Alleged Cow Owner Wins Appeal of Bosque County Stock Law Case

In a rare appellate opinion dealing with a Texas stock law, the Waco Court of Appeals recently found in favor of Bradley Evans, an “alleged” cow owner in the case of Evans v. Hendrix

The memorandum opinion was rendered by the Honorable Al Scoggins, a fomer district judge in my home town of Waxahachie, Texas.  According to Justice Scoggins's website, he is a horse owner.


Admittedly, the case does not involve a horse. But the fact scenario is one which could have easily involved a horse, and we can safely assume that the court of appeals decision would not have differed had the case involved a horse. 

The basic facts are as follows: Trucker Charles Hendrix collided with a cow on Highway 174 in rural Bosque County, damaging his big rig and the military cargo he was hauling (but Hendrix was not injured). Hendrix sued Evans, alleging that Evans was the owner of the cow in question. Hendrix asked the trial court to award him lost wages and damages to the tractor-trailer and cargo. After a bench trial, the trial court awarded Hendrix $10,000 in damages.

Evans was an "alleged" cow owner because he never admitted that he owned the cow. However, shortly after the accident, Hendrix observed Evans dragging the cow’s carcass up a nearby street with his tractor after having cut out the cow’s back straps.

On appeal, the Waco Court of Appeals reversed Hendrix’s award and ruled that Hendrix “take nothing”. What did Hendrix do wrong? According to the court:

  • Hendrix never pleaded or alleged that the dispute involved any stock laws [though my research indicates that Bosque County has enacted several stock laws related to cattle for different parts of the county between 1901 and 1939]. Hendrix might have added some ammunition to his case by pleading liability under the stock laws, assuming that the accident occurred in one of the areas of Bosque County where a stock law restricting the free roaming of cattle had been enacted.
  • Hendrix never argued that Evans violated any statutory provision. Because the stock law wasn’t raised, the court gave Hendrix the benefit of the doubt and assumed that Hendrix was relying on Section 143.102 of the Texas Agriculture Code, which deals with livestock roaming on the right-of-way of a highway. Under Section 143.102, the plaintiff must prove that a defendant knowingly permitted the livestock to roam on the highway. Hendrix put on no evidence that Evans knowingly allowed the cow to roam at large.

I think the Waco Court of Appeals got this right, given what appears to have been in the record. Hendrix may have survived appeal had he asserted liability under the local stock law on the trial court level, but he did not. 

Want more general info on Texas stock laws? Here’s a link to a great paper written and presented this year by Alex Eyssen at the Texas State Bar Agricultural Law CLE.

See also these blog entries on the topic of stock laws on the Equine Law Blog.

Follow me on Twitter: @alisonmrowe

Open Range Counties in Texas

As of today, I have received evidence that 23 Texas counties, in their entirety, are open range. These counties have sent me a letter stating that, as of the date of the letter, they are unaware of any stock law having been passed in their county. These counties include:

Andrews, Callahan, Camp, Childress, Collin, Cottle, Ector, Hemphill, Jeff Davis, Kenedy, King, La Salle, Loving, Midland, Navarro, Oldham, Palo Pinto, Reagan, Schleicher, Shackleford, Stephens, Sterling, and Throckmorton.

We have evidence that other counties have enacted stock laws for part of the county, but not the whole county. Therefore, some other counties are partially open range. Some counties are closed range as to some types of livestock, but open range as to others. 

There may be more open range or partially-open range counties than the ones I’ve mentioned. We are still collecting stock law evidence. As of today, we have evidence from 234 of the 254 counties in Texas. For more information, see my post entitled Compilation of Texas Stock Laws. If you would like a copy of an open range confirmation letter or a stock law that we have on file, please call 979-229-9718 or send an email to Rick Rowe. Please do not contact Alison Rowe or Kelly Hart & Hallman LLP with respect to stock law copies, as these requests are not being processed through our office.

**Even though most stock laws were enacted at the turn of the 20th century, a county’s stock law or open range status could change at any time. Therefore, please contact the county to confirm that our evidence is still current before relying upon it.**

Compilation of Texas Stock Laws

**List of available counties updated 11-15-10**

I have recently, with the help of my assistant (and soon-to-be law student) Christina Heddesheimer, taken on the monumental task of compiling the local stock laws for all 254 Texas counties. 

Oh, and when I say with the "help" of Christina, I mean that Christina is doing all of heavy lifting and all of the county-by-county research.  Her work has been invaluable.

We are so grateful to the many people who have taken time to assist us in this research project in over 100 Texas counties so far.  Thank you, Texas county officials!

This project takes extraordinary persistence, hours and hours of time, and lots of patience.  And money.  It's probably for these reasons that no other lawyer or organization has ever, in the history of the State of Texas, compiled all the stock laws in one place.  Until now....

So, why is this project so monumental, you ask?  As discussed in an earlier post, the default rule in Texas is that livestock may roam freely in Texas ("open range") .  The only state-wide exception is a prohibition of open range grazing/roaming on interstate and state highway right-of-ways.  Pursuant to the Texas Agriculture Code and its predecessors, counties have the right to hold one or more elections to restrict the free roaming of livestock.  The individual elections can include one or more species (such as cattle, horses, mules, hogs, sheep and goats), and the elections can be held for the whole county or part(s) of each county.

These laws are very difficult to find as they are only located in the commissioner's court minutes of each individual county.  The dates these laws were enacted range from the 1800s to now.

The stock laws are important because they often determine who is liable when, for example, a motorist collides with a horse on a farm-to-market road, or a horse gets loose and destroys someone else's property.

So far, we have obtained the stock law status of 234 Texas counties, and we continue to receive more updates daily.  We will periodically post updates as we gather more information from more counties.  For each of the following counties, we currently either have a copy of the stock law, or we have a confirmation that the county is open range:


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Protecting Your Horse During a Dispute

Texas law provides liens for two specific types of services provided to horse owners: 1) the stable keeper’s lien, (Tex. Prop. Code §70.003) which secures payment for charges related to the care of horses; and 2) the stock breeder’s lien, which secures payment for breeding services. The stable keeper’s lien also applies to an animal fed in confinement for slaughter, and thus can also be asserted by feedlot operators. See Tex. Prop. Code §70.005(c).

Unlike many other states, Texas does not provide veterinarians or farriers with a lien on a horse to secure payment for professional services rendered. However, the stableman’s lien in Texas does provide a farrier or vet who had a horse in his or her care a lien on the animal for costs of boarding the animal.

Two things to be considered are that 1) a service provider may attempt to hold your horses for nonpayment, even though no statutory lien exists. This may result in the necessity to get a writ of sequestration to regain possession; and 2) horse owners need to be aware of the lien laws in other states when shipping their horses across state lines in the possession of a service provider.
When a service provider refuses to turn over the horses until the full amount of the bill is paid, the local sheriff’s department and the Texas & Southwestern Cattle Raisers will rarely assist the horse owner in regaining possession of his horses due to the civil nature of the dispute. Without the aid of law enforcement, a horse owner may decide to pursue a lawsuit for conversion asking for the return of the animals that includes an application for a writ of sequestration to regain possession of the horses and to seek damages.

A writ of sequestration will enable the owner to regain possession of the horses within a short time, without a trial on the merits, and maintain possession until the lawsuit is disposed.

In the context of horses, a writ of sequestration is available to a plaintiff in a suit if the suit is for possession of horses or for foreclosure or enforcement of a lien or security interest in horses, and a reasonable conclusion may be drawn that there is immediate danger that the party in possession of the livestock will conceal, dispose of, ill-treat, waste, or destroy the livestock or remove it from the county during suit. Tex. Civ. Prac. & Rem. Code §62.001 (Vernon 1997). The defendant’s use of the livestock while the suit is pending is not enough for a writ to be granted. The plaintiff must fear that the livestock will be sold, mistreated, killed, or concealed. Mere depreciation in the value of the livestock during the pendency of the suit probably will not constitute injury that would warrant the issuance of a writ of sequestration. Commercial Acceptance Trust v. Parmer, 241 S.W.586 (Tex.Civ.App.—Fort Worth 1922, writ ref.)(involving depreciation of motor vehicle).

“Sequestration” is not a cause of action, but rather, a remedy available after suit has been filed, but before a judgment has been obtained. Its purpose is to prevent the destruction or disposal of property until the court can reach a final judgment.

To avoid these situations, horse owners and service providers should put all terms of the service agreement in writing. The contract needs to specify what the service provider has been hired to do with the horses, where they will keep the horses, and the expected payment for the care and services provided. Horse owners should ask all service providers to send a detailed bill at least once per month and be sure to pay bills timely.

Owners should not entrust their horses to anyone in whom they do not have full faith and confidence, and should keep in close contact with the person or company in possession of the horses. Similarly, a service provider needs to check references to make sure they are not accepting a client who will not end up paying for the services.


Is a Horseowner Liable for Damages if a Horse Gets Loose?

A gentleman recently told me that his stallion had gotten loose, gone onto his neighbor's unfenced property, and "worried" the neighbor's mares.  The neighbor shot at the stallion with a shotgun, and stated that the police told him he was justified in doing so because the stallion was "trespassing on his property."

Is the stallion owner liable for property damage or injury to persons caused by his stallion?  Generally speaking, not unless the stallion owner knowingly let the stallion roam free.

Important to this analysis is that Texas is, generally speaking, still an open range state.  That is--livestock may still roam at large in Texas with two exceptions:

  1. Public highwaysThe Texas Agriculture Code states "[a] person who owns or has responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway." Tex. Agric. Code § 143.102 (Vernon 2004)(emphasis added). The statute defines a "highway" as "a U.S. highway or a state highway in this state, but does not include a numbered farm-to-market road." Id. at § 143.101. Therefore, U.S. and state highways in Texas are effectively considered closed ranged. Conversely, the 40,000-plus miles of farm-to-market roads in Texas are unaffected by this statute.
  2. Stock Law Counties or Areas.  Chapter 143 of the Agriculture Code permits local elections to adopt a law (a.k.a. "stock law"), where a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held. A typical stock law will prohibit horses, mules, donkeys, sheep, goats, and cattle from running at large.

    As expressly provided by the Code, some counties in Texas have enacted county wide stock laws, yet others have chosen to elect stock laws only in certain precincts or areas within said county. Unfortunately, there is no statewide index that traces the counties or areas where stock laws have been passed.
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