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Click here for the full text of this decision FACTS:The incident giving rise to Mircea Volosen’s prosecution occurred in his backyard in the city of Colleyville. Kevin Ball and his family owned a miniature dachshund dog. Volosen, a veterinarian, lived directly behind Ball and kept chickens in a pen in his back yard. On July 4, 2003, the dog was in Volosen’s back yard, among the chickens. Seeing the dog in his neighbor’s back yard, Ball called to it and attracted the dog’s attention. When Volosen entered his yard holding a maul, Ball told him, “Hey, sorry, she got out again.” Volosen looked at Ball and struck the dog with the maul, killing it. The state prosecuted Volosen for cruelty to animals on the ground that he killed the dog without legal authority. At a bench trial, Volosen contended that Texas Health & Safety Code �822.033 provided him with legal authority to kill the dog, because the dog was attacking his chickens. The state argued that �822.033 applied only to civil suits but also contended that even if the statute applied to criminal prosecutions, the dog did not engage in an attack. The trial judge found Volosen guilty and placed him on probation. On appeal, Volosen claimed that legally insufficient evidence supported his conviction, because legal authority to kill the dog under �822.033 had been established as a matter of law. Construing the word “attack,” the 2nd Court of Appeals agreed and reversed his conviction. The Court of Criminal Appeals granted discretionary review on the state’s first ground, which alleged that �822.033 falls within a statutory scheme that must be ratified by the voters of a particular county before it becomes effective for that county. The state contended that Volosen failed to demonstrate that such a ratification occurred. HOLDING:Reversed and remanded. The statutory provision upon which Volosen relied to establish a defense applies only to certain counties under certain conditions, the court stated. Specifically, �822.033 stated that it applied “only to a county that adopts [subchapter C] by a majority vote of the qualified voters of the county voting at an election held under this subchapter” and not “to any county or municipality that enacts or has enacted registration or restraint laws pursuant to [the Rabies Control Act of 1981].” Volosen contended that �822.033 applied statewide, despite its presence in a subchapter of limited applicability. In support of this proposition, he cited the fact that the provision was renumbered in 2003 as �822.013, taking the provision out of subchapter C and making it a law of general applicability. But the CCA accorded little weight to that amendment, which did not “negate the import of the unambiguous language of the applicability statute.” The next question, the CCA stated, was whether Chapter 822C applied to Tarrant County or to the city of Colleyville. But the trial record contained no information in this regard. A matter of law, the CCA stated, would seem to be an especially appropriate subject of judicial notice by an appellate court, but the CCA stated that it could not do so because of a lack of information. Texas Rule of Evidence 204 requires a court to take judicial notice of a county or municipal ordinance upon request, so long as the requesting party furnishes “sufficient information to enable [the court] properly to comply with the request,” but the rule also permits a court to take judicial notice “upon its own motion.” The CCA stated that it lacked information that definitively showed whether Chapter 822C was ever adopted in a subsequent election. Thus, the CCA could not determine the content of local law with sufficient certainty to take judicial notice of whether or not former �822.033 applied to the location in which the incident occurred. Volosen bore the burden of demonstrating the content of local law, the CCA stated. But Volosen provided no information at trial or on direct appeal to show that the statute was applicable to Tarrant County in general or to Colleyville in particular. Thus, Volosen failed to meet his burden of production to show the applicability of his claimed defense under �822.033. OPINION:Keller, P.J., delivered the opinion of the court in which Meyers, Womack, Keasler, Hervey, Holcomb and Cochran, JJ., joined. CONCURRENCE:Johnson, J., concurred. DISSENT:Price, J., dissented.

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