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

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:

 

 

 

 

1.     Anderson

2.     Andrews

3.     Angelina

4.     Aransas

5.     Archer

6.     Armstrong

7.     Atascosa

8.     Austin

9.     Bailey

10.   Bandera

11.   Bastrop

12.   Baylor

13.   Bee

14.   Bell

15.   Bexar

16.   Blanco

17.   Borden

18.   Bosque

19.   Bowie

20.   Brazoria

21.   Brewster

22.   Briscoe

23.   Brown

24.   Burleson

25.   Burnet

26.   Caldwell

27.   Calhoun

28.   Callahan

29.   Cameron

30.   Camp

31.   Carson

32.   Castro

33.   Cherokee

34.   Childress

35.   Clay

36.   Cochran

37.   Coke

38.   Coleman

39.   Collin

40.   Collingsworth

41.   Colorado

42.   Comal

43.   Comanche

44.   Concho

45.   Cooke

46.   Coryell

47.   Cottle

48.   Crockett

49.   Dallam

50.   Dallas

51.   Dawson

52.   Deaf Smith

53.   Delta

54.   Denton

55.   DeWitt

56.   Dickens

57.   Dimmit

58.   Duval

59.   Eastland

60.   Ector

61.   Edwards

62.   Ellis

63.   Erath

64.   Fannin

65.   Fayette

66.   Fisher

67.   Floyd

68.   Foard

69.   Fort Bend

70.   Franklin

71.   Freestone

72.   Frio

73.   Galveston

74.   Gaines

75.   Garza

76.   Gillespie

77.   Glasscock

78.   Gonzales

79.   Gray

80.   Grayson

81.   Gregg

82.   Grimes

83.   Guadalupe

84.   Hale

85.   Hall

86.   Hamilton

87.   Hansford

88.   Hardeman

89.   Hardin

90.   Harris

91.   Harrison

92.   Hartley

93.   Haskell

94.   Hays

95.   Hemphill

96.   Henderson

97.   Hill

98.   Hockley

99.   Hood

100.Hopkins

101.Houston

102.Howard

103.Hunt

104.Hutchinson

105.Irion

106.Jack

107.Jackson

108.Jasper

109.Jeff Davis

110.Jefferson

111.Jim Hogg

112.Jim Wells

113.Johnson

114.Jones

115.Kaufman

116.Karnes

117.Kendall

118.Kenedy

119.Kent

120.Kerr

121.Kimble

122.King

123.Kinney

124.Kleberg

125.Lamar

126.Lamb

127.Lampasas

128.La Salle

129.Lavaca

130.Lee

131.Leon

132.Liberty

133.Limestone

134.Lipscomb

135.Live Oak

136.Llano

137.Loving

138.Lubbock

139.Lynn

140.Madison

141.Marion

142.Martin

143.Mason

144.Matagorda

145.Maverick

146.McCulloch

147.McLennan

148.McMullen

149.Medina

150.Menard

151.Midland

152.Milam

153.Mills

154.Mitchell

155.Montague

156.Montgomery

157.Moore

158.Morris

159.Nacogdoches

160.Navarro

161.Newton

162.Nolan

163.Nueces

164.Ochiltree

165.Oldham

166.Orange

167.Palo Pinto

168.Panola

169.Parker

170.Parmer

171.Pecos

172.Polk

173.Potter

174.Presidio

175.Rains

176.Randall

177.Reagan

178.Real

179.Red River

180.Reeves

181.Refugio

182.Roberts

183.Robertson

184.Rockwall

185.Runnels

186.Rusk

187.Sabine

188.San Jacinto

189.San Patricio

190.San Saba

191.Schleicher

192.Scurry

193.Shackelford

194.Shelby

195.Sherman

196.Smith

197.Somervell

198.Stephens

199.Sterling

200.Stonewall

201.Sutton

202.Swisher

203.Tarrant

204.Taylor

205.Terrell

206.Terry

207.Throckmorton

208.Tom Green

209.Travis

210.Trinity

211.Tyler

212.Upshur

213.Upton

214.Uvalde

215.Val Verde

216.Van Zandt

217.Victoria

218.Waller

219.Walker

220.Ward

221.Washington

222.Wharton

223.Wheeler

224.Wichita

225.Wilbarger

226.Willacy

227.Williamson

228.Wilson

229.Winkler

230.Wise

231.Wood

232.Yoakum

233.Young

234.Zavala

If you would like a copy of one or more stock laws in our compilation, 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.  We charge a fee for copies due to the time-intensive and costly nature of this research project. 

Can You Keep or Sell Stray Horses That Wander Onto Your Property If the Owner Doesn't Show Up to Claim Them?

 

A man from Texas called our office who recently had 4 horses wander onto his property over the course of several days. He placed them in a pasture with his other horses and waited to hear if anyone was looking for them. The man is interested in keeping the horses and wants to know how long he has to wait until the horses are considered legally abandoned and he can claim them as his own?

Finding stray livestock in Texas is not a case of “finders keepers, losers weepers”. The law of livestock estrays, found in Chapter 142 of the Texas Agriculture Code, as well as the livestock estray laws particular to each county in Texas apply here. This law requires people who find stray livestock to notify the sheriff immediately about the discovery of the livestock. Once the sheriff’s department is notified of the presence of the stray horses, they will attempt to find the owner and/or impound the horses. If the sheriff cannot find the owner, they will, at the landowner’s request, impound the horse and eventually auction them off if the owner does not claim them within 18 days after impoundment.

Someone who finds stray horses on their property should::

1) Notify the sheriff about the stray horses (with detailed descriptions) in writing, via fax, or some other way that provides proof that you sent notice. The sheriff must be notified within five days of discovery of the animals if you later wish to seek compensation for your costs of caring for the animals.

2) Ask the sheriff where you can find a copy of your county-specific livestock estray laws, if any;

3) Keep detailed records and receipts of everything you spend on the horses. If the owner returns to claim the horses, or the sheriff auctions off the horses, you are entitled to receive reimbursement for costs related to the care of the animal; and

4) If you wish to own the horses, you should keep in touch with the sheriff to find out when and where the sheriff’s sale will occur. You can bid on the horses there.

Note: If the sheriff locates the owner or if the owner returns to claim the horses and there is a disagreement over the amount owed for their care, the landowner may file a petition under the Section 142.007 of the Texas Agriculture Code in the justice of the peace court in their county and have the matter settled in justice court.
 

 

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.

Rather, the results of local stock law elections are recorded in the minutes of the county commissioners court for that specific county. Thus, an attorney may have to review several decades worth of commissioners court records in order to locate the results of a stock law election. However, many county clerks, especially those in predominately rural counties, are often able to direct individuals to the applicable stock law or laws for their respective counties. Another quick resource on whether or not you are in a stock law area is the county attorney for your county.

Going back to our fact pattern, even if our friend's stallion had escaped in a stock law county or area, our friend would not necessarily be liable for any injury or property damage caused by his stallion.  "A violation of the statute requiring restraint of animals in stock law counties does not create a prima facie case for recovery so as to require the owner of livestock to prove an excuse or explanation for the animals' escape." Davis v. Massey, 324 S.W.2d 242, 243 (Tex. Civ. App.--Waco 1959, no writ).  In other words, a knowing violation of the statute or an actual showing of negligence on the part of the stallion owner will generally be required for liability to attach.  Also, in an open range counties, farmers and other landowners bear the responsibility to exclude (fence out) livestock. Thus, if the neighbor's property was in an open range area, keeping the stallion out would have been the neighbor's responsibility.

Can the neighbor shoot the stallion if he is "trespassing"?  Probably not.  In How to Deal With Trespassers On Your Property, we touched on when a landowner may shoot at a person who is trespassing.  Lethal force against people is allowed in certain limited circumstances, such as the prevention of arson, burglary, or theft.  There is not any such thing as criminal trespass on the part of a horse that would give occasion to use lethal force, because horses cannot know they are trespassing and thus cannot commit "trespass".  Secondly, while the Texas Health & Safety Code allows landowners to shoot or kill dogs or coyotes that are posing a danger to their livestock, that statute does not apply to non-canine species.