This article originally appeared at texaslawshield.com and is reprinted here with permission.
We were all shocked and angry when we heard about the CenterPoint Energy employee who was caught on video attacking a homeowner’s dogs with a wrench. Almost everyone agreed that this was a cruel and violent act but there’s still a question – what are a homeowners’ rights if this happens to them? We asked Texas Law Shield Independent Program Attorney, and attorney at the law firm of Walker & Byington, Emily Taylor to shed some light on this issue . . .
Let me begin by saying I love my dog (and really, who wouldn’t love that cute little face?), and I was outraged when I saw the video. If you watch closely, you can see a tooth from the dog knocked out and land in the pool; it made me feel sick to my stomach. However, when I read comments on the internet, most people talk about immediately shooting the man (and that’s one of the more pleasant sentiments out there). I saw this as a teachable moment and wanted to reach out and shed some light on this issue.
First, we need to talk about property rights. Many people said that the employee was a trespasser, but was he? Probably not. Texas Penal Code 30.05 defines when a person is (or more importantly, isn’t) a trespasser. One exception to being a trespasser is outlined in subsection (e)(2)(A); an employee or agent of an electric or gas utility company has the right to enter a homeowner’s property to get to the meter. Since this man was employed by a subcontractor to Centerpoint Energy, this means he was not a trespasser. Also note that there is no legal requirement that he has to announce his presence before checking the meter, and he does not have to ask the homeowner to put up any dogs.
However, CenterPoint Energy has their own policy that goes beyond the bare bones of the law. Under company policy, the employee has a duty to ask that dogs are put up, and if the employee encounters any dogs, to retreat. It is unknown whether they also require the same for their subcontractors, but it seems likely that they do. Keep in mind, though, just because the employee violated company policy does not mean that he broke the law!
Did the Centerpoint Energy Contractor Break the Law?
So we know he wasn’t a trespasser, and we know he possibly violated company policy. The next question a lot of people asked was: did the CenterPoint employee break the law at all? The answer is that he probably did. Texas Penal Code 42.092 states that when he intentionally, and without consent, caused serious bodily injury to the animal, he committed the crime of animal cruelty (a state jail felony!).
The story doesn’t end there, though! Subsection (e)(2) of 42.092 creates a defense to the charge of “animal cruelty” if the animal was injured within the scope of the person’s employment in furtherance of activities or operations associated with natural gas delivery. At first glance, since he was a subcontractor for Centerpoint Energy, you would say he seems to be excluded from the crime of animal cruelty. However, recall our discussion earlier about Centerpoint Energy’s policies. Since he violated company policy, was he acting within the scope of his employment? This is an excellent question that will be hashed out between the contractor’s defense attorney and a prosecutor!
While it’s unclear as to whether or not he can dodge the Animal Cruelty charge, there’s another crime called “criminal mischief.” Under Texas law, dogs are considered property. This means that when the contractor began attacking the dogs, in the eyes of the law, it’s the same as if the contractor started smashing lawn furniture or breaking potted plants with his wrench. Under Texas Penal Code 28.03, if a person without the consent of the owner damages property, it is a crime (the severity of which depends on monetary damage done). Accordingly, from the facts, the state could potentially bring the charge of criminal mischief as an alternative to animal cruelty.
Could the homeowner have used deadly force to protect the dogs?
Since there is very little chance the homeowner felt afraid for his life (he was safely inside the house, and there was no indication that the Centerpoint contractor was going to attack him), we have to look to the “defense of property” statutes. A homeowner may use deadly force to protect property against criminal mischief, but only at night. If the criminal mischief occurs during the day, the homeowner can only respond with force.
So what could the homeowner have done?
Essentially, the homeowner could legally use force (punching, tackling, etc.) as long as it did not escalate to deadly force (death, or serious bodily injury). In Texas, under Texas Penal Code 9.04, you can show your gun and ask the employee to leave your property, and that is considered a use of force; not deadly force!
If this isn’t the outcome you were expecting, you’re not alone. The current law limits the ways homeowners can protect their pets, regardless of the status pets have as our family members. We don’t like this law and if you don’t either, contact your Texas legislature to get this fixed!