H. B. 4003


(By Delegate Compton)
[Introduced January 12, 2000; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact section four, article ten, chapter seven; section twelve, article twenty, chapter nineteen; section twenty-seven, article three, chapter sixty-one; and section nineteen, article eight, chapter sixty-one, all of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to animal protection and animal cruelty; increasing criminal penalties; providing for foster care outside of shelters for animals awaiting court proceedings against their owners; protecting against civil and criminal liability; clarifying exceptions applicable to dogs; and adding limited punitive damages and other recovery to current cause of action by owner whose pet is intentionally and unlawfully killed or injured.

Be it enacted by the Legislature of West Virginia:
That section four, article ten, chapter seven; section twelve, article twenty, chapter nineteen; section twenty-seven, article three, chapter sixty-one; and section nineteen, article eight, chapter sixty-one; all of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 10. HUMANE OFFICERS.

§7-10-4. Custody and care of animals abandoned, neglected or cruelly treated; hearing; liability for costs; exclusions.

(a) A humane officer shall take possession of any animal, including birds or wildlife in captivity, known or believed to be abandoned, neglected, deprived of necessary sustenance, shelter or medical care or cruelly treated or used, as defined in sections nineteen and nineteen-a, article eight, chapter sixty-one of this code.
(b) The owner, or person in possession, if his or her identity and residence is known, of any animal seized pursuant to subsection (a) of this section, shall be provided written notice of such seizure, their liability for the cost and care of the animal seized as herein provided, and the right to request a hearing before a magistrate in the county wherein the animal was seized. The magistrate court shall schedule any hearing so requested within ten working days of the receipt of the request. The failure of an owner or person in possession to request a hearing within five working days of the seizure shall be deemed prima facie evidence of the abandonment of said animal. At the hearing, if requested, the magistrate shall determine if probable cause exists to believe that such animal was abandoned, neglected or deprived of necessary sustenance, shelter or medical care, or otherwise treated or used cruelly as set forth herein.
(c) Upon finding of such probable cause, or if no hearing is requested, if the magistrate finds probable cause based upon the affidavit of the humane officer, the magistrate shall enter an order authorizing any humane officer to maintain possession of the animal pending further proceedings, appeal or the disposition of any criminal charges pursuant to chapter sixty-one of this code. During this period the humane officer, in cooperation with the humane society, is authorized to place the animal in a safe private home or other safe private setting for foster care in lieu of retaining the animal in an animal shelter, and the person whose animal is seized is liable for the costs of the care, medical treatment and provisions of the animal as if it were maintained in a pound or animal shelter.
(d) Any person whose animal is seized and against whom a finding of probable cause is rendered pursuant to this section is liable for the costs of the care, medical treatment and provisions for such animal during any period it remains in the possession of the humane officer.
(e) If, after the humane officer takes possession of the animal pursuant to the finding of probable cause, it is determined by a licensed veterinarian that the animal should be humanely destroyed to end its suffering, the veterinarian may order the animal to be humanely destroyed according to acceptable humane standards and neither the humane officer, humane society representative, animal foster care provider nor the veterinarian may be subject to any civil or criminal liability as a result of any such determination.
(f) The provisions of this section do not apply to farm livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock, poultry, gaming fowl, wildlife or game farm production and management, nor to the humane use of animals or activities regulated under and in conformity with the provisions of 7 U.S.C. § 2131 et seq. and the regulations promulgated thereunder, as both such statutes and regulations are in effect on the effective date of this section.
CHAPTER 19. AGRICULTURE.

ARTICLE 20. DOGS AND CATS.
§19-20-12. Dogs, other animals and reptiles protected by law; unlawful killing thereof; aggrieved owner's remedy; penalties; penalties for unlawful stealing of pets.

(a) Any dog which is registered, kept and controlled as provided in this article or any dog, cat, or other animal or any reptile which is owned, kept and maintained as a pet by any person, irrespective of age, shall be protected by law; and any person who shall intentionally and unlawfully kill, injure or poison any such dog, cat, other animal, or any reptile as specified above, or shall, in any other manner, intentionally and unlawfully cause the death or injury of any such dog, cat, other animal or any reptile shall be is guilty of a misdemeanor and, upon conviction thereof, shall be ordered to provide public service for not less than thirty nor more than ninety days, or fined not more than three hundred dollars, or both fined not less than five hundred dollars nor more than two thousand dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned. Any person whose dog, cat, other animal or reptile as specified herein shall be killed or injured wrongfully or unlawfully by any other person, or whose dog, cat, animal or reptile is stolen as provided in subsection (b) of this section shall have a right of action against the person who shall so kill, steal or injure such dog, cat, animal or reptile for damages, and where the animal was stolen, or the killing or injuring was intentional, damages may include punitive damages limited to one thousand dollars and damages for costs and attorney fees. but in no case involving a dog can recovery be had in excess of the assessed value of such dog
(b) Any person who shall intentionally and unlawfully steal a dog, cat, other animal or reptile as specified in subsection (a) of this section, shall be guilty of a misdemeanor and, upon conviction thereof, shall be ordered to provide public service for not less than thirty nor more than ninety days or fined not less than three hundred nor more than five hundred dollars, or both fined not less than five hundred dollars nor more than two thousand dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned. Any person violating the provisions of this subsection or subsection (a), shall for second or subsequent offense, be is guilty of a misdemeanor felony and, upon conviction thereof, shall be confined in the county jail for a period of not less than ninety days nor more than six months, or shall be ordered to provide public service for not more than one year, and fined not less than one thousand dollars imprisoned in a state correctional facility not less than one nor more than ten years. In no case can any action or prosecution relating to death, injury or theft of a dog under the provisions of this section be maintained if the dog concerned shall not have been duly registered pursuant to the provisions of this article or owned and kept pursuant to the provisions of this section or owned and kept pursuant to the provisions of this section at the time the cause of action shall have arisen.
(c) The commissioner of agriculture is hereby authorized to designate such reasonable number of his or her present employees as may be necessary to investigate alleged incidents of the unlawful stealing of dogs, other domestic animals or reptiles alleged incidents of cruelty to such animals or reptiles and the alleged incidents of the unlawful stealing of such animals or reptiles for the purpose of sale to medical or other research companies. Such The deputies shall make the results of their investigations known to any law-enforcement officers who have authority to enforce the provisions of this article.
(d) It shall be the duty of all members of the department of public safety West Virginia state police, sheriffs, and police officers to aid in the enforcement of the provisions of this article, and, for services rendered in the enforcement thereof, such persons shall be entitled to fees in the amounts set forth in section eight of this article. Such The fees shall be paid by the county commission from the dog and kennel fund.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-27. Malicious killing of animals by poison or otherwise; penalty.

If a person maliciously administers poison to, or exposes poison with the intent that it should be taken by, any horse, cow or other animal of another person, or if any person maliciously maims, kills, or causes the death of any horse, cow or other animal of another person, of the value of one hundred dollars or more, the person is guilty of a felony, and, upon conviction, shall be imprisoned in the penitentiary state correctional facility not less than one year nor more than ten years; and, if the horse, cow or other animal is of less value than one hundred dollars, the person is guilty of a misdemeanor and, upon conviction, shall be confined in the county or regional jail not more than three months one year and fined not more than five hundred dollars less than five hundred dollars nor more than two thousand dollars: Provided, That this section shall not be construed to include dogs not registered pursuant to article twenty, chapter nineteen of this code or owned and kept pursuant to section twelve of that article and chapter. Any person convicted of a second or subsequent offense pursuant to this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility no less than one year nor more than ten years.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19. Cruelty to animals; penalties; exclusions.
(a) If any person cruelly mistreats, abandons or withholds proper sustenance, including food, water, shelter or medical treatment necessary to sustain normal health and fitness or to end suffering or abandons any animal to die, or uses, trains or possesses any domesticated animal for the purpose of seizing, detaining or maltreating any other domesticated animal, he or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one five hundred nor more than one two thousand dollars, or confined in the county or regional jail not more than six months one year, or both so fined and confined imprisoned.
(b) Any person, other than a licensed veterinarian or a person acting under the direction or with the approval of a licensed veterinarian, who knowingly and willfully administers or causes to be administered to any animal participating in any contest any controlled substance or any other drug for the purpose of altering or otherwise affecting said animal's performance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one five hundred nor more than one two thousand dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned.
(c) Any person convicted of a violation of this section shall forfeit his or her interest in any such animal and all interest in such animal shall vest in the humane society or county pound of the county in which said conviction was rendered, and such person shall, in addition to any fine imposed, be liable for any costs incurred or to be incurred by the humane society or county pound as a result.
(d) For the purpose of this section, the term "controlled substance" shall have the same meaning ascribed to it by subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(e) The provisions of this section do not apply to lawful acts of hunting, fishing, trapping or animal training or farm livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock, poultry, gaming fowl or wildlife or game farm production and management, nor to humane use of animals or activities regulated under and in conformity with the provisions of 7 U.S.C. §2131 et seq. and the regulations promulgated thereunder, as both such statutes and regulations are in effect on the effective date of this section.
(f) Notwithstanding the other provisions of subsection (a) of this section, any person convicted of a second violation of said subsection under the provisions of this section is guilty of a misdemeanor and shall be confined in jail for a period of not less than ninety days nor more than one year, fined not less than five hundred dollars nor more than one thousand dollars, or both. Any person convicted of a third or subsequent violation under this section or any combination of violations under this section; section twenty-seven, article three, chapter sixty-one dealing with malicious killing of animals by poison or otherwise; or section twelve, article twenty, chapter nineteen dealing with unlawful killing, injuring, poisoning or stealing of protected animals is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than ten years. The incarceration set forth in this subsection shall be mandatory unless the provisions of subsection (g) are complied with.
(g) Notwithstanding any provision of this code to the contrary, no person who has been convicted of a second or subsequent violation of the provisions of subsection (a) of this section may be granted probation until the defendant has undergone a complete psychiatric or psychological evaluation and the court has reviewed such evaluation. Unless the defendant is determined by the court to be indigent, he or she shall be responsible for the cost of said evaluation.
(h) In addition to any other penalty which can be imposed for a violation of this section, a court may, as a condition of probation, prohibit any person so convicted from possessing or owning any animal or type of animal during the period of probation.
(i) In recognition of the importance of protecting society against individuals who abuse animals, it is the duty of all members of the West Virginia state police, sheriffs and police officers to aid in the enforcement of the provisions of this section in the state's courts, rather than relegating enforcement to courts of other jurisdictions.



NOTE: This bill strengthens the penalties for cruelty to animals and for the unlawful killing, injuring, poisoning, drugging and stealing of animals, and makes penalties for such offenses more uniform. It also provides that animals seized under the animal cruelty statute and held pending trial of the owners may be placed, in cooperation with the Humane Society, in private animal foster care in lieu of confinement to a pound or animal shelter.

The bill clarifies current code language excepting offenses involving certain dogs, and extends the current right of action of an owner whose animal is intentionally and wrongfully or unlawfully killed or injured, to permit limited punitive damages, costs and attorney fees.

The bill requires law-enforcement officers to aid in enforcing the bill's provisions in state courts in order to avoid lack of uniform enforcement in municipal courts.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.