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2008-01-17

Case closed - three dogs destroyed

By Judith Pannebaker

“The dogs are just lost in all this,” observed one person who attended a Friday, Jan. 11, proceeding at the Bandera County Courthouse that was supposedly scheduled to determine the fate of a trio of purported goat-killing canines.

The “all this” to which the observer referred was the legal wrangling and verbiage, seeming confusion and magisterial insults that highlighted the two-and-a-half-hour proceeding.
In the end, the dogs’ destiny was sealed and the canines, a blue heeler and two puppies, were euthanized almost immediately after the court was adjourned.

Judicial pique
Senior Judge Charles Sherrill of the 216th District Court replaced Bandera County Judge Richard Evans, who had recused himself on Dec. 27. At hearings on Dec. 20 and again on Dec. 26, Evans had issued orders for the dogs’ destruction.

During last week’s proceeding, attorney Carole Boyd assumed dual roles, representing the Cowboy Capital Pet Assistance League in a civil action that would allow the nonprofit animal rescue agency to be designated an intervener or “party of interest” in the matter. In its capacity as a no-kill animal shelter, CCPAL requested custody of the dogs. They would either adopt the dogs to families outside Bandera County or return the dogs to their owner Mark Turner and supervise their continued containment. In addition, Boyd represented Turner in both the civil and criminal matters.

From the onset, however, Sherrill attacked Boyd’s competency in a display of judicial pique that he maintained throughout the proceeding.

“Texas Rules of Procedure must be strictly followed and you have violated many rules. You can only represent one person at a time. You are representing the defendant (Turner) as well as another party of interest. I am concerned about Mr. Turner. If he is convicted, he can charge ‘incompetent counsel.’ (I believe you’re here as a) safety valve for Mr. Turner. This court doesn’t like to be set up,” Sherrill said.

He also questioned Boyd about the length of time she had been an attorney, when she had been admitted to the State Bar of Texas and even which law school she had attended.

For the record, Boyd graduated with a Doctor of Jurisprudence from New York Law School in 1983. She was licensed to practice law in Texas in 1992, but the majority of her practice - approximately 20 years - had been spent in Milford, New Jersey. In addition, Boyd has received no disciplinary actions nor has she ever been sued by a client for incompetency.

Proceeding continued
After reiterating, “I feel you do not understand the Texas Rules of Procedure,” Sherrill allowed the proceeding to continue, noting that Evans had previously ruled that CCPAL was not an interested party in the matter.

Recapping the Dec. 20 hearing, Boyd told the judge Turner did not have an attorney present and, in fact, had not been advised he had the right to an attorney.

She also described CCPAL as an entity that operates the county animal pound under a contract with Bandera County. After deputies with the Bandera County Sheriff’s Office impounded the three dogs accused of killing goat(s) belonging to TE “Gene” Carnes on Dec. 12, CCPAL assumed responsibility for the animals’ care, which included paying for veterinarian costs not authorized by the county. As operator of the county animal pound, CCPAL had an interest in the final disposal of the animals, Boyd argued.

In addition, she said during the Dec. 20 hearing no proof had been offered indicating a goat(s) had been killed nor was any expert testimony given regarding the dangerous nature of the three dogs. Evans, she said, could have returned the dogs to Turner or ordered them destroyed. According to County Attorney Kerry Schneider, another alternative, turning the dogs over to a third party for out-of-county adoptions, was not an option because the victim, Carnes, wanted the dogs destroyed. “Judge Evans ordered the dogs destroyed,” Boyd said, adding the decision troubled both CCPAL and Turner.

However, the ordinance under which the dogs were ordered destroyed, Section 7 of the Bandera County Animal Control ordinance, does not include the so-called “third option” set forth by Schneider.

Sherrill pointed out that during a Dec. 26 hearing, CCPAL was not recognized as an intervener. “To be a portion of a lawsuit, you must petition the court. The correct procedure would have been to file a motion for a new trial, but the time’s up now.”
‘Best be careful’

“I filed a motion for a new hearing and a stay of execution for the dogs,” Boyd insisted. During a subsequent recess, she produced paperwork that underscored her assertion.

A discussion ensued about the dogs being scheduled for destruction prior to a hearing. According to Schneider, Turner disavowed ownership of the dogs. Impounded stray or abandoned dogs can apparently be euthanized without a hearing. However, the official complaint, signed by Deputy Shane Merritt on Dec. 14, clearly lists Turner as owner of all the dogs.

In addition, Schneider inadvertently informed the court Boyd had filed for a full hearing, adding “whatever that is,” regarding the dogs’ destruction.

“Your honor, Ms. Schneider just admitted I had filed for a full hearing. Since it had not been a trial, I asked for a re-hearing,” Boyd said.

“Ma’am, if you’re trying to split terminology here, you’d best be careful,” Sherrill admonished Boyd.

The fact remains, however, judicial proceedings on Dec. 20, Dec. 26 and Dec. 27 were hearings. Neither Turner nor CCPAL were ever involved in a trial stemming from the Dec. 12 incident.

“Where is the motion for a new trial?” Sherrill continued to ask Boyd.

Boyd’s motion for a new hearing, which she filed on Dec. 27, was finally located. Despite Schneider’s insistence to the contrary, the motion had been signed by Turner as required. Boyd’s pleadings included a temporary restraining order for destruction of the dogs, a full hearing with discovery, a permanent injunction against destruction of the dogs and a motion to intervene, among other pleadings.

“I ask that all pleadings be struck and move that CCPAL be held responsible for all attorney’s fees and for sanctions against Ms. Boyd,” said Schneider.

After lecturing Boyd that she could not “bootstrap what (she was) trying to do,” Sherrill ruled in favor of Schneider. In a final blow, he said, “The court does deem and find you are incompetent counsel in this matter.”

Belying his words however, Sherrill immediately allowed Boyd to represent Turner in the criminal arraignment. In addition, he suggested her name be included on a list of court-appointed attorneys for the 216th District Court.

Show of force
After conferring with Schneider and Boyd, Turner pled “no contest” to two counts of dogs running at large and failure to vaccinate them against rabies. For each count, he was fined $200 plus $156 in court costs. In addition, he must pay Carnes $368 for the dead goat(s). Eight other charges filed against Turner were dismissed.

Despite popular belief, a plea of no contest in a criminal action cannot be used against a defendant in a later civil action.
Nevertheless, Boyd received a verbal agreement from Carnes that he would not file a civil suit against Turner at a later date.

Carnes is currently embroiled in a civil lawsuit against CCPAL and its Director Marlene Heavner because two dogs under the care of the animal rescue organization allegedly killed one of his goat(s) last fall. Without benefit of counsel, Heavner pled no contest to allowing the two dogs to run at large and paid a $400 fine after being assured by Schneider the plea would “make the matter go away.”

Also attending the proceeding were Kendall County Sheriff Weldon Tucker, six deputies, Jail Administrator Della Baker, Evans and 216th Assistant District Attorney Mark Shurley, self-described as doing pro bono work for the district. Sherrill characterized Shurley as attending the proceeding “to make sure this doesn’t get into district court.”

Attempting to explaining the show of force, Tucker said, “Three of the deputies were here to testify - two who responded to the original call and the other to testify on the ordinance.”

Dismissing county law enforcement officers, Sherrill said, “The officers are excused if they like. They can go back to protecting Bandera society.”

Timing questioned
The proceeding adjourned at 11:20 am. The county animal control officer reportedly left the courthouse after 11:30 am. By 12:10 pm, however, the three dogs had been delivered to a veterinary clinic on Highway 16 South and shortly thereafter were euthanized.

Questions have been raised about the timing of the transferal. The officer would have had to travel from the courthouse to the CCPAL facility on Highway 16 North by Mansfield Park, load the three dogs in his vehicle and arrive in Pipe Creek in record time, many noted.

As one person commented, “To do that, the operation would have had to run with the efficiency of a German railroad - or the hearing was just a foregone conclusion.”