House Bill 358

AN ACT TO AMEND SECTION 97-41-2, MISSISSIPPI CODE OF 1972, TO REVISE THE SEIZURE PROVISION OF THE CHAPTER OF LAW PERTAINING TO CRIMES INVOLVING CRUELTY TO ANIMALS; TO PROVIDE THAT A COURT MUST ALLOW THE OWNER, OF AN ANIMAL WHICH IS ALLEGED TO BE THE VICTIM OF SUCH A CRIME, THE OPPORTUNITY FOR A HEARING TO DETERMINE WHETHER OR NOT THE ANIMAL SHOULD BE SEIZED; TO PROVIDE AN EXCEPTION TO THE ADVANCE HEARING PROCEDURE IN THE CASE OF AN IMMEDIATE THREAT TO THE LIFE OR HEALTH OF THE ANIMAL WHICH CREATES A BONA FIDE RISK OF DEATH OR PERMANENT INJURY; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-41-2, Mississippi Code of 1972, is amended as follows:

97-41-2. (1) (a) 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 determination that probable cause exists that an offense under this chapter has been or is being committed with respect to an animal. Such probable cause may be established upon sworn testimony of any person who personally has witnessed the condition, treatment or neglect of an animal.

(b) If the court determines that probable cause exists that such an offense has been or is being committed, but that there is no immediate threat to the life or health of the animal, then it shall order the appearance of the owner at a hearing set for the purpose of determining 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 three (3) days of its determination of probable cause. The hearing shall be concluded and any court order entered thereon within five (5) days after the hearing is commenced. If the court finds at the hearing that the animal should be seized, then 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. The court may appoint an animal control agency, agent of an animal shelter organization, veterinarian or other person as temporary custodian for the animal, pending final disposition of the animal pursuant to this subsection.

(2) (a) If the court determines that probable cause exists that such an offense has been or is being committed, and that there is an immediate threat to the life or health of the animal which creates a bona fide risk of death or permanent injury, then the court may order the seizure of the animal without a hearing in advance of the seizure.

(b) The court may appoint an animal control agency, agent of an animal shelter organization, veterinarian or other person as temporary custodian for the * * * animal, pending final disposition of the animal pursuant to this subsection. 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.

(c) 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.

(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) If the owner is found guilty of a violation of this chapter, and 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. However, if the animal is ultimately returned to the owner because the court did not find that a violation of the provisions of this chapter occurred, then the owner may not be ordered to reimburse the temporary custodian for such costs, and the costs shall be either collected from the complaining witness or paid by the court. 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 2. This act shall take effect and be in force from and after July 1, 2012.