Analysis of the Office of Attorney General Advisory Opinion relating to Trap-Neuter- Return (TNR) programs fully operated by a localityJul 30 2013
Analysis of the Office of Attorney General Advisory Opinion relating to Trap-Neuter-
Return (TNR) programs fully operated by a locality
The recent Virginia Attorney General Advisory Opinion (Va. Att’y Gen. Op. No. 12-100 (June
12, 2013), “Advisory Opinion”) endorses status-quo Trap-Neuter-Return programs in Virginia
by giving strong support to locality-sponsored sterilization programs for feral cats. The
Advisory Opinion confirms the general understanding that, under current Virginia law, feral cats
captured by animal control officers and confined in a pound cannot be returned by the locality to
their colonies. The Advisory Opinion also makes clear that a person humanely trapping a feral
cat for sterilization is the finder—not the owner—of that cat.
The Opinion’s conclusion that localities may not return a captured and sterilized feral cat
does not impact currently operating locality Trap-Neuter-Return programs
The type of TNR program analyzed by the Advisory Opinion is not one that most, if any,
localities in Virginia operate. The Advisory Opinion addressed the permissibility of locality-
sponsored TNR, where the locality itself, through its animal control officers or other government
personnel, engages in every aspect of TNR: the capture of outdoor feral cats, the neutering and
vaccination, and the return to their outdoor home.
But locality TNR programs in existence today do not operate in the fashion described by the
Advisory Opinion. Virginia localities that have TNR programs operate where the locality’s
contribution, by and large, is merely to provide or coordinate sterilization services. Private
citizens, not animal control officers, conduct the actual trapping of cats for TNR.
This distinction is important because the Advisory Opinion’s conclusion that a locality TNR
program may not return feral cats after sterilization stems from requirements placed on animal
control officers who capture feral cats (or indeed, any companion animal) outdoors. The
Advisory Opinion states that any authority a law enforcement officer would have to trap a feral
cat stems from statutes that authorize an officer to “capture and confine” or “seize and impound”
an animal. See Va. Code Ann. § 3.2-6562 and § 3.2-6569. Those terms must be read together as
a phrase: “capture and confine;” “seize and impound.” As such, if an animal control officer is to
capture a feral cat, the cat must be confined in a pound. Confinement in a pound triggers the
restricted disposition options of § 3.2-6546, which include return-to-owner, adoption, euthanasia
and transfer to another facility, but does not include return to a feral cat colony.
It is important to note that private citizens do not face the same prohibition on return-to-colony
for cats they humanely trap. Unlike an animal control officer, a private citizen has no duty to
confine or impound a cat after humanely trapping the cat. Thus a cat trapped by a private citizen
need not be placed in a pound and be subject to the restricted disposition framework of § 3.2-
6546. The Advisory Opinion’s conclusion that feral cats may not be released “by the locality
back to the location from whence they came” (Advisory Opinion, 5 (emphasis added)) does not
hold that similar restrictions follow for private citizens when the cat was not captured by an
animal control officer. Private citizens who find a cat are under no requirement—unlike a
locality—to confine the animal in a pound or animal shelter.
The Advisory Opinion additionally notes that, for cats trapped by an animal control officer, there
is another method of disposition: under § 3.2-6562, an animal control officer may deliver the cat
to any person who will pay the license fee on that animal. (Many Virginia localities have no
license fee for cats). This method of disposition is in addition to the disposition options
identified in § 3.2-6546. An officer delivering a cat to a person who would pay the license fee
would otherwise need to comply with § 3.2-6546.
The Advisory Opinion makes clear that localities have substantial leeway in how they
conduct sterilization programs for cats and dogs
Virginia law grants localities substantial authority to conduct sterilization programs for cats and
dogs. Indeed, the Advisory Opinion states that localities may “establish a program for and
provide funding to have feral cats sterilized by a licensed veterinarian.” Advisory Opinion, 3.
As mentioned above, Virginia localities that currently have programs for feral cats, even if they
are colloquially called “TNR programs,” are far less comprehensive than full Trap-Neuter-
Return programs explained in the Advisory Opinion. In existing programs, localities provide
sterilization services for cats brought to them by members of the public. They do not neuter and
return cats captured by animal control officers. From the locality’s point of view, the program is
less “Trap-Neuter-Return” and more “Accept-Neuter-Give Back.” Essentially, the locality runs
(or coordinates) a sterilization clinic for feral cats. This sort of program is well within the
authority granted to localities by the Virginia code.
A locality’s authority to sterilize feral cats is wholly separate from its authority to capture feral
cats. The authority to sterilize derives from different sections of code than the authority to
capture. A locality’s authority to sterilize derives from §§ 3.2-6529, 3.2-6534 and 3.2-6543; the
authority to capture derives from §§ 3.2-6562 and 3.2-6569.
Moreover, unlike the authority to capture, the Virginia code does not specifically attach the
authority to sterilize to any other duty in the code. The authority to capture is followed by a duty
to confine. (For example, § 3.2-6562 uses the phrase “capture and confine.”). But the authority
to sterilize stands by itself as an authority independent of other duties. For example, § 3.2-6534
identifies “[e]fforts to promote sterilization of dogs and cats” as separate from the “care and
maintenance of a pound.”
So not only is the authority to sterilize separate from the authority to capture, it is not attached in
any way to the duty to confine in a pound. Just as a locality need not operate a sterilization
program just because animals are “capture[d] and confine[d],” a locality need not “capture and
confine” feral cats in order to have a sterilization program for feral cats.
A member of the general public who traps a feral cat for sterilization is the “finder,” not
the “owner,” of the cat
The Advisory Opinion is quite clear that a private citizen who humanely traps a feral cat for the
purpose of sterilization is not automatically the owner of the cat. The Advisory Opinion notes
that the “law makes a distinction between an owner … and someone who temporarily takes
custody of and cares for and/or shelters such an animal” and concludes that a person trapping a
cat would not become “a de facto or de jure owner thereof through his actions of capturing and
temporarily harboring, caring for, and otherwise taking temporary custody of the animal.”
(Advisory Opinion, 5). That same logic regarding ownership should also apply to a person
returning a cat after sterilization. Indeed, there is nothing in the Advisory Opinion to suggest
ownership would attach after a private citizen returns a feral cat.
The Advisory Opinion makes a distinction between a locality-operated “capture and sterilize”
program, where return back to an outdoor colony is not allowed under § 3.2-6546, and a locality-
operated sterilization program, where no code sections prohibit the locality to accept cats from a
private citizen and give them back to the citizen at the conclusion of the sterilization procedure.
A sterilization program, where feral cats humanely trapped by private citizens are given back to
members of the public following sterilization, is clearly permissible.
Although currently-operating locality TNR programs comply with the conclusions of the
Advisory Opinion, there are obvious benefits to amending the Virginia code to allow for full
locality-operated capture-sterilize-return programs. Programs where the locality is engaged in all
aspects of the TNR process allow for synergies not possible under the current system. These
sorts of programs hold the promise of proactively neutering the highest number of animals and
being one of the most effective methods of reducing euthanasia in animal shelters. Animal
control officers in jurisdictions such as Spartanburg, South Carolina, who have adopted TNR
programs have reported overwhelmingly positive outcomes. Certainly, there are animal control
officers in Virginia who would like to become more directly involved in TNR. Amendments to
the Virginia code to authorize full locality-operated TNR would not undermine protections
currently afforded companion animals under the comprehensive animal care laws.
But even though the Virginia code does not permit full locality-sponsored capture-sterilize-return
programs, it does not follow that localities should not continue—or put in place—sterilization
programs for feral cats. As a policy matter, those programs are effective to provide humane care
to feral cats and to reduce the population of feral cats over time. Sterilization-alone programs
can provide significant benefits to communities and can leverage the efforts of volunteers in a
locality willing to provide assistance to cats.