in Re Debra Dickey ( 2013 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
August 13, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00679-CV
IN RE DEBRA DICKEY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1034927
MEMORANDUM OPINION
Relator Debra Dickey filed a petition for writ of mandamus in this court. See
Tex. Gov’t Code §22.221; see also Tex. R. App. P. 52. In the petition, relator asks
this court to compel the Honorable Roberta Lloyd, presiding judge of County Civil
Court at Law No. 4, to grant her motion to dismiss the underlying proceeding for
want of jurisdiction. Relator also filed an emergency motion for a stay of trial,
which we denied on July 30, 2013. See Tex. R. App. P. 52.10.
Relator asserts that she boarded her two female Doberman Pinschers with
Kenneth Battle for training. The Precinct 1 Justice Court issued a warrant ordering
the seizure of all of the dogs at Battle’s residence based on allegations of animal
cruelty. See Tex. Health & Safety Code § 821.022. After a hearing, the justice
court found both Battle and relator were guilty of animal cruelty and awarded
custody of all of the dogs at Battle’s residence to the Houston Society for the
Prevention of Cruelty to Animals. Relator filed a de novo appeal to Harris County
Civil Court at Law No. 4, seeking the return of the two female Doberman
Pinschers and their progeny.1 See Tex. Health & Safety Code § 821.025.
In the county court, relator filed a motion to dismiss for want of jurisdiction,
asserting that the lower courts did not acquire subject matter jurisdiction because
she was not provided notice that animal cruelty allegations were also made against
her. On July 29, 2013, the trial court denied the motion. Relator then filed this
proceeding. An expedited trial was scheduled to commence in the county court on
July 31 or August 1, 2013. See Tex. Health & Safety Code § 821.025(d).
Mandamus relief is available to correct a clear abuse of discretion for which
the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004). An abuse of discretion occurs if the trial court
clearly failed to analyze or apply the law correctly. See Walker v Packer, 827
S.W.2d 833, 840 (Tex. 1992). An appellate court may not resolve disputed matters
of fact in an original mandamus proceeding. In re Angelini, 186 S.W.3d 558, 560
(Tex. 2006).
Relator complains that she did not receive any notice that animal cruelty
allegations were made against her, and that this defective notice deprived the
1
Relator asserts that she was informed that both of the females gave birth to puppies after they
were taken into custody of the HSPCA.
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justice court of jurisdiction. She acknowledges, however, that she had notice of,
appeared at, and participated in the hearing in justice court. It appears that relator
waived her notice complaint by failing to timely object to insufficient notice,
failing to move for a continuance, and participating in the hearing. See Hoog v.
State, 87 S.W.3d 740, 745 (Tex. App.—San Antonio 2002, pet. denied). We do not
have a record from the hearing in justice court. See Tex. R. App. P. 52.7(a)(2).
Harris County, the real party-in-interest, responded to relator’s motion to
dismiss in the court below, and argued that statutory notice was provided, and
notice of the cruelty allegations was not required. See Tex. Health & Safety Code §
821.022(c) (“The officer executing the warrant shall cause the animal to be
impounded and shall give written notice to the owner of the animal of the time and
place of the hearing.”). Section 821.021(3) of the statute defines an owner to
include “a person who owns or has custody or control of an animal.” Tex. Health
& Safety Code § 821.021(3).2 In addition, the County argued that failure to comply
with a statutory requirement does not deprive the court of jurisdiction. See City of
DeSoto v. White, 288 S.W.3d 389, 395 (Tex. 1999) (recognizing that “just because
a statutory requirement is mandatory does not mean that compliance with it is
jurisdictional.”).
The jurisdiction of a court in an animal seizure action, an in rem proceeding,
is dependent on the court’s control over the res. Pine v. State, 921 S.W.2d 866, 871
(Tex. App.—Houston [14th Dist.] 1996, writ dism’d); see also Hoog, 87 S.W.3d at
742-43. Chapter 821 of the Texas Health and Safety Code provides jurisdiction to
justice courts over forfeiture proceedings for animals found in situations
2
We note that in the definitions provided for the criminal offense of animal cruelty, the Texas
Penal Code states that custody “includes responsibility for the health, safety, and welfare of an
animal subject to the person’s care and control, regardless of ownership of the animal.” Tex.
Penal Code § 42.092(4).
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constituting cruelty. Pitts v. State, 918 S.W.2d 4, 5 (Tex. App.—Houston [14th
Dist.] 1995, no writ). The seizure warrant issued by the justice court permitted
seizure of all animals located at the named premises. Therefore, the justice court
had jurisdiction over the subject dogs. Even an unlawful seizure does not deprive
the court of jurisdiction. Pine, 921 S.W.2d at 871.
Relator timely filed a notice of appeal to perfect an appeal to the county
court. See Tex. Health & Safety Code § 821.025(b). As long as relator timely filed
a cash or surety bond, as required by statute as a condition to perfect an appeal, the
county court had jurisdiction. Id. Our record is silent as to whether relator filed the
required bond.
Relator has not established that the respondent abused her discretion in
denying the motion to dismiss. Accordingly, we deny relator’s petition.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Frost and Donovan.
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