To seize or not to seize … 207 horses

Earlier this year, Montgomery County faced a highly unusual case of animal cruelty involving the seizure of more than 200 horses that was hotly contested by the owners. By and large, animal cruelty cases pursuant to the Health and Safety Code tend to be straightforward and often uncontested. But with 200-plus horses at stake, this case was the exception, not the rule.
    Herman and Kathleen Hoffman owned 207 horses and, for over a year, had been keeping them confined on just 40 acres. (The rule of thumb is at least one acre per horse if grazing is the primary food source, though supplementing with regular hay and feed can reduce the acreage per horse considerably.)
     The horses were confined in pastures resembling a desert with little to no grass to graze on and little to no shelter from the elements. Some of the horses stood in stalls surrounded by their own waste, pine shavings, and dirt pushed up in mounds around them, causing a “fish bowl” effect, which puts pressure on the horses’ ankles by standing on uneven surfaces for long periods of time. They were often standing in their own feces. Every one of the horses had overgrown hooves to some degree, and a few horses’ hooves were so severely overgrown that they were literally standing and walking on their ankles. Horses were going lame and starving to death, ribs and hip bones were protruding from their bodies, open sores were visible, and rain rot1 was prevalent amongst the herd.

The Hoffmans
The Hoffmans owned a horse ranch called Premium Star, which used the slogan, “Where quality speaks for itself.” The business involved breeding and selling American quarterhorses, “descendants of the legendary stallions Poco Tivio and King Fritz.”2 By all accounts, if you preferred a quarterhorse from a champion bloodline, you looked no further than Premium Star.
    Sometime in 2010, the Hoffmans formed another business called Calico Dairy, a “raw milk to retail” business. In time, the Hoffmans’ priority turned to the milk cows, and every last dollar went toward their feed. This dairy, we believe, led to the decline of the horse business.

The investigation
In the fall of 2014, former employees of the Hoffman ranch began to speak out. Claims of neglect, malnourishment, and dying horses surfaced. Local law enforcement was notified and began an investigation. Upon initial encounters at the ranch, law enforcement noticed some underweight horses, but most of the herd appeared healthy. After further encounters, law enforcement noticed a deterioration of body condition amongst the herd. As a result, the Hoffmans received a written notice to comply with the Texas Penal Code, which states, “A person commits an offense if the person intentionally or knowingly fails unreasonably to provide necessary food, water, or care for a livestock animal in the person’s custody.”3 The notice directed the Hoffmans to seek medical assistance from a veterinarian and to improve the horses’ condition. The hope was that the Hoffmans would get their act together, nurse the emaciated horses back to health, and get documentation from a veterinarian about their improved condition. Law enforcement and former employees at the ranch even presented a plan to the horses’ owners to sell some of the animals so that they could provide for the rest of the herd. But all attempts at helping the Hoffmans fell on deaf ears.
    In June 2015, law enforcement received another call concerning the welfare of the Hoffman horses. Over the months, the horses’ conditions had declined significantly, with several needing immediate attention. The next day, our office received a call requesting our attendance at a meeting with the district attorney (among others) regarding allegations of neglect and cruel treatment of these 200 horses.
    The issues we faced were numerous. If we went forward with a seizure, would the district attorney seize the horses pursuant to criminal charges, or would the county attorney initiate a civil seizure? If we implemented a civil seizure, would we seize the entire herd or just a handful of the horses in the worse condition? Where would the county put 200 horses if we seized them all? Financially, how would the county care for 200 horses? And how would we prove that every horse was cruelly treated?

The seizure
After a lengthy discussion and the combined efforts of Houston SPCA (Society for the Prevention of Cruelty to Animals), local law enforcement, the district attorney’s office, and the county attorney’s office, a plan was implemented. The DA obtained a search warrant to enter the Hoffmans’ property and look for evidence of cruelty. A representative of the Houston SPCA and a veterinarian, as agents of the state, accompanied law enforcement on the premises and inspected the condition of all the horses. We too went to the Hoffman ranch to see the condition of the horses first-hand. We spent many hours at the ranch over a two-day period speaking with investigators, advising on legal issues, and making mental notes in preparation for the seizure hearing. As prosecuting attorneys, or any advocates for that matter, personal observations of the scene helps us understand the issues and better present our cases.  
    After consulting with the veterinarian and Houston SPCA, it was determined every horse was being cruelly treated, as defined by §821.021 of the Texas Health and Safety Code, which states the horses have been cruelly treated if they were “unreasonably deprived of necessary food, care, or shelter.” Consequently, the decision was made to conduct a civil seizure of all the horses, and Houston SPCA would house and care for them pending final disposition of whether the Hoffmans would be divested of ownership. It was clear that only an outside agency like the Houston SPCA had the resources and expertise to house and care for 200 horses.
    Chapter 821 of the Health and Safety Code provides that a peace officer or an officer charged with responsibility for animal control in a county may apply for a warrant to seize a cruelly treated animal in justice court or municipal court.4 Upon a showing of probable cause, the court shall issue a warrant and set the matter for hearing within 10 days.5 The sole issue is whether the horses have been cruelly treated, and if so, the owners shall be divested of ownership.6
    We anticipated the need to keep the horses on-site while we attended to their needs so we asked for (and received) a court order to seize the animals in place. The SPCA vets and workers were at the Hoffman farm for several weeks examining, treating, and ultimately moving each horse in turn. It took an entire two weeks to do this for all 207 horses. From what we were told, SPCA had to seek out volunteers from across the state to do the hard work of managing the horses for the inspections and move them, as well as provide the dozens of trailers and vehicles to physically transport them. It was truly a statewide effort by the SPCA to save these horses.
    In addition, all those involved anticipated the costs of caring for theses horses would be expensive. In an effort to help Houston SPCA with costs, the district attorney’s office contributed $15,000 toward their care, and the Montgomery County Commissioners Court match-ed that with a $15,000 contribution of its own.
    One issue that complicated matters for us was the concurrent criminal investigation. Typically, when there are also criminal charges for abuse, we would seize the animals after the person was convicted of the abuse. However, in this case, we felt that the horses’ conditions were so precarious that we needed to act immediately to put them in the SPCA’s care to prevent more death and suffering. A few of the horses had to be euthanized; however, most of the horses were treatable and have steadily been nursed back to health. This reality prompted the unusual situation of the animal seizure hearing taking place while the DA’s office was still developing criminal charges. Representatives of the DA’s office watched our seizure hearings with interest, eager to hear what defenses the Hoffmans would raise for their actions.

The JP trial
At the initial hearing before a justice court, Herman and Kathleen Hoffman represented themselves. They raised several legal challenges to the seizure, primarily concerning the search and seizure warrants. However, a few of their defenses were novel and might have been more effective had the pictures of the horses not undermined their arguments. The Hoffmans tried to argue that they were “mavericks” and “pioneers” in a “new” (old) way of raising and breeding horses that emulated the wild horses that live in the Rockies and western United States. They claimed to be raising wild herds in a natural, “organic” state and argued that it was not fair to judge their horses by standard “beauty” measures set by Hollywood movies, such as Black Beauty and The Black Stallion. They claimed that they were being punished by a society that was judging books by their covers instead of looking past some unkempt manes and unmanicured hooves to see wild, untamed horses. This argument may actually have resonated with some of today’s emphasis on organic, free-range, all-natural production on farms and ranches, but the pictures of the pathetic, starved horses in cramped pens with no grass and little to no water undermined the stirring image of wild and healthy horses the Hoffmans intended to evoke. Also, because the Hoffmans argued that their horses were a “wild herd,” one would expect a large amount of acreage per horse. The fact that the Hoffmans had each horse on less than one-fifth the recommended acreage severely undermined their argument.
    Additional defenses raised by the pro se Hoffmans ranged from highly suspect to downright bizarre. Because the respondents were pro se, we found it necessary to handle such arguments with care, because the court was likely to give non-lawyers a great deal of lenience. (Defendants going pro se is often the case in civil seizures because of the quick statutory time frame to conduct the seizure hearing. However, if they appeal the initial decision, most owners at that point retain an attorney.) This required us to prepare to address each argument, no matter how flawed or meritless each seemed to our legal minds. For example, several of the Hoffmans’ arguments relied on statutes and caselaw discussing civil forfeitures related to criminal cases. We found that it was not enough to simply point out that the respondents were citing the wrong law; the court often wanted at least some discussion about why the same principles did not apply to animal seizures. We found it helpful to continually remind the court that this proceeding was entirely civil in nature, with the burden of proof being preponderance of the evidence. The primary distinction is the purpose of the seizure: We were not seizing the animals to punish an offender for criminal acts or to preserve evidence for a criminal prosecution; rather, the statute we operated under authorized us to seize the animals for their own welfare and to protect them from cruel treatment.
    The final big issue the Hoffmans raised was whether the language of the statute allowed for the seizure of a “herd” of animals and whether the seizure warrant was sufficient when it described “approximately 200 horses” at the Hoffmans’ farm. The Hoffmans argued that the description was not specific enough and that it should have described the horses by breed, sex, color, etc. We found authority in prior caselaw that the description was sufficient, the standard being that the warrant must be sufficient to allow an officer to seize the correct property and not present a danger of being overbroad.7 We believe the court found it compelling that the warrant and the officer’s testimony established that it was the county’s intent to seize all horses found at the farm; therefore, there was no danger of being overbroad.
    After an eight-hour hearing, the court found that the Hoffmans cruelly treated all 207 horses, divested them of ownership, and ordered costs incurred by Houston SPCA taxed against the Hoffmans in the amount of $122,254.87.

The appeal
To perfect appeal, the Hoffmans had 10 days to file a notice of appeal and post a bond.8 Then the statute provides that the county court shall consider the matter de novo within 10 days of receiving the record from the JP court.9 The case was moving fast.
    For the second hearing, the Hoffmans retained an attorney. Interestingly, the attorney presented only a few narrow procedural arguments focusing on the validity of the seizure warrant and did not raise the “wild horses” defense that was so strangely compelling in the first hearing. Perhaps the Hoffmans’ arguments would have been different if the second hearing was a jury trial instead of one before the district court judge.10
    One of the difficult aspects of this case was the statute’s swift deadlines. The intent is so that animals are not left in limbo, the owners have the opportunity to get their animals back quickly, and for adequate recovery of impound and care costs incurred during litigation. An issue we were confronted with was whether the county court would lose jurisdiction 10 days after it received the record from the JP court. Is the statute jurisdictional when it says the court shall consider the matter de novo within 10 days? What if the attorney requests discovery or a continuance past the 10 days?
    We found two court of appeals cases discussing the issue, and of course, they were contradictory. The Strachan case determined that the county court lost jurisdiction 10 days after it received the clerk’s record.11 However, the court in Brehmer held that the hearing deadlines in the animal cruelty statute were not jurisdictional.12 Out of an abundance of caution and to bring quick resolution to the case, we pushed for a trial within 10 days. The court granted our request, and the jurisdictional issue was avoided.
    At the time this article was written, criminal charges were still pending against the Hoffmans. They each face 21 counts of cruelty to animals, and Hermann Hoffman has been charged with a felony tampering case.
    And other than the handful of deaths, most of which occurred shortly after the initial seizure, we are happy to report that the rest of the horses have recovered and some have already been adopted by new forever homes. It is our understanding that it is the SPCA’s goal to adopt out all of the horses that they deem suitable for adoption (that will be the majority of them). The remainder, which may be too old, ill, or wild to be adopted, will remain at SPCA facilities under their care.

In conclusion
After a criminal search warrant; a civil seizure warrant; the logistics of housing, caring for, and transporting 207 horses; and two bench trials—all occurring within 37 days—the Hoffmans were divested of ownership of all 207 horses, Houston SPCA was awarded ownership, and judgment of costs was entered against the owners in the amount of $485,331,68. And now, the Hoffmans have filed a Petition for Writ of Certiorari to the United States Supreme Court. Yes, the United States Supreme Court! So stay tuned: If the care of 200 horses in Montgomery County goes to the highest court in the land, we will tell you all about it.

Endnotes

1 Rain rot, also known as rainscald, is a common skin disease in horses caused by bacteria. Insect bites often spread the disease, which is worsened by moist, warm conditions. Rain rot is easily treated and prevented with good grooming.
2 According to the Premium Star website.
3 Tex Penal Code §42.09(a)(2).
4 Tex. Health & Safety Code §821.022.
5 Id.
6 Tex. Health & Safety Code §821.023.
7 See, generally, Pine v. State, 921 S.W.2d 866 (Houston-14th Dist. 1996) (description of “approximately 15 horses and two head of cattle” sufficient for warrant); Paselk v. State, 2013 WL 6187005 (E. Dist. Tex. 2013) (description of “55 count of Arabian Breed Studs and Mares” was sufficient for warrant).
8 Tex. Health & Safety Code §821.025(b).
9 Tex. Health & Safety Code §821.025(d).
10 Sitting as the County Court at Law.
11 In re Strachan, 2012 WL 1833895 (Tex. App.—Dallas 2012)(mem. op.)
12 In re Brehmer, 428 S.W.3d 920 (Tex. App.—Fort Worth 2014).