Justice

I’ve been studying the subject of impeachment in the United States for several years now. Any of you who take your job as a citizen of the United States seriously have also been doing this. If not, shame on you.

In the course of my education on the subject of impeachment I’ve discovered a glaring error in the arraignment of our government and it’s various competing functions. Congress has no ability to enforce its will on its own. It is beholden to the executive branch to see that its lawful orders are followed.

This error only shows up when the executive branch and the legislature are held by different factions, as has happened since the House of Representatives flipped into Democratic hands in 2018. The executive branch, for the first time in history, has refused to honor lawfully executed subpoenas and requests. Never in history has the executive refused outright to comply with requests made of it by Congress.

In the past, the house has had to create its own arm of enforcement, the few times that it was required to contest with an unlawful, intractable executive. The first presidential impeachment, that of Andrew Johnson, saw congress having to create its own jails and create its own police force to do its bidding so as to be even capable of doing the oversight work that is delegated to it in the Constitution.

The justice department should not belong to the president. This is one of the errors in government arrangement that will have to be addressed when the presidency changes. What do I mean? Congress has no enforcement arm without being able to secure compliance of the justice department. This needs to be spelled out in plain English. The Justice department SHALL enforce congressional subpoenas and all requests for information issued by congress. The Justice department will arrest and detain ANY individual that attempts to evade a lawfully executed Congressional subpoena. The Attorney General shall answer to congress and can be fired by the Congress as well as by the president.

Justice should be effectively severed from the Executive branch. Permanently.

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Milam County Dog Attack: Dog owner still awaiting trial

Going through the archive, I realised that the story about the dog attack had been moved on the Statesman site. I added it to my blog entry on the subject, as well as the story concerning charges being brought against the dog owner.

He’s still sitting around awaiting a trial, which has been rescheduled for January 16, 2007.

I’m beginning to wonder if he’ll ever face trial, myself. The government in Milam county clearly doesn’t think that it’s important enough, or they have sympathy with the dog owner rather than the victim who was innocently minding her own business when she was attacked.


Editor’s note. Reading back through the early blog articles I was stunned to realize I never followed up on this story. Sadly, the jury was unwilling to convict the dog owner. I found a legal opinion on the subject here a portion of which follows. There is more information at the above link if you are interested.

Health & Safety Code §822.041 provides that a court may declare a dog “dangerous” basically if it causes injury in an unprovoked attack. It is a Class C misdemeanor if the owner violates the provisions of the dangerous dog law or the dog causes serious injury in an unprovoked attack. It is a Class A misdemeanor if the dangerous dog causes a death of a person in an unprovoked attack. A $10,000 penalty may also be imposed on the owner whose dangerous dog causes serious injury or kills someone. Texas Heath & Safety Code §§822.044, 822.045. (See generally Dangerous and Vicious Dogs for discussion of the legal meaning of “dangerous” and the issues pertaining to legal “dangerousness.”)

If a dog has not been previously declared “dangerous,” however, there is a “loophole” in the law, in that there is no law that addresses the situation. Given the savageness of this killing, prosecutors attempted to apply the general law. To make the punishment fit the crime, the grand jury indicted Jose Hernandez for criminally negligent homicide. His trial took place in March 2007.

The conviction of this dog owner depended upon overcoming the bane of dog bite victims, namely the one-bite rule. Under this ancient British legal doctrine, the owner of any domestic animal is not held responsible for the first bite, the first mauling, or the first killing by each and every one of his animals. (See The One Bite Rule.) Texas is in a minority of states that continues to salute the flag of Great Britain when it comes to dog bite laws. (For lists of states that follow or have abrogated the one bite rule, see Legal Rights of Dog Bite Victims in the USA.)

Hernandez testified that he had no idea his animals were capable of such brutality. He admitted none of his animals had ever been seen by a veterinarian and hadn’t been vaccinated. Several other witnesses for the defense testified that Hernandez’ dogs were not aggressive and were not trained to be aggressive.

The jury found Hernandez not guilty.

Kenneth M. Phillips, The Lillian Stiles case (Texas v. Hernandez)

I had never heard of the one bite rule before in my life. I’m actually horrified that this is defacto law in Texas. The legislature did update the laws after the verdict in this case, but the laws remain woefully lax when it comes to holding dog owners responsible for the behavior of their animals.

We had a trained pit fighting dog break into our yard and attack one of our dogs a few years back. Our dog (Corona) never recovered from that attack and died shortly afterwards. I wondered why the cops told us privately afterwards that if we wanted the attacking dog put down, we should have done it ourselves while we had the chance. These laws and the rulings in the above case prove the point. If you expect justice for injury from another person’s pet, be prepared to exact it yourself while the offending animal is on your property. There is nothing that the other person can do about it in Texas. It’s an animal trespassing on your property, so you can kill it. Weird, isn’t it?

Charges in fatal dog attack not likely, sheriff says

The story as it appeared in the Austin American Statesman (which has since removed it from the archive -ed.):

AUSTIN, Texas — The owner of six dogs that fatally mauled an elderly woman as she worked in her yard will likely not be charged with a serious crime, Milam County Sheriff Charlie West said Monday.

West said that he has consulted with District Attorney Kerry Spears and that they have been unable to conclude that owner Jose Hernandez committed a felony.

“There are no laws that apply,” West said. “We are still looking, but it is going to be hard to make anybody responsible for it.”

Five of the dogs were euthanized Monday; the victim’s husband shot the other dog.

West has said that Hernandez apparently kept the six pit bull-Rottweiler mixed-breed dogs in a pen behind a 3-foot chain-link fence. It was not clear how they got out of the pen.

Hernandez could not be reached Monday, two days after the dogs attacked and killed Lillian Stiles, 76, as she was tending her yard and flowers atop a riding lawn mower. Her body was taken to Dallas for an autopsy, which officials said had not been completed Monday.

Stiles’ husband Jack was inside their house north of Thorndale, Texas, about 50 miles northeast of Austin, watching a football game when the attack occurred. Two passersby, Weldon and Maurita Smith, saw Lillian Stiles’ body in her yard and tried to help.

Weldon Smith also was attacked and injured before Jack Stiles shot one of the dogs.

West said the euthanized dogs were sent to the Texas Department of State Health Services for rabies and other testing.

West said Hernandez is cooperating with the investigation and has said that his knee-high grandchildren have played with the dogs.

He said investigators have no indication that the dogs were being used for fighting and that a veterinarian who examined them said they had no signs of “war-like injuries,” such as cuts or broken bones.

“To him (Hernandez), the dogs weren’t vicious,” West said. “They were just pets.”

In 2003, the most recent year with available statistics, 288 people were hospitalized for dog bites and one person died, according to the Texas Department of State Health Services.

Hernandez’s house, down a dirt driveway from the road that runs in front of the Stiles’ property, appeared empty Monday afternoon. A nearly full 50-pound bag of dog kibble sat on the screened porch and the gate one the fenced yard had a metal “T” painted with the visage of a bulldog — the Thorndale school district mascot.

The Stiles’ next-door neighbors reported seeing a big black dog near Lillian Stiles around 3:40 p.m. Saturday as they returned from Cameron.

“Oh, they’ve got a new dog,” Lauren Shumaker said she told her husband, Don. The couple said they had never seen a pack of dogs along the road.

Jimmy Hinistroza, pastor at San Gabriel Evangelistic Christian Church, lives immediately north of Hernandez’s house and said he saw two of the six dogs at the church’s property line early Saturday afternoon. He shooed a black Rottweiler away, he said, but the other one — a pit bull — “kept staring at me.”

“I’ve seen those two dogs many a time,” Hinistroza said. “I’d never seen the pack. I never knew this man had other pit bulls. If I’d have known, I would have talked to him because I know what pit bulls can do.”

Children routinely hike several acres of turf behind the church on Sunday afternoons, he said, but he temporarily barred anyone from going outside Sunday because the shot dog had yet to be found; the dog’s body turned up in the Stiles’ back yard.

“It could have been worse if all those children were out there,” Hinistroza said.

Hinistroza dedicated his Sunday sermon to Lillian Stiles, whom he described as a fixture on her rider mower, tending a lawn and garden that “looks like a little paradise,” Hinistroza said. “We all loved her.”

The following is a letter I wrote expressing my outrage at this travesty.


To: Kerry Spears [District attorney for Milam County]

This is an outrage. According to the reports that I have heard, the dogs were kept behind a fence that was just over 3 feet tall, they attacked in a coordinated pack (as if they were used to hunting together) and they killed a woman in her own front yard. They also attacked a would-be rescuer.

…and there isn’t anything to charge the dog owner with? Manslaughter? Criminal negligance? Anything? The fence was of insuffcient height to keep the animals contained, they had been trained to attack in a pack (or had been foraging enough to have learned the behavior) and they have a registered owner. I don’t know what else is needed to charge the man with SOMETHING.

I for one am sick and tired of this mantra that we “don’t have a law to cover this” (as if dog attacks are something new to the 21st century) You are tasked with upholding the law and seeing that justice is done in your county. This woman’s death will be on your heads as much as the dog owners if nothing is done about it now.


If you also feel the urge to send a comment to the District attorney in Milam county, you’ll have to send it by fax or snail mail. Only the Sheriff’s office has a working email address. Even the commissioners court is without internet service, apparently. Talk about not being in the 21st century.

“She smiled all the time,” he said. “She was so beautiful.”

theeagle.com