5. Section 97-41-7, Mississippi Code of 1972, is brought forward as follows:

97-41-7. If any person shall confine, or cause to be confined, in any stable, lot, or other place, any living creature, without supplying the same during such confinement with a sufficient quantity of good and wholesome food and water, he shall be guilty of a misdemeanor.

SECTION 6. Section 97-41-9, Mississippi Code of 1972, is brought forward as follows:

97-41-9. If any person be the owner or have the custody of any living creature and unjustifiably neglect or refuse to furnish it necessary sustenance, food, or drink, he shall be guilty of a misdemeanor.

SECTION 7. Section 97-41-11, Mississippi Code of 1972, is brought forward as follows:

97-41-11. Any person who shall keep or use, or in any way be connected with or interested in the management of, or shall receive money for the admission of any person to, any place kept or used for the purpose of fighting any bear, cock or other creature, except a dog, or of tormenting or torturing the same, and every person who shall encourage, aid, or assist therein, or who shall permit or suffer any place to be so kept or used, shall be guilty of a misdemeanor. It shall be the duty of any policeman or other officer of the law, county or municipal, to enter into any such place kept for such purpose, and to arrest each and every person concerned or participating therein.

SECTION 8. Section 97-41-13, Mississippi Code of 1972, is brought forward as follows:

97-41-13. Any person who shall violate any of Sections 97-41-3 to 97-41-11, or Section 97-27-7 on the subject of cruelty to animals shall, on conviction, be fined not less than ten dollars nor more than One Hundred Dollars ($100.00), or shall be imprisoned in the county jail not less than ten (10) days nor more than one hundred (100) days or both.

SECTION 9. Section 97-41-15, Mississippi Code of 1972, is brought forward as follows:

97-41-15. (1) Any person who shall maliciously, either out of a spirit of revenge or wanton cruelty, or who shall mischievously kill, maim or wound, or injure any livestock, or cause any person to do the same, shall be guilty of a felony and upon conviction, shall be committed to the custody of the State Department of Corrections for not less than twelve (12) months nor more than five years, and fined an amount not less than One Thousand Five Hundred Dollars ($1,500.00), nor more than Ten Thousand Dollars ($10,000.00).

(2) In addition to any such fine or imprisonment which may be imposed, the court shall order that restitution be made to the owner of any animal listed in subsection (1) of this section. The measure for restitution in money shall be the current replacement value of such loss and/or the actual veterinarian fees, special supplies, loss of income and other costs incurred as a result of actions in violation of subsection (1) of this section.

(3) For purposes of this section, the term "livestock" shall mean horses, cattle, swine, sheep and other domestic animals produced for profit.

SECTION 10. Section 97-41-16, Mississippi Code of 1972, is brought forward as follows:

97-41-16. (1) Any person who shall maliciously, either out of a spirit of revenge or wanton cruelty, or who shall mischievously kill, maim or wound, or injure any dog, or cause any person to do the same, shall be fined not more than One Thousand Dollars ($1,000.00) or be imprisoned not exceeding six (6) months.

(2) In addition to such fine or imprisonment which may be imposed, the court shall order that restitution be made to the owner of such dog. The measure for restitution in money shall be the current replacement value of such loss and/or the actual veterinarian fees, special supplies, loss of income and other cost incurred as a result of actions in violation of subsection (1) of this section.

SECTION 11. Section 97-41-17, Mississippi Code of 1972, is brought forward as follows:

97-41-17. Every person who shall wilfully and unlawfully administer any poison to any horse, mare, colt, mule, jack, jennet, cattle, deer, dog, hog, sheep, chicken, duck, goose, turkey, pea-fowl, guinea-fowl, or partridge, or shall maliciously expose any poison substance with intent that the same should be taken or swallowed by any horse, mare, colt, mule, jack, jennet, cattle, dog, hog, sheep, chicken, duck, goose, turkey, pea-fowl, guinea-fowl, or partridge, shall, upon conviction, be punished by imprisonment in the Penitentiary not exceeding three (3) years, or in the county jail not exceeding one (1) year, and by a fine not exceeding Five Hundred Dollars ($500.00).

SECTION 12. Section 97-41-19, Mississippi Code of 1972, is brought forward as follows:

97-41-19. (1) If any person (a) shall sponsor, promote, stage or conduct a fight or fighting match between dogs, or (b) shall wager or bet, promote or encourage the wagering or betting of any money or other valuable thing upon any such fight or upon the result thereof, or (c) shall own a dog with the intent to wilfully enter it or to participate in any such fight, or (d) shall train or transport a dog for the purposes of participation in any such fight, he shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the State Penitentiary for a term of not less than one (1) nor more than three (3) years, or by both such fine and imprisonment, in the discretion of the court.

(2) If any person shall be present, as a spectator, at any location where preparations are being made for an exhibition of a fight between dogs with the intent to be present at such preparations, or if any person shall be present at an exhibition of a fight between dogs with the intent to be present at such exhibition, he shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the State Penitentiary for a term of not more than one (1) year, or by both such fine and imprisonment, in the discretion of the court.

(3) Any law enforcement officer making an arrest under subsection (1) of this section may lawfully take possession of all dogs and all paraphernalia, implements, equipment or other property used in violation of subsection (1) of this section. Such officer shall file with the circuit court of the county within which the alleged violation occurred an affidavit stating therein (a) the name of the person charged, (b) a description of the property taken, (c) the time and place of the taking, (d) the name of the person who claims to own such property, if known, and (e) that the affiant has reason to believe, stating the ground of such belief, that the property taken was used in such violation. He shall thereupon deliver the property to such court which shall, by order in writing, place such dogs, paraphernalia, implements, equipment, or other property in the custody of a licensed veterinarian, the local humane society or other animal welfare agency, or other suitable custodian, to be kept by such custodian until the conviction or final discharge of the accused, and shall send a copy of such order without delay to the district attorney of the county. The custodian named and designated in such order shall immediately assume the custody of such property and shall retain same, subject to order of the court.

Upon the certification of a licensed veterinarian or officer of the humane society or animal welfare agency that, in his professional judgment, a dog which has been seized is not likely to survive the final disposition of the charges or that, by reason of the physical condition of the dog, it should be humanely euthanized before such time, the court may order the dog humanely euthanized. The court shall make its finding of whether to issue such an order within seven (7) days from the certification by the veterinarian or officer of the humane society or animal welfare agency. The owner of a dog which is euthanized without an order of the court with such certification of a licensed veterinarian or officer of the humane society or other animal welfare agency shall have a right of action for damages against the department or agency by which the arresting or seizing officer is employed. Upon conviction of the person charged with a violation of subsection (1) of this section, all dogs seized shall be adjudged by the court to be forfeited and the court shall order a humane disposition of the same. In no event shall the court order the dog to be euthanized without the certification of a licensed veterinarian or officer of the humane society or other animal welfare agency that, in his judgment, the dog is not likely to survive or that, by reason of its physical condition, the dog should be humanely euthanized. In the event of the acquittal or final discharge without conviction of the accused, the court shall direct the delivery of the property so held in custody to the owner thereof. All reasonable expenses incurred by the custodian of seized dogs and property shall be charged as costs of court, to be taxed against the owner or county in the discretion of the court.

(4) Nothing in subsection (1) of this section shall prohibit any of the following:

(a) The use of dogs in the management of livestock, by the owner of such livestock or other persons in lawful custody thereof;

(b) The use of dogs in lawful hunting; and

(c) The training of dogs for any purpose not prohibited by law.

SECTION 13. Section 97-41-21, Mississippi Code of 1972, is brought forward as follows:

97-41-21. (1) An individual shall not do either of the following:

(a) Willfully and maliciously assault, beat, harass, injure, or attempt to assault, beat, harass or injure, a dog that he or she knows or has reason to believe is a guide or leader dog for a blind individual, a hearing dog for a deaf or audibly impaired individual, or a service dog for a physically limited individual.

(b) Willfully and maliciously impede or interfere with, or attempt to impede or interfere with, duties performed by a dog that he or she knows or has reason to believe is a guide or leader dog for a blind individual, a hearing dog for a deaf or audibly impaired individual, or a service dog for a physically limited individual.

(2) An individual who violates subsection (1) is guilty of a misdemeanor punishable by imprisonment for not more than ninety (90) days or a fine of not more than Five Hundred Dollars ($500.00), or both.

(3) In a prosecution for a violation of subsection (1), evidence that the defendant initiated or continued conduct directed toward a dog described in subsection (1) after being requested to avoid or discontinue that conduct or similar conduct by a blind, deaf, audibly impaired or physically limited individual being served or assisted by the dog shall give rise to a rebuttable presumption that the conduct was initiated or continued maliciously.

(4) A conviction and imposition of a sentence under this section does not prevent a conviction and imposition of a sentence under any other applicable provision of law.

(5) As used in this section:

(a) "Audibly impaired" means the inability to hear air conduction thresholds at an average of forty (40) decibels or greater in the individual's better ear.

(b) "Blind" means having a visual acuity of 20/200 or less in the individual's better eye with correction, or having a limitation of the individual's field of vision such that the widest diameter of the visual field subtends an angular distance not greater than twenty (20) degrees.

(c) "Deaf" means the individual's hearing is totally impaired or the individual's hearing, with or without amplification, is so seriously impaired that the primary means of receiving spoken language is through other sensory input, including, but not limited to, lip reading, sign language, finger spelling or reading.

(d) "Harass" means to engage in any conduct directed toward a guide, leader, hearing or service dog that is likely to impede or interfere with the dog's performance of its duties or that places the blind, deaf, audibly impaired or physically limited individual being served or assisted by the dog in danger of injury.

(e) "Injure" means to cause any physical injury to a dog described in subsection (1).

(f) "Maliciously" means any of the following:

(i) With intent to assault, beat, harass or injure a dog described in subsection (1).

(ii) With intent to impede or interfere with duties performed by a dog described in subsection (1).

(iii) With intent to disturb, endanger or cause emotional distress to a blind, deaf, audibly impaired or physically limited individual being served or assisted by a dog described in subsection (1).

(iv) With knowledge that the individual's conduct will, or is likely to, harass or injure a dog described in subsection (1).

(v) With knowledge that the individual's conduct will, or is likely to, impede or interfere with duties performed by a dog described in subsection (1).

(vi) With knowledge that the individual's conduct will, or is likely to, disturb, endanger or cause emotional distress to a blind, deaf, audibly impaired or physically limited individual being served or assisted by a dog described in subsection (1).

(g) "Physically limited" means having limited ambulatory abilities and includes, but is not limited to, having a temporary or permanent impairment or condition that does one or more of the following:

(i) Causes the individual to use a wheelchair or walk with difficulty or insecurity.

(ii) Affects sight or hearing to the extent that an individual is insecure or exposed to danger.

(iii) Causes faulty coordination.

(iv) Reduces mobility, flexibility, coordination or perceptiveness.

SECTION 14. (1) For the purpose of this chapter, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) "Abandon" or "abandonment" means that an owner or custodian of an animal has moved leaving an animal behind without making provisions for its care, has carried an animal away from his or her property and intentionally deserted the animal, has forced the animal to leave, or has otherwise neglected or refused to provide an animal with sustenance and humane care.

(b) "Animal" shall include every living vertebrate.

(c) "Cruelty," "torture," or "torment" shall be held to include every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused.

(d) "Euthanize" or "euthanasia" means the humane killing of an animal by a licensed veterinarian, or by an animal control officer, a law enforcement officer, or an agent of a society for the prevention of cruelty, by means of a method recognized by the American and Mississippi Veterinary Medical Association as humane.

(e) "Injury" or "injured" means physical damage or harm inflicted or suffered.

(f) "Diseased" means deviated from a healthy or normal condition of any of the functions of tissues of the body, an alteration in the state of the body or some of its organs, interrupted or disturbed performance of the vital functions causing or threatening pain or weakness, suffering from an illness or an abnormal state having a definite pattern of symptoms.

(g) "Neglect" means an owner or custodian of an animal who omits, fails, disregards or refuses to provide that which is necessary sustenance or protection for the well-being of the animal.

(h) "Owner," "person," and "custodian" shall be held to include corporations, and the knowledge and acts of agents and employees of corporations in regard to animals transported, owned, employed by or in the custody of a corporation.

(i) "Sanitary conditions" means living space free from health hazards such as accumulated animal excreta, exposure to disease, overcrowding or other conditions that endanger an animal's well-being.

(j) "Shelter" means appropriate protection or housing from discomfort and the elements suitable for the age, breed and species of an animal to sustain the animal in good health.

(k) "Sustenance" or "care" means the provision of sufficient and appropriate wholesome food and unpolluted water, shelter, sanitary conditions, veterinary medical attention and necessary grooming to maintain an animal's well-being.

(2) Nothing in this section shall be construed to prohibit the lawful killing of livestock, any customary animal husbandry or framing practice involving livestock or the lawful killing and use of an animal pursuant to fish and wildlife regulations, pest control or scientific research that is being conducted in compliance with federal regulations.

SECTION 15. Section 14 of this act shall be codified in Chapter 41 of Title 97, Mississippi Code of 1972.

SECTION 16. This act shall take effect and be in force from and after July 1, 1999.