Section 42.091 protects service animals. It reaches not only deliberate attacks but also owners who recklessly let their own dog attack one — which is how the great majority of these cases arise.
What the Statute Says
(a) A person commits an offense if the person intentionally, knowingly, or recklessly attacks, injures, or kills an assistance animal.
(b) A person commits an offense if the person intentionally, knowingly, or recklessly incites or permits an animal owned by or otherwise in the custody of the actor to attack, injure, or kill an assistance animal and, as a result of the person's conduct, the assistance animal is attacked, injured, or killed.
Penalties
| Result | Offense level | Punishment |
|---|---|---|
| The assistance animal is attacked | Class A Misdemeanor | Up to 1 year county jail, up to $4,000 fine |
| The assistance animal is injured | State Jail Felony | 180 days – 2 years state jail |
| The assistance animal is killed | Third-Degree Felony | 2 – 10 years in prison |
The court is directed to order restitution, which in these cases is frequently larger than the fine — veterinary care, retraining, and the replacement cost of a fully trained assistance animal can run into the tens of thousands of dollars.
The Owner Theory — Subsection (b)
Most defendants under this statute never touched the service animal. They are charged because their dog did. The State must prove the accused intentionally, knowingly, or recklessly incited or permitted it, and that an attack, injury, or death resulted.
Recklessness under Section 6.03 means the person was aware of a substantial and unjustifiable risk and consciously disregarded it. Relevant facts include:
- Whether the dog had any history of aggression known to the owner
- Whether it was leashed, fenced, or contained, and whether the containment failed
- Whether the owner had been warned before
- Whether the encounter was sudden and unforeseeable
A first-time escape by a dog with no history is very different from repeatedly letting a known aggressive animal run loose, and the difference is the whole case.
Defenses
No recklessness. As above — a gate left open by a third party, a leash that broke, a fence damaged in a storm.
Not an assistance animal. The statute protects animals specially trained or in training to assist a person with a disability. Pets, emotional support animals that do not meet the definition, and untrained animals may fall outside it.
Causation and injury. Veterinary records often show no injury or an injury from another source. The offense level depends entirely on the result.
Provocation and defense. Where the assistance animal initiated the encounter, or where the accused acted to protect a person, the mental state is in doubt.
Identity of the animal's owner. In multi-dog households and apartment complexes, which dog and whose dog are frequently contested.
Related
- Section 38.151 — interference with police service animals
- Section 42.09 — cruelty to livestock animals · Section 42.092 — cruelty to nonlivestock animals
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.