Last week I was doing barn clean-up while the horses were in with their fans and hay. Our usual routine during this time of year is to rotate the three geldings one at a time through the end stall on Salina's side of the barn - in the afternoon I close the sunny end of the barn and that stall feeds to the grass paddock at that end - so each gelding gets an afternoon to himself, the other two geldings get to share the three stalls on their side of the barn, and everyone gets a little change of routine which seems to keep them happy.
Since Salina's pressure wound is still healing (it's much better but she has had to regenerate skin tissue over the hip point which is taking time) and she is on limited night-time turn-out, I like giving her that entire side of the barn so she can have her choice of stalls, barnyards, etc. The donkeys stay with her at night when we bring her in, so it gives them more options as well.
Keil Bay and Cody have become extremely close buddies over the past year. They've always enjoyed grazing together, but this year I've noticed that Cody enjoys going into Keil Bay's stall and they stand in there and nap together during the hottest part of the day. It also effectively shuts down the pony's favorite thing to do - which is run Cody out of whatever stall he's in, and take over Keil Bay's stall, which makes Keil really angry. (this was why I started rotating them to the other side of the barn, to give each one a break from the pony!)
But when Cody and Keil Bay are in one stall there is no room for the pony to squeeze in. He can't chase Cody out if he has to get past Keil Bay to do it. And he can't horn in on Keil's space if Cody is already in there.
I had to laugh when I witnessed this new dynamic. And I noticed that the pony and Redford had become grazing buddies - Redford goes through the fence during the day to head out and graze with the pony. But for whatever reason, maybe just because the pony and Keil were the first "pair" to live here together, Apache Moon has not given up trying to get that best buddy spot back.
The day I was seeing all this last week was also a day when I rode the Big Bay, and while I was tacking up, he and Cody had a mutual grooming session over the stall door. I noticed the pony watching this closely - and then he came into Cody's stall and chased him out, right at the time when Keil and I were heading to the arena.
When we got back to the barn and I put Keil in his stall, Apache was watching and waiting and managed to beat Cody in there.
But instead of being bossy and taking over Keil's best fan spot, Apache started a very meticulous mutual grooming session. He was so obviously doing his best job, using his lips and teeth gently, moving up and down along Keil's neck (which he has to reach up to do) and paying close attention to what Keil Bay wanted. It was only a moment before Keil reciprocated and the two of them stood there for nearly half an hour.
Cody was in his stall looking left out.
Salina was by this time in her stall getting her first lunch. When I let her out, she took one look at the pony taking over Keil Bay (he is her favorite too), marched briskly to his stall door and started flagging. The pony lunged at her from inside the stall. She didn't back up, but she had to turn her head to keep clear of the pony's bared teeth.
Apache had lured his best buddy back and he wasn't letting even the boss mare stop him.
I admit, the next day I let Keil spend the day with Salina on her side of the barn, with both stall doors open so they could intermingle as they wished. Salina got a full body bath and we soaped and sponged and sprayed all her favorite spots. The donkeys were happy to go out with Cody and the pony. And Keil Bay and Salina got some senior time together.
I'm still fascinated by the connections they each make and how they reconfigure as needed when they feel the bonds being shifted.
As an aside, Keil and I had several nice rides last week. The nicest thing was how absolutely good my body felt in the saddle. We walked, did a little sitting trot, and for the most part Keil Bay led the ride. He found a nice figure 8 pattern using the entire arena and when the sun came out from behind the clouds, he headed for the shade offered by one or the other of the big oak trees. I rode on the buckle with one hand on the reins and enjoyed my relaxed body and the Big Bay's lovely stride. It was another of those days when it felt like we were back in time, riding because that was the way one got from one place to another.
Right now Apache Moon has come to my window to remind me that yes, it's time for breakfast tubs!
And this just in, research on Monty Roberts' round pen training method.
I'm not a fan of training methods that use the "make something so unpleasant they do what you ask" pressure - it's not anything I'd want anyone using on me. Certainly does nothing for developing a relationship built on partnership, and this research seems to address that aspect of this kind of training.
billie hinton’s camera-obscura:
life and lessons on November Hill Farm
Monday, July 16, 2012
Saturday, June 30, 2012
bald-faced hornets and heat waves
Popping in briefly to share what I think is a fascinating example of how the larger ecosystem of November Hill works.
After a mild winter, in spite of using fly predators and fly strips and doing all the things one is supposed to do to reduce flies around the barn, we were still seeing what I consider a lot of them.
We used Summer Whinnies for Salina and Keil Bay as needed, liberal amounts of my summer of 2012 fly spray concoction, fly masks, and even with all this, I still felt there were just Too Many Flies.
Suddenly we noticed a new face around the barn.
These bald-faced hornets were around the barn doors, inside the barn itself, and although they didn't feel aggressive to me, we researched them to find out what we were dealing with.
As it turns out they are considered quite docile in terms of hornet personality, and I found several mentions online of these hornets hunting flies. So when I went back out, I started observing. Indeed, they were in the barn hunting flies. We decided to let them stay and see what happened.
A week later, in spite of rain and heat which usually make the number of flies explode, my sticky fly strips are nearly empty. The Summer Whinnies are in the tack room, clean and ready but not needed. The horses are happy and not fussing.
And the bald-faced hornets have moved on. I saw two yesterday.
We hoped to find their nest, but thus far haven't found it. These nests are pretty stunning to me, and I'd love to see one:
Now that the hornets are gone we're dealing with the heat wave that seems to be affecting much of the United States this weekend. Yesterday it was 101.8 in our barn aisle, and needless to say, we're doing a lot of cold hosing, feeding extra salt in the feed tubs, and keeping a close eye on all of us as we move on with routine during this extreme heat.
It is day two of a five-day wave, and we're moving slowly, taking our time with chores, keeping cold drinks in the barn, and of course doing no riding. 90 degrees F will seem like a cool spell after this!
Hope all are faring well as we move into July!
After a mild winter, in spite of using fly predators and fly strips and doing all the things one is supposed to do to reduce flies around the barn, we were still seeing what I consider a lot of them.
We used Summer Whinnies for Salina and Keil Bay as needed, liberal amounts of my summer of 2012 fly spray concoction, fly masks, and even with all this, I still felt there were just Too Many Flies.
Suddenly we noticed a new face around the barn.
These bald-faced hornets were around the barn doors, inside the barn itself, and although they didn't feel aggressive to me, we researched them to find out what we were dealing with.
As it turns out they are considered quite docile in terms of hornet personality, and I found several mentions online of these hornets hunting flies. So when I went back out, I started observing. Indeed, they were in the barn hunting flies. We decided to let them stay and see what happened.
A week later, in spite of rain and heat which usually make the number of flies explode, my sticky fly strips are nearly empty. The Summer Whinnies are in the tack room, clean and ready but not needed. The horses are happy and not fussing.
And the bald-faced hornets have moved on. I saw two yesterday.
We hoped to find their nest, but thus far haven't found it. These nests are pretty stunning to me, and I'd love to see one:
Now that the hornets are gone we're dealing with the heat wave that seems to be affecting much of the United States this weekend. Yesterday it was 101.8 in our barn aisle, and needless to say, we're doing a lot of cold hosing, feeding extra salt in the feed tubs, and keeping a close eye on all of us as we move on with routine during this extreme heat.
It is day two of a five-day wave, and we're moving slowly, taking our time with chores, keeping cold drinks in the barn, and of course doing no riding. 90 degrees F will seem like a cool spell after this!
Hope all are faring well as we move into July!
Monday, June 25, 2012
make a nesting now
The wonderful Alexander Shaia is here spending time
with a few of us sandplay therapists this week and last night he read
this poem.
Alexander has a wonderful book out that talks about what he calls the Quadratos journey. You can read more about that HERE.
Coleman's Bed
Make a nesting now, a place to which
the birds can come, think of Kevin's
prayerful palm holding the blackbird's egg
and be the one, looking out from this place
who warms interior forms into light.
Feel the way the cliff at your back
gives shelter to your outward view
and then bring in from those horizons
all discordant elements that seek a home.
Be taught now, among the trees and rocks,
how the discarded is woven into shelter,
learn the way things hidden and unspoken
slowly proclaim their voice in the world.
Find that far inward symmetry
to all outward appearances, apprentice
yourself to yourself, begin to welcome back
all you sent away, be a new annunciation,
make yourself a door through which
to be hospitable, even to the stranger in you.
See with every turning day,
how each season makes a child
of you again, wants you to become
a seeker after rainfall and birdsong,
watch now, how it weathers you
to a testing in the tried and true,
admonishes you with each falling leaf,
to be courageous, to be something
that has come through, to be the last thing
you want to see before you leave the world.
Above all, be alone with it all,
a hiving off, a corner of silence
amidst the noise, refuse to talk,
even to yourself, and stay in this place
until the current of the story
is strong enough to float you out.
Ghost then, to where others
in this place have come before,
under the hazel, by the ruined chapel,
below the cave where Coleman slept,
become the source that makes
the river flow, and then the sea
beyond. Live in this place
as you were meant to and then,
surprised by your abilities,
become the ancestor of it all,
the quiet, robust and blessed Saint
that your future happiness
will always remember.
David Whyte from River Flow: New & Selected Poems 1984-2007
©2006 Many Rivers Press
Alexander has a wonderful book out that talks about what he calls the Quadratos journey. You can read more about that HERE.
Coleman's Bed
Make a nesting now, a place to which
the birds can come, think of Kevin's
prayerful palm holding the blackbird's egg
and be the one, looking out from this place
who warms interior forms into light.
Feel the way the cliff at your back
gives shelter to your outward view
and then bring in from those horizons
all discordant elements that seek a home.
Be taught now, among the trees and rocks,
how the discarded is woven into shelter,
learn the way things hidden and unspoken
slowly proclaim their voice in the world.
Find that far inward symmetry
to all outward appearances, apprentice
yourself to yourself, begin to welcome back
all you sent away, be a new annunciation,
make yourself a door through which
to be hospitable, even to the stranger in you.
See with every turning day,
how each season makes a child
of you again, wants you to become
a seeker after rainfall and birdsong,
watch now, how it weathers you
to a testing in the tried and true,
admonishes you with each falling leaf,
to be courageous, to be something
that has come through, to be the last thing
you want to see before you leave the world.
Above all, be alone with it all,
a hiving off, a corner of silence
amidst the noise, refuse to talk,
even to yourself, and stay in this place
until the current of the story
is strong enough to float you out.
Ghost then, to where others
in this place have come before,
under the hazel, by the ruined chapel,
below the cave where Coleman slept,
become the source that makes
the river flow, and then the sea
beyond. Live in this place
as you were meant to and then,
surprised by your abilities,
become the ancestor of it all,
the quiet, robust and blessed Saint
that your future happiness
will always remember.
David Whyte from River Flow: New & Selected Poems 1984-2007
©2006 Many Rivers Press
Thursday, June 21, 2012
Jason Owens re: the roping donkeys: "I'm gonna use 'em."
This just about sums it up.
Jason Owens of Dos Gringos Productions, who "owns" the donkeys that were to be used for roping in the Van Horn event this weekend, made a lot of promises to people who called to express their concern about the welfare of these animals.
Once he got in front of a TV camera he changed his tune.
I
don't know Mr. Owens and have not spoken with him myself. However, I
believe that this famous quote by Mahatma Gandhi holds true:
The greatness of a nation and its moral progress can be judged by the ways its animals are treated.
And I think we can tweak that to also say:
The character of a man can be judged by the way he treats his animals.
Using
a herd of donkeys who have according to Mr. Owens already been starved
and abused to earn money by prodding them with electricity, scaring them
into running, and letting team ropers stretch them out flat on the
ground, over and over again, is cruelty, plain and simple.
There's another old saying that might apply in this case.
When we know better, we do better.
Mr.
Owens, I believe at this point you probably do know better. Why not do
the right thing and release these donkeys to Peaceful Valley Donkey
Rescue so they can live the rest of their lives without doing anything
but being what they are: peaceful, loving, sensitive animals?
If
you choose not to release them, perhaps you might commit to change not
only their lives but your own. Give them that peaceful, well-cared-for
life yourself. Let the money you spend on them be what you will find is a
very modest payment for the pure love and joy they give when treated
with respect and dignity.
And if not, if you choose to keep on, in your own words, "using 'em," just remember this:
There
are many, many people watching and working to make what you do illegal
if it's not already so. There are cameras and video cameras and people
who don't mind using them to document terrible things.
HERE IS THE LINK TO THE INTERVIEW broadcast by the NBC affiliate in Midland, Texas on last night's evening news.
At the 1:23 mark, Jason Owens says, "We haven't done anything wrong and I'm not gonna surrender these donkeys.
I'm gonna use 'em. I'll sell them if these guys wanna buy 'em."
ADDENDUM;
Texas Penal Code re: livestock:
(1) tortures a livestock animal;
(2) fails unreasonably to provide necessary food, water, or care for a livestock animal in the person's custody;
(3) abandons unreasonably a livestock animal in the person's custody;
(4) transports or confines a livestock animal in a cruel and unusual manner;
(5) administers poison to a livestock animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner's effective consent;
(6) causes one livestock animal to fight with another livestock animal or with an animal as defined by Section 42.092;
(7) uses a live livestock animal as a lure in dog race training or in dog coursing on a racetrack;
(8) trips a horse; or
(9) seriously overworks a livestock animal.
(b) In this section:
(1) “Abandon” includes abandoning a livestock animal in the person's custody without making reasonable arrangements for assumption of custody by another person.
(2) “Cruel manner” includes a manner that causes or permits unjustified or unwarranted pain or suffering.
(3) “Custody” includes responsibility for the health, safety, and welfare of a livestock animal subject to the person's care and control, regardless of ownership of the livestock animal.
(4) “Depredation” has the meaning assigned by Section 71.001, Parks and Wildlife Code.
(5) “Livestock animal” means:
(A) cattle, sheep, swine, goats, ratites, or poultry commonly raised for human consumption;
(B) a horse, pony, mule, donkey, or hinny;
(C) native or nonnative hoofstock raised under agriculture practices; or
(D) native or nonnative fowl commonly raised under agricultural practices.
(6) “Necessary food, water, or care” includes food, water, or care provided to the extent required to maintain the livestock animal in a state of good health.
(7) “Torture” includes any act that causes unjustifiable pain or suffering.
(8) “Trip” means to use an object to cause a horse to fall or lose its balance.
(c) An offense under Subsection (a)(2), (3), (4), or (9) is a Class A misdemeanor, except that the offense is a state jail felony if the person has previously been convicted two times under this section, two times under Section 42.092, or one time under this section and one time under Section 42.092. An offense under Subsection (a)(1), (5), (6), (7), or (8) is a state jail felony, except that the offense is a felony of the third degree if the person has previously been convicted two times under this section, two times under Section 42.092, or one time under this section and one time under Section 42.092.
(d) It is a defense to prosecution under Subsection (a)(8) that the actor tripped the horse for the purpose of identifying the ownership of the horse or giving veterinary care to the horse.
(e) It is a defense to prosecution for an offense under this section that the actor was engaged in bona fide experimentation for scientific research.
(f) It is an exception to the application of this section that the conduct engaged in by the actor is a generally accepted and otherwise lawful:
(1) form of conduct occurring solely for the purpose of or in support of:
(A) fishing, hunting, or trapping; or
(B) wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; or
(2) animal husbandry or agriculture practice involving livestock animals.
(g) This section does not create a civil cause of action for damages or enforcement of this section.
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 917, ch. 342, § 12, eff. Sept. 1, 1975; Acts 1985, 69th Leg., ch. 549, § 1, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 78, § 1, eff. Aug. 26, 1991. Renumbered from V.T.C.A., Penal Code § 42.11 and amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 318, § 15, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1283, § 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 54, § 3, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 450, § 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1275, § 2(116), eff. Sept. 1, 2003; Acts 2007, 80th Leg., ch. 886, § 1, eff. Sept. 1, 2007.
I believe this position paper from the Texas Attorney General's Office provides a clear path to making the case that donkey roping is in the same category as horse tripping:
ATTORNEY GENERAL
Re: Whether the activity known as "horse tripping" is prohibited by section
42.09 of the Penal Code (ID# 29575)
OPINION:
Honorable John Whitmire
Chair
Criminal Justice Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711
You have requested our opinion as to whether the activity known as "horse tripping" is prohibited by section 42.09 of the Penal Code. You have submitted with your request an article from the July, 1994, issue of Horse Illustrated magazine, which describes the practice, as "an event in which a usually young, usually Arabian, underweight horse bound for slaughter is whipped and shouted into a run, so that it can then be tripped with a lariat by a man, a Charro, either on horseback or on the ground . . ."
The article continues: "The goal is to make the horse fall. The horse's rear legs may be pulled out from under it while at a dead run, or its front legs are roped, causing it to tumble forward. The horses' lives end in misery and the injuries they sustain -- both physical and emotional -- have horrified the handful of veterinarians who have been called in to treat the few horses who have been rescued from this fate."
At the time the article was written, the state of California was considering a bill which would specifically criminalize this activity. On September 19, 1994, the governor signed the bill into law. [FN 1]
Section 42.09 of the [Texas] Penal Code proscribes injury to "an animal . . . belonging to another," but excepts from this prohibition the injuring of "cattle, horses, sheep, swing [and] goats." Penal Code s 42.09(a)(5). Another portion of the statute, however, provides that "[a] person commits an offense if he intentionally or knowingly: (1) tortures or seriously overworks an animal." Id. s 42.09(a)(1). "Animal" is broadly defined to mean "a domesticated living creature and wild living creature previously captured." Id. s 42.09(c). Thus, the question you pose is whether the practice of "horse tripping," as described, would constitute "torture."
In Attorney General Opinion H-56 (1973), this office considered whether particular conduct violated article 1374, V.T.C.S. That statute, the source law for article 42.09 of the Penal Code, provided that "[w]hoever . . . tortures, torments . . . or needlessly mutilates or kills any animal . . . shall be fined not exceeding two hundred dollars."
The practice at issue in Attorney General Opinion H-56 was "a pigeon shoot, in which the birds are released as targets, after first having their tail feathers plucked out to effect an erratic mode of flight." The opinion declared that "[i]n common parlance 'torture' and 'torment' have virtually the same meaning, i.e., to cause intense suffering." Attorney General Opinion H-56 at 2. Although the opinion correctly stated that "[w]hether or not people participating in a particular pigeon shoot violate the law ultimately will be a question for jury determination," it did hold that the statute was "sufficiently specific and . . . constitutional insofar as it outlaws the torturing, tormenting, and needlessly mutilating of animals." Id. at 3. Furthermore, the opinion concluded that the conduct described by the requestor "would be sufficient . . . to uphold a conviction of violation of Article 1374 . . ." Id.
In our opinion, the activity about which you inquire -- "horse tripping" -- as depicted in the article from Horse Illustrated, is sufficiently cruel and sadistic that a jury could reasonably conclude that it constitutes "torture." Since "torture" is no longer defined in Texas law, we believe that a jury would be obliged to construe the term in accordance with its commonly understood meaning.
The verb "torture" means "[t]o inflict severe pain or suffering upon; to torment; to distress or afflict grievously." OXFORD ENGLISH DICTIONARY (2d ed. 1989), v. 18, at 278. In a case whose facts are similar to those you present here, a Maryland court considered whether the intentional burning of a dog was unlawful under state law. The court declared "that the burning of a dog to the extent that he had to be destroyed constitutes torture, torment and cruelty," and that no "person of ordinary intelligence" could conclude otherwise. In re William G., 447 A.2d 493, 496 (Md. Ct. Spec. App. 1982). Although, as the author of Attorney General Opinion H-56 indicates, whether a defendant's act constitutes "torture" must ultimately be resolved by a jury, we believe that a jury finding that a defendant had intentionally engaged in the conduct you have described "would be held sufficient to uphold a conviction of violation of" section 42.09(a)(1) of the Penal Code.
SUMMARY
A finding that a person has intentionally engaged in the activity known as "horse tripping" is sufficient to support a conviction for "torturing an animal" under section 42.09(a)(1) of the Penal Code.
ADDENDUM;
Texas Penal Code re: livestock:
§ 42.09. Cruelty to Livestock Animals
(a) A person commits an offense if the person intentionally or knowingly:(1) tortures a livestock animal;
(2) fails unreasonably to provide necessary food, water, or care for a livestock animal in the person's custody;
(3) abandons unreasonably a livestock animal in the person's custody;
(4) transports or confines a livestock animal in a cruel and unusual manner;
(5) administers poison to a livestock animal, other than cattle, horses, sheep, swine, or goats, belonging to another without legal authority or the owner's effective consent;
(6) causes one livestock animal to fight with another livestock animal or with an animal as defined by Section 42.092;
(7) uses a live livestock animal as a lure in dog race training or in dog coursing on a racetrack;
(8) trips a horse; or
(9) seriously overworks a livestock animal.
(b) In this section:
(1) “Abandon” includes abandoning a livestock animal in the person's custody without making reasonable arrangements for assumption of custody by another person.
(2) “Cruel manner” includes a manner that causes or permits unjustified or unwarranted pain or suffering.
(3) “Custody” includes responsibility for the health, safety, and welfare of a livestock animal subject to the person's care and control, regardless of ownership of the livestock animal.
(4) “Depredation” has the meaning assigned by Section 71.001, Parks and Wildlife Code.
(5) “Livestock animal” means:
(A) cattle, sheep, swine, goats, ratites, or poultry commonly raised for human consumption;
(B) a horse, pony, mule, donkey, or hinny;
(C) native or nonnative hoofstock raised under agriculture practices; or
(D) native or nonnative fowl commonly raised under agricultural practices.
(6) “Necessary food, water, or care” includes food, water, or care provided to the extent required to maintain the livestock animal in a state of good health.
(7) “Torture” includes any act that causes unjustifiable pain or suffering.
(8) “Trip” means to use an object to cause a horse to fall or lose its balance.
(c) An offense under Subsection (a)(2), (3), (4), or (9) is a Class A misdemeanor, except that the offense is a state jail felony if the person has previously been convicted two times under this section, two times under Section 42.092, or one time under this section and one time under Section 42.092. An offense under Subsection (a)(1), (5), (6), (7), or (8) is a state jail felony, except that the offense is a felony of the third degree if the person has previously been convicted two times under this section, two times under Section 42.092, or one time under this section and one time under Section 42.092.
(d) It is a defense to prosecution under Subsection (a)(8) that the actor tripped the horse for the purpose of identifying the ownership of the horse or giving veterinary care to the horse.
(e) It is a defense to prosecution for an offense under this section that the actor was engaged in bona fide experimentation for scientific research.
(f) It is an exception to the application of this section that the conduct engaged in by the actor is a generally accepted and otherwise lawful:
(1) form of conduct occurring solely for the purpose of or in support of:
(A) fishing, hunting, or trapping; or
(B) wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law; or
(2) animal husbandry or agriculture practice involving livestock animals.
(g) This section does not create a civil cause of action for damages or enforcement of this section.
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 917, ch. 342, § 12, eff. Sept. 1, 1975; Acts 1985, 69th Leg., ch. 549, § 1, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 78, § 1, eff. Aug. 26, 1991. Renumbered from V.T.C.A., Penal Code § 42.11 and amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 318, § 15, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1283, § 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 54, § 3, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 450, § 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1275, § 2(116), eff. Sept. 1, 2003; Acts 2007, 80th Leg., ch. 886, § 1, eff. Sept. 1, 2007.
I believe this position paper from the Texas Attorney General's Office provides a clear path to making the case that donkey roping is in the same category as horse tripping:
ATTORNEY GENERAL
STATE OF TEXAS
Letter Opinion No. 94-095
December 21, 1994
Re: Whether the activity known as "horse tripping" is prohibited by section
42.09 of the Penal Code (ID# 29575) OPINION:
Honorable John Whitmire
Chair
Criminal Justice Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711
You have requested our opinion as to whether the activity known as "horse tripping" is prohibited by section 42.09 of the Penal Code. You have submitted with your request an article from the July, 1994, issue of Horse Illustrated magazine, which describes the practice, as "an event in which a usually young, usually Arabian, underweight horse bound for slaughter is whipped and shouted into a run, so that it can then be tripped with a lariat by a man, a Charro, either on horseback or on the ground . . ."
The article continues: "The goal is to make the horse fall. The horse's rear legs may be pulled out from under it while at a dead run, or its front legs are roped, causing it to tumble forward. The horses' lives end in misery and the injuries they sustain -- both physical and emotional -- have horrified the handful of veterinarians who have been called in to treat the few horses who have been rescued from this fate."
At the time the article was written, the state of California was considering a bill which would specifically criminalize this activity. On September 19, 1994, the governor signed the bill into law. [FN 1]
[FN 1] That bill, enacting section 597g of the California Penal Code, provides: "(a) Poling a horse is a method of training horses to jump which consists of (1) forcing, persuading, or enticing a horse to jump in such manner that one or more of its legs will come into contact with an obstruction consisting of any king of wire, or a pole, stick, rope or other object with brads, nails, tacks or other sharp points imbedded therein or attached thereto or (2) raising, throwing or moving a pole, stick, wire, rope or other object, against one or more of the legs of a horse while it is jumping an obstruction so that the horse, in either case, is induced to raise such leg or legs higher in order to clear the obstruction. Tripping a horse is an act that consists of the use of any wire, pole, stick, rope, or other object or apparatus whatsoever to cause a horse to fall or lose its balance. The poling or tripping of any horse is unlawful and any person violating the provisions of this section is guilty of a misdemeanor.
"(b) It is a misdemeanor for any person to intentionally trip or fell an equine by the legs by any means whatsoever for the purposes of entertainment or sport.
(c) This section does not apply to the lawful laying down of a horse for medical or identification purposes, nor shall the section be construed as condemning or limiting any cultural or historical activities, except those prohibited herein."
Section 42.09 of the [Texas] Penal Code proscribes injury to "an animal . . . belonging to another," but excepts from this prohibition the injuring of "cattle, horses, sheep, swing [and] goats." Penal Code s 42.09(a)(5). Another portion of the statute, however, provides that "[a] person commits an offense if he intentionally or knowingly: (1) tortures or seriously overworks an animal." Id. s 42.09(a)(1). "Animal" is broadly defined to mean "a domesticated living creature and wild living creature previously captured." Id. s 42.09(c). Thus, the question you pose is whether the practice of "horse tripping," as described, would constitute "torture."
In Attorney General Opinion H-56 (1973), this office considered whether particular conduct violated article 1374, V.T.C.S. That statute, the source law for article 42.09 of the Penal Code, provided that "[w]hoever . . . tortures, torments . . . or needlessly mutilates or kills any animal . . . shall be fined not exceeding two hundred dollars."
The practice at issue in Attorney General Opinion H-56 was "a pigeon shoot, in which the birds are released as targets, after first having their tail feathers plucked out to effect an erratic mode of flight." The opinion declared that "[i]n common parlance 'torture' and 'torment' have virtually the same meaning, i.e., to cause intense suffering." Attorney General Opinion H-56 at 2. Although the opinion correctly stated that "[w]hether or not people participating in a particular pigeon shoot violate the law ultimately will be a question for jury determination," it did hold that the statute was "sufficiently specific and . . . constitutional insofar as it outlaws the torturing, tormenting, and needlessly mutilating of animals." Id. at 3. Furthermore, the opinion concluded that the conduct described by the requestor "would be sufficient . . . to uphold a conviction of violation of Article 1374 . . ." Id.
In our opinion, the activity about which you inquire -- "horse tripping" -- as depicted in the article from Horse Illustrated, is sufficiently cruel and sadistic that a jury could reasonably conclude that it constitutes "torture." Since "torture" is no longer defined in Texas law, we believe that a jury would be obliged to construe the term in accordance with its commonly understood meaning.
The verb "torture" means "[t]o inflict severe pain or suffering upon; to torment; to distress or afflict grievously." OXFORD ENGLISH DICTIONARY (2d ed. 1989), v. 18, at 278. In a case whose facts are similar to those you present here, a Maryland court considered whether the intentional burning of a dog was unlawful under state law. The court declared "that the burning of a dog to the extent that he had to be destroyed constitutes torture, torment and cruelty," and that no "person of ordinary intelligence" could conclude otherwise. In re William G., 447 A.2d 493, 496 (Md. Ct. Spec. App. 1982). Although, as the author of Attorney General Opinion H-56 indicates, whether a defendant's act constitutes "torture" must ultimately be resolved by a jury, we believe that a jury finding that a defendant had intentionally engaged in the conduct you have described "would be held sufficient to uphold a conviction of violation of" section 42.09(a)(1) of the Penal Code.
SUMMARY
A finding that a person has intentionally engaged in the activity known as "horse tripping" is sufficient to support a conviction for "torturing an animal" under section 42.09(a)(1) of the Penal Code.
Wednesday, June 20, 2012
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