Attorney General Opinion Sought in Fence Law Issue

Representative Poncho Nevarez has filed a request for an Attorney General Opinion to provide guidance on how stray livestock should be handled in an open range county. [Read request here.]  This is an issue not previously addressed by a Texas appellate court, on which there is a good deal of confusion, and on which I receive a lot of questions.  It will be very interesting to see what opinion the AG offers.

TAMU AgriLife photo by Steve Byrns

Legal Background

Presidio County, Texas is open range.  The county has never passed a local stock law requiring livestock owners to fence their animals.  Instead, open range law provides that there is no obligation on the part of a livestock owner to prevent animals from running at large in Presidio County.  On the contrary, it is the responsibility of a neighboring landowner to fence animals out. Although generally an animal owner may not be liable for livestock at large in an open range county, there are a handful of situations where liability may be imposed.  For example, an animal owner in an open range area can be liable if the landowner intentionally drives the livestock onto the land of another, landowner has knowledge that the animals are diseased, landowner has knowledge that the animals are viscous or breachy, or a situation whereby the neighboring landowner built a fence that complies with Texas Agriculture Code 143.028, yet the  animals still got onto the property.  [For more information on the basics of fence law, click here and go to Chapter 6.]

Texas estray law, found in Texas Agriculture Code Section 142, provides a procedure for dealing with stray livestock on the property of another.  A landowner upon whose property livestock are located must call the sheriff as soon as reasonably practical to report stray livestock.  The sheriff then searches for the owner and may impound the animal if no owner is found within 5 days.  The sheriff must then post notice of the animals in various ways and, eventually, if not owner is found, the sheriff is authorized to sell the animals at public auction.  [To read more about the estray law, click here.]

Factual Background

In Presidio County, the County Sheriff believes it is the responsibility of the sheriff’s office to handle stray livestock by virtue the Texas estray law.  The County Attorney has issued a legal opinion that the estray laws do not apply in an open range county.  Judge Dan Mills, an advisor for the sheriff’s association of Texas, agreed with the County Attorney.  John Fowlkes, the former County Attorney, interpreted the law in the same was as the Sheriff’s office and believes that the estray laws do apply in an open range county.  In light of this disagreement, Representative Nevarez seeks an opinion from the Texas Attorney General on the answer to this question.

My Thoughts

First, many people may not have heard of an AG opinion before.  Keep in mind that courts cannot speculate on how the law should work or what they would do in a case that is not before them.  In other words, courts can only rule on the facts that are brought to them in a case.  Sometimes, there are legal questions that arise that courts have not spoken to, such as this one.  The AG can issue an opinion interpreting existing law, basically stating how he or she thinks a court would interpret certain legal provisions.  The AG opinion is not binding on a court in the future–the court can rule how it sees fit–but does provide guidance for people with questions about the law.

Second, I find it helpful to consider estray laws a procedure by which livestock are removed from the land of another.  It strikes me that there could be situations, even in an open range area, where that procedure could be necessary.  So while I do not think that it would be correct to say that the estray law can never apply in an open range county, I also do not think that estray law can always apply in an open range county such that the estray law, itself, would essentially convert an open range county to a closed range county.   In other words, it seems that the estray law should apply in open range counties, but only in a manner that would not result in converting the open range county to a closed range county and imposing a new duty upon the livestock owner. The estray law focuses on how to remove stray livestock from property of another, and nothing in the provisions provides any limitation on their applicability throughout the state.  In other words, nothing in the statute says it applies only in a closed range county.  A blanket prohibition on the estray law in an open range county would allow no recourse for a landowner–even one who might have built a sufficient fence but animals continue to get in the property–to have the animals removed from his or her land. Also, as noted above, there are already common law limitations on the concept of open range, such as a landowner may not let diseased animals roam free and may not intentionally drive cattle onto the land of another.  It appears that, at least to some extent, the estray law could be necessary to enforce these existing limitations on the open range rights of landowners.

For example, in a situation where a neighboring landowner in an open range county has no fence and does nothing to prevent the animal from entering his or her property, that may be a situation where estray laws should not apply, as they would essentially convert the rule from open to closed range by forcing the livestock owner to fence animals in.  However, in circumstances where a neighboring landowner might have a fence that meets the statutory sufficiency standards, yet on whom another’s livestock continually enter, the estray laws potentially should allow a remedy for that landowner.

Why do we care?

The answer to this question will have impacts far beyond Presidio County.  There are a number of Texas counties that remain open range for some or all species that could be impacted by the outcome of this request for opinion.  For livestock and landowners in those counties, this could greatly impact their rights and responsibilities.

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