Texas Fence Law: Open Range….Or Not? (Part 2)

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

Today we have Part 2 in this series providing an overview of Texas fence laws.  Last Monday, we walked through the laws pertaining to fence law and liability in Texas.  Today, we will look at examples of how these laws are applied.


 How Does This All Work?

Let’s use a hypothetical example to help explain how the law works in the different areas.  Assume that a horse was grazing in a pasture next to a roadway owned by the horse owner.  At some point during the day, the horse got out of the pasture and made his way onto the road.  A motorist was driving down the roadway and hit the horse with her vehicle.  The motorist suffered damage to the vehicle and personal injuries.  Would the horse owner be liable to the motorist?

1.  If this accident occurred on a farm-to-market road in an area that did not have a stock law, then the common law “open range” rule would apply, and the horse owner would not be held liable.

2.  If this accident occurred on a farm-to-market road in an area that had enacted a stock law, that stock law would apply.  Because each local stock law differs, it would be necessary to analyze the exact provisions in that location.  If, however, the stock law provided the general language that horses may not be permitted to run at large, the landowner would be liable if she permitted–essentially expressly consented or acted negligently in causing–the horse to escape.

3.  If this accident occurred on a Federal or State Highway (like I-40 or Highway 6), the horse owner could be liable to the driver if the horse owner “knowingly permitted” the horse to run free on the roadway.  For example, if the horse owner knew that the fence was damaged and that the horse previously escaped and did nothing to remedy that damage, she could be liable.   This analysis would apply whether a local stock law was in place or not.

Examples of Actual Cases

There are several appellate court cases that help to illustrate the fence law principles in Texas.  I have selected three to briefly review below.

Case #1:  Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999).  Ms. Jackson’s vehicle hit a  horse named Tiny who was standing on a Farm-to-Market road in rural Upshur County.  Because the accident did not occur on a state or federal highway, and because the portion of Upshur county in which the accident occurred had not passed a stock law, the Texas Supreme Court found that the horse owner had no duty to the driver.  “There is no provision [in the Agriculture Code], however, that establishes any responsibility to keep horses off Farm-to-Market roads that are not subject to a local stock law.”  The case against the horse owner was dismissed.

Case #2:  Rodriguez v. Sandhill Cattle Co., L.P. (Amarillo Court of Appeals March 10, 2014).  Mr. Rodriguez sued Sandhill Cattle Co. for damages sustained when he collided with cattle on a roadway after midnight in rural Castro County.  The cattle, owned by Sandhill, were pastured several miles away in a pasture surrounded by a hotwire fence.  Castro County passed a local stock law pursuant to Texas Agriculture Code Section 143.074, which states that “a person may not permit [livestock] to run at large in the county or area in which” a local stock law has been adopted.  In this case, the question before the court was whether any evidence was offered to show that Sandhill “permitted” the livestock to run at large.  The court found there was no such evidence and dismissed the case, finding that Sandhill did not breach its duty because it did not permit livestock to run at large.  In reaching this decision, the court listed several examples of the type of evidence that might be sufficient to prove that the landowner did “permit” such roaming, including if the owners left the gate open, if the landowners of the property authorized the lessees to allow cattle to run at large, if the livestock owner or landowner had notice that the livestock was out on the roadway, if there was evidence that livestock had previously escaped from the property, or if the fences surrounding the pasture were not fit for ordinary use.  Here again, the case against the livestock owner was dismissed.

Case #3:  Levesque v. Wilkens, 57 S.W.3d 499 (Tex. App. Houston 2001).  Here, the landowners owned property along Interstate 45, which they leased to a livestock owner to pasture cattle.  The lease granted exclusive possession to the cattle owner and the landowner did not reserve the right to re-enter or inspect the property.  The court found that because the Texas highway fence statute imposed a duty upon only the person who owned or was responsible for the animals, the landlord was not liable.  Importantly, the landlord did not own the animals and did not reserve the right to enter or inspect the property at issue.  “When the lessor has no control over the premises, the lessor has no liability for injuries stemming from leased premises within the control of a tenant.”  The case against the landowner was dismissed.

So What Should a Livestock Owner Do?

The best thing that any livestock owner can do is not to act in a negligent manner.  Regardless of whether the land is located on a federal or state highway or a farm-to-market road and regardless of whether a stock law exists in the area, the best thing to do is act reasonably with regard to the building, inspection, and maintenance of all fences.  Similarly, if a landowner or livestock owner have certain livestock that frequently get out and make their way onto a highway, it is a good idea to consider moving those animals to another pasture that does not abut a roadway.  This advice is especially important for those Texans with livestock on or near federal or state highways or who live in a stock law area.

Additionally, all Texas landowners and livestock owners should be aware of whether stock laws exist in their county that may be applicable to their specific operation.

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