The Fourteenth Court of Appeals in Houston recently ruled on a case regarding the jurisdiction of the Texas Animal Health Commission and the regulation of white-tailed deer to prevent the spread of chronic wasting disease.  [Read Opinion here.]

Photo by Acton Crawford on Unsplash

Background

RW Trophy Ranch (“RW”) is a deer breeding ranch in northeast Texas. It consists of a 68-acre deer breeding facility surrounded by a 1,500 acre ranch.  RW was certified under the Texas Animal Health Commission’s Texas Chronic Wasting Disease Herd Certification Program (“Program”).   The goal of the program is to control the occurrence of chronic wasting disease (“CWD”), a fatal neurodegenerative disease that affects cervid species like deer.

In February 2021, three of RW’s white-tailed deer in their breeding pens died of pneumonia.  In accordance with the Program, RW tested the dead deer for CWD.  One tested positive. In May 2021, the Texas Animal Health Commission (“TAHC”) issued a Hold Order requiring RW to restrict the movement of all CWD susceptible species on the premises.  In June 2021, the TAHC issued a Quarantine Order, ordering that all CWD-susceptible species were to be confined to the premises.

In August 2021, RW tested 49 bucks it wanted to release to its 1,500 acre ranch next to the breeding facility in advance of hunting season. The TAHC responded that RW must agree to a herd management plan before any releases could be made from the breeding facility.  RW received two proposed herd plans, both requiring all of RW’s white-tailed deer to be euthanized.

RW filed an appeal of the cancellation or suspension of their Program enrollment.  On the notice of appeal, RW’s owner made a handwritten note that RW objected to the herd plan as is and wished to discuss the 49 bucks that RW had tested with clear results.  TAHC held a meeting with RW by phone but did not issue a written decision or hold a hearing on this appeal.

RW filed suit in Travis County court in January 2022 seeking a writ compelling TAHC and its Director to provide it with a contested case hearing and a declaration that certain administrative rules exceeded the TAHC and Texas Parks and Wildlife Department (“TPWD”)’s authority.  The writ was dismissed, but all parties filed cross motions for summary judgment on the rules claims.  The trial court sided with TAHC and TPWD, granting their motion.  RW appealed.

Court of Appeals Opinion

The Fourteenth Court of Appeals in Houston affirmed.  [Read Opinion here.]

Plea to the Jurisdiction

RW first argued that TAHC and its Director had a mandatory duty to issue a written decision 14 days after  the telephone call.  RW claimed that the failure to do so denied it the ability to pursue a contested case hearing before the State Office of Administrative Hearings regarding its appeal of the cancellation of its Program status.   TAHC responded that RW failed to make the necessary showing to warrant mandamus relief by the court.

The court explained that sovereign immunity protects the State of Texas and its agencies from suit and liability. An exception to that protection, however, allows suits to require state officials to comply with statutory or constitutional provisions that are not prohibited by sovereign immunity.  To fall within this exception, a plaintiff’s suit must allege and prove that the state officer acted without legal authority or failed to perform a purely ministerial act.  If the plaintiff’s complaint involves an act of the officer’s discretion, immunity is not waived.   A law is deemed ministerial when it “clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion.” Additionally, to obtain mandamus relief, there must also be a demand for performance and subsequent refusal by the state official.

At issue was Rule 40.3(h).  Note, this rule has since been repealed, but was applicable to this case.

The court held that RW failed to comply with section (1) as it did not state “all of the facts and reasons upon which the herd owner relies to show that the reasons for the action are incorrect or do not support the action.”  Although RW filed an appeal, it wrote on the Notice of Appeal that it objected to the plan as is and wanted to discuss the 49 bucks.  This, the court held, indicated RW was not seeking to appeal the cancellation of its Program status or the specific reason given for the cancellation.  Instead, it sought to discuss a separate issue–the release of the 49 bucks.  Thus, because the substance of the appeal was not the cancellation of its Program status, it did not proceed under Rule 40.3(h), and RW cannot rely on this rule in support of its claim for mandamus relief.

Rules Challenge

RW set forth four arguments related to the scope of TAHC and TPWD’s authority under rules applicable at the time.

1. TAHC statutory authority is over livestock.

First, RW argues that the TAHC’s authority is limited to “livestock” and white-tailed deer are “wildlife” rather than livestock.  White-tailed deer are not included in the Texas Agriculture Code’s definition of “animal” or “livestock.” In light of this, RW claims that Rule 40.2 allows TAHC to take certain actions exceeding its statutory authority including (1) ordering CWD-positive herds to be quarantined until all herd plan requirements are met; (2) ordering herds remain under quarantine for 5 years from past exposure to a CWD-positive or CWD-exposed animal and until such time herd plan requirements are met; and (3) ordering that a herd plan require all CWD-exposed and CWD-suspect animals be euthanized.

RW cited to several provisions of the agriculture code expressly granting TAHC jurisdiction over “livestock” but not “wildlife” in support of its argument.  The court, however, noted that RW ignored Texas Agriculture Code Section 161.041 which provides that the TAHC “may act to eradicate or control any disease or agent of transmission for any disease that effects livestock, exotic livestock, domestic fowl, or exotic fowl, regardless of whether the disease is communicable even if the agent of transmission is an animal species that is not subject to the jurisdiction of the commission.”  The statute allows the TAHC to adopt “any rules necessary to carry out the purposes” of this section. Giving these provisions their plain meanings, the Court held that the TAHC has the authority to require herd plans, quarantine, and euthanizing of white-tailed deer.   RW’s first argument was overruled.

2. TAHC authority to require herd plans.

Next, RW argued that TAHC lacks authority to enforce a federal program in Texas because no cooperative program exists with the federal government.  RW based this argument on 4 TAC 40.2, which states that all CWD-positive and trace herds are to be restricted until all herd plan requirements are satisfied and such requirements may incorporate certain federal standards or testing requirements.   The court disagreed, noting that, as discussed above, the legislature gave the TAHC broad discretion to control any disease or agent of transmission.  Herd plan requirements with respect to controlling CWD fall within this broad authority.  RW’s second argument was overruled.

3. TAHC authority to prevent release of animals subject to quarantine to contiguous property under same ownership.

RW argued that that TAHC could not prohibit it from releasing its white-tailed deer from the breeding facility to its contiguous ranch.  RW relied on Texas Agric. Code Section 161.054 which states that the TAHC “may not adopt a rule that prohibits a person from moving animals…owned by that person within unquarantined contiguous lands owned or controlled by that person.”

The court noted, however, that the statute RW relies upon prohibits movement of animals between unquarantined contiguous lands.  Here, however, the breeding facility was subject to a quarantine order, and there was no indication in the record that it was lifted.  Thus, the statute did not apply.  RW’s third argument was overruled.

4. TAHC reliance on TPWD rules.

Here, RW essentially made the same arguments offered in its first issue, but this time to challenge TPWD rules.  Because the court already overruled the arguments above, the fourth issue was overruled.

What Happens Next?

The deadline to appeal has not yet passed, so RW could still decide to seek review from the Texas Supreme Court.

Key Takeaways

Although this case offered a number of procedural issues, there are a couple of key takeaways to consider.  First, the TAHC does have authority to pass rules related to white-tailed deer even though they are wildlife rather than livestock pursuant to TAHC’s authority to prevent the spread of disease that affects livestock.  Second, it offers a good reminder about ensuring all technical rules are followed when challenging an agency decision.  Here, the rules RW sought to rely upon regarding a written ruling and the subsequent appeals process were unavailable because of how RW framed the issue in the handwritten notes on the appeal document.