*This article is not a substitute for the advice of an attorney.*

Most Texans are quick to note that Texas is an “open range” or a “fence out” state, meaning that a livestock owner does not have a legal duty to prevent animals from getting onto the roadway.  Technically, this is a true statement of the common law in Texas.  There are, however, two major exceptions to this rule that are extremely important for livestock owners to be aware of.

Today, we will review the general fence law in Texas and the two major exceptions that modify that rule.  In Part 2 of this series, we will look at several Texas cases that illustrate how these rules work in real life situations.

Common Law

Under the common law (common law is the judge-made law that comes out of courts rather than statutes that are enacted by the legislature), it is true that Texas is an open range state.  The Texas Supreme Court made this clear over a century ago when it stated the following, “It is the right of every owner of domestic animals in this state…to allow them to run large.”  See Clarendon Land, Investment & Agency Co. v. McClelland, 23 S.W. 576 (1893).  This approach was reaffirmed more recently in 1999 when the Texas Supreme Court refused to adopt a common law duty that required a livestock owner to keep livestock off of the roadways.  See Gibbs v. Jackson, 990 S.W.2d 745 (1999).  In that case, the Court held that the owner of a horse had no duty to prevent the horse from roaming onto a farm-to-market road.  Without such a duty, a livestock owner may not be held liable for injuries to a motorist who collides with the livestock on the roadway.

This common law, however, is not the end of the story.  Although this law may be applicable in portions of the state, it is certainly not the law for all areas or all roadways in Texas.  Two exceptions modify this common law rule for certain areas:  stock laws and a statute pertaining to federal and state highways.

Stock Laws

Since 1876, the Texas Legislature has allowed for local stock laws to be passed that modify the common law rule of open range.  See Texas Agriculture Code Section 143.021 – 143.082.  Stock laws are considered by local voters and can apply to all or a portion of a county.  If these laws are in place, the open range common law is modified and landowners have a duty to prevent animals from entering the highway pursuant to the stock law.  Many stock laws were enacted across Texas during by the 1930’s.  The stock laws generally state that certain species of animals (i.e. horses, jacks, jennies, cattle, sheep, etc.) may not be permitted to run at large within the limits of the particular county.  Essentially, a stock law changes the area from open range to closed range.

Because each stock law is different, it is critical to determine the following information:  (1) Does a stock law exist in the area; (2) What animals are covered by the law; and (3) Did the landowner “permit” the animals to run at large.

Does a stock law exist?

Unfortunately, there is no official compilation of stock laws in Texas.  Instead, the laws are often contained in the minutes of county commissioners courts.  Persons seeking to find out if their area is covered or seeking to obtain a copy of the laws may request information from their local county officials as often county attorneys or county sheriffs may be able to provide this information.  Additionally, Ft. Worth based equine attorney, Alison Rowe, has compiled nearly all of the stock laws across the state and will provide this information for a small copying fee upon request.  To contact Ms. Rowe or to view a list of counties that have a stock law in at least some portion of the county, click here.

What animals are covered by the law?

If a stock law does exist in an area, it is critical to determine what species of animals are covered by the law.  It is possible, for example, that the stock law would apply to horses and donkeys, but might not apply to cattle in a particular area.  The Texas Agriculture Code allow stock laws to be enacted that regulate cattle or domestic turkeys (Section 143.071 – 143.082), hogs (143.051 – 143.056), horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats (143.021 – 143.034).  Importantly, the requirements for passing laws differ under each of the subsections and the Texas Attorney General has opined that laws previously passed that did not follow separate procedures under the subsection applicable to the specific animals at issue may be invalid.  See Texas Att’y General Opinion No. GA-0093 (2003) (available here).  Based on the particular law, it is possible that the same area may be closed range for horses and donkeys, but open range for cattle.

Were the animals “permitted” to run at large?

Most local stock laws prohibit a person from “permitting” the animal to run at large and only if a person “permits” a animal to run free may that person be liable if a third party is injured.  Therefore, it is important to determine how Texas courts interpret the meaning of “permit” under these rules.  The Beaumont Court of Appeals addressed this question in Rose v. Herbert Heirs, 305 S.W.3d 874 (Tex. App. Beaumont 2010) and held that “permit” meant to expressly or formally consent or to give leave.  Conversely, merely making it possible for an animal to run large was insufficient to impose liability on a landowner.  Similarly, the Amarillo Court of Appeals determined earlier this year that the mere fact that animals escape, alone, is no evidence of misconduct on the part of their owner.  See Rodriguez v. Sandhill Cattle Co., L.P., No. 07-13-00043-CV.  Instead the court looked to the owners actions to determine whether they were reasonable under the circumstances and if any evidence of negligence existed including whether the owners left the gate open, the landowners of the property authorized the lessees to allow cattle to run at large, the livestock owner or landowner had notice that the livestock was out on the roadway,  there was evidence that livestock had previously escaped from the property, or if the fences surrounding the pasture were not fit for ordinary use.

State and Federal Highways

The Texas Legislature has also enacted an exception to the open range rule for U.S. and state highways.  Pursuant to state statute, “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.”  See Texas Agric. Code Section 143.102.  In order to determine the scope of this statute, it is important to determine (1) what constitutes a “highway”; (2) what is meant by “knowingly permit”; and (3) who “owns or has responsibility for the control of” the animal.

What constitutes a highway?

Under this statutory provision, a “highway” is defined as “a U.S. highway or a state highway in this state, but does not include a numbered farm-to-market road.  See Texas Agric. Code Section 143.101.  Thus, all U.S. and state highways are considered to be closed range under Texas law, while farm-to-market roads are considered to be open range unless a local stock law modifies this rule.  The result of this rule is that it may well be in a single county that one roadway is closed range while another nearby roadway is open range.

Did the owner or responsible person “knowingly permit” the animals to run at large?

Although both stock laws and the federal and state highway statute have this similar “permit” requirement, the federal and state highway statute’s standard is higher, requiring that the owner knowingly permit an animal to run large.  One appellate court found that an owner acted knowingly when he was aware the fences were unable to withstand rainfalls, the cattle had escaped many times during rainstorms prior to the accident, that the police informed the owner that his cattle were on the roadway, and that the owner did not inspect the fences prior to the accident occurring.  See Weaver v. Brink, 613 S.W.2d 581 (Tex. App. Waco 1981).  Conversely, where a livestock owner kept his gate locked and chained and no prior knowledge of his cattle escaping on a roadway, there was insufficient evidence to prove that he acted “knowingly.”  See Evans v. Hendrix, 2011 Tex. App. LEXIS 6579 (Tex. App. Waco Aug. 17, 2011).

Who owns or has responsibility for the animals at issue?

This statute imposes liability on a person who owns or has responsibility for the control of certain animals.  Texas appellate courts have found that where a landowner leases his land to a third party and does not reserve the right to inspect the property is neither the owner, nor responsible for the control of, the animals and, therefore, cannot be liable under this statute.  See Levesque v. Wilkens, 57 S.W.3d 499 (Tex. App. Houston 2001).