Senate Bill No. 485
(By Senators Sypolt, Barnes, Yost, Hall, Stollings, Boley and
Chafin)
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[Introduced February 5, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §7-10-4 of the Code of West Virginia,
1931, as amended, relating to requiring a humane officer to
notify the magistrate court when the officer has taken into
custody an animal that has been abandoned or neglected.
Be it enacted by the Legislature of West Virginia:
That §7-10-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 10. HUMANE OFFICERS.
§7-10-4. Custody and care of animals abandoned, neglected or
cruelly treated; hearing; bonds; liability for costs;
liens; exclusions.
(a) Subject to the provisions of subsection (h) of this
section, 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,
medical care or reasonable protection from fatal freezing or heat
exhaustion or cruelly treated or used as defined in sections
nineteen and nineteen-a, article eight, chapter sixty-one of this
code.
(b) The magistrate court and the owner or persons in
possession, if his or her identity and residence are known, of any
animal seized pursuant to subsection (a) of this section shall be
provided written notice of the seizure, his or her liability for
the cost and care of the animal seized as provided in this section
and the right to request a hearing in writing before a magistrate
in the county where the animal was seized. The magistrate court
shall schedule any hearing 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 is prima facie evidence of the abandonment of the animal.
At the hearing, if requested, the magistrate shall determine by a
preponderance of the evidence if the animal was abandoned,
neglected or deprived of necessary sustenance, shelter, medical
care or reasonable protection from fatal freezing or heat
exhaustion or otherwise treated or used cruelly as set forth in
this section.
(c) (1) If a hearing is requested and the magistrate finds by a preponderance of the evidence that the owner did abandon, neglect
or cruelly treat the animal, or if no hearing is requested and the
magistrate finds by a preponderance of the evidence, based upon the
affidavit of the humane officer, that the owner did abandon,
neglect or cruelly treat the animal, the magistrate shall enter an
order awarding custody of the animal to any humane officer for
further disposition in accordance with reasonable practices for the
humane treatment of animals. After hearing the evidence, if the
magistrate is not convinced the animal was neglected or cruelly
treated, he or she may dismiss the action and order the animal be
returned to the owner. If the magistrate finds in favor of the
humane officer, the owner of the animal shall post a bond with the
court in an amount sufficient to provide for the reasonable costs
of care, medical treatment and provisions for the animal for at
least thirty days. The bond shall be filed with the court within
five days following the court's finding against the owner. At the
end of the time for which expenses are covered by the original bond
if the animal remains in the care of the humane officer and the
owner desires to prevent disposition of the animal by the humane
officer, the owner shall post an additional bond with the court
within five days of the expiration of the original bond. During
this period the humane officer is authorized to place the animal in
a safe private home or other safe private setting in lieu of retaining the animal in an animal shelter. The person whose animal
is seized is liable for all costs of the care of the seized animal.
(2) If a bond has been posted in accordance with subdivision
(1) of this subsection, the custodial animal care agency may draw
from the bond the actual reasonable costs incurred by the agency in
providing care, medical treatment and provisions to the impounded
animal from the date of the initial impoundment to the date of the
final disposition of the animal.
(d) Any person whose animal is seized and against whom the
magistrate enters a finding pursuant to this section is liable
during any period it remains in the possession of the humane
officer for the reasonable costs of care, medical treatment and
provisions for the animal not covered by the posting of the bond as
provided in subdivision (1), subsection (c) of this section. The
magistrate shall require the person liable for these costs to post
bond to provide for the maintenance of the seized animal. This
expense, if any, becomes a lien on the animal and must be
discharged before the animal is released to the owner. Upon
dismissal or withdrawal of the complaint, any unused portion of
posted bonds shall be returned to the owner. Upon a finding in
favor of the humane officer, all interest in the impounded animal
shall transfer to the humane officer for disposition in accordance
with reasonable practices for the humane treatment of animals. Any additional expense above the value of the animal may be recovered
by the humane officer or custodial agency.
(e) After the humane officer takes possession of the animal
pursuant to a finding by a magistrate that the animal has been
abandoned, neglected or cruelly treated and a licensed veterinarian
determines that the animal should be humanely destroyed to end its
suffering, the veterinarian may order the animal to be humanely
destroyed and neither the humane officer, animal euthanasia
technician nor the veterinarian is subject to any civil or criminal
liability as a result of the action.
(f) (1) The term "humanely destroyed" as used in this section
means:
(A) Humane euthanasia of an animal by hypodermic injection by
a licensed veterinarian or by an animal euthanasia technician
certified in accordance with the provisions of article ten-a,
chapter thirty of this code; or
(B) Any other humane euthanasia procedure approved by the
American Veterinary Medical Association, the Humane Society of the
United States or the American Humane Association.
(2) The term "humanely destroyed" does not include euthanizing
an animal by means of a gas chamber: Provided, That any county
which has a gas chamber in operation as of the effective date of
this section may continue to operate the gas chamber subject to the following: (1) The gas chamber shall be operated by an animal
euthanasia technician certified pursuant to article ten-a, chapter
thirty of this code; and (2) the gas chamber shall have been
manufactured and installed by a person who regularly manufactures
and installs gas chambers. The Board of Veterinary Medicine shall
promulgate emergency rules regarding the inspection of gas
chambers, pursuant to section fifteen, article three, chapter
twenty-nine-a of this code.
(g) In case of an emergency in which an animal cannot be
humanely destroyed in an expeditious manner, an animal may be
destroyed by shooting if:
(1) The shooting is performed by someone trained in the use of
firearms with a weapon and ammunition of suitable caliber and other
characteristics designed to produce instantaneous death by a single
shot; and
(2) Maximum precaution is taken to minimize the animal's
suffering and to protect other persons and animals.
(h) The provisions of this section do not apply to farm
livestock, as defined in subsection (d), section two, article
ten-b, chapter nineteen of this code; 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.
(i) All persons or entities in the state performing euthanasia
under this article shall register with the board of Veterinary
Medicine by December 31, 2009, in a manner to be prescribed by the
board. The Board of Veterinary Medicine shall promulgate emergency
rules relating to the registration of those performing animal
euthanasia, pursuant to section fifteen, article three, chapter
twenty-nine-a of this code.
NOTE: The purpose of this bill is to require a humane officer
to notify the magistrate court when the officer has taken into
custody an animal that has been abandoned or neglected.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.