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3-1721. Petition of seizure; notice of seizure; lien for expenses; forced sale; disposition of proceeds; nonliability of state; neglect or cruel treatment of equine; civil penalty; legal representation

A. Any person or peace officer who believes that an equine is in poor physical condition because of neglect or cruel treatment may petition upon affidavit a justice of the peace of the precinct or a city magistrate of the city in which the equine is found for an order authorizing the department to take possession of and provide care for the equine for a fifteen-day period. The order shall not be issued unless the affidavit provides that the livestock custody fund established by section 3-1377 has a balance that permits the department to provide such care or that the department can demonstrate that the expenses have been contracted for pursuant to subsection E of this section. The clerk of the court or justice of the peace, as the case may be, after filing and docketing the petition, shall enter a brief statement of the petition on the docket and set a time for a hearing that is not less than five and not more than fifteen days after the petition is filed. The order shall state the time and place of the hearing.

B. On receiving the order the department shall take possession of the equine. The department shall serve the order on the owner of the equine, if known, at least twenty-four hours before the hearing, either by personal service on the owner or by leaving a copy of the order with a person of suitable discretion at the owner's residence or place of business. If the owner is not known, the department shall give notice by posting a copy of the order on the day of the seizure in a conspicuous place at the location where the equine was seized and in at least two public places in the county where the equine was seized. The order shall be served by a livestock officer, constable or sheriff of the county.

C. If, at the hearing, it is determined that the equine at the time of taking possession was not in poor physical condition because of neglect or cruel treatment, the owner may immediately reclaim the equine and shall not be liable for payment of any expense incurred in the handling, feeding and care of the equine. Unless malice is proved, no action taken by an employee of the department or by a peace officer pursuant to this article shall be subject to civil or criminal liability.

D. Upon failure of the owner to be awarded immediate, expense-free possession of the equine pursuant to subsection C of this section, the department shall either sell the equine at public auction or, if the equine's condition makes its sale impractical, dispose of the equine in the most humane manner possible. The department shall deposit, pursuant to sections 35-146 and 35-147, the proceeds of the sale in the livestock custody fund established by section 3-1377 for distribution in the following priority:

1. The department shall be reimbursed for auction, handling, feeding and caring expenses.

2. Any monies derived from the sale in excess of the expenses to be paid pursuant to paragraph 1 shall be paid to the owner of the equine. After thirty days if the owner has not claimed the money, this money shall revert to the livestock custody fund established by section 3-1377.

E. The director may contract with any person or group to handle, feed and care for any equine taken into custody pursuant to this section. The state shall not be liable for injury or death of any person or equine or damage to property caused by the performance of the contract.

F. Notwithstanding any provision of this article to the contrary, the county attorney of the county in which the equine was seized may, at any time prior to the expiration of fifteen days after the seizure of the equine, take charge of and keep the equine at the expense of the county when the county attorney considers it to be of evidentiary value in any criminal prosecution relating to the condition of the equine.

G. In addition to violating section 13-2910, a person who subjects an equine to neglect or cruel treatment is subject to a civil penalty of not more than seven hundred fifty dollars for each violation. All civil penalties assessed pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

H. The county attorney of the county, or the city attorney of the city, in which the livestock is seized may represent the livestock officer and the interests of this state in proceedings under this section.

I. Upon receipt the department shall deposit, pursuant to sections 35-146 and 35-147, all monies, except civil penalties, collected pursuant to this section or received as a money donation from any public or private group, society, association or individual in the livestock custody fund established by section 3-1377. The monies in the fund shall be used to reimburse the department for expenses incurred in the handling, feeding, care and auctioning of equines seized pursuant to this section.