Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-l-GN-15-004391, HONORABLE TIM SULAK, JUDGE PRESIDING.
Justices Goodwin, Baker, and Smith
a dispute between commercial deer breeders and the Texas
Parks and Wildlife Department (the Department) over the
ownership of captive-bred whitetail deer. Ken Bailey and
Bradley Peterson each hold a deer breeder's permit issued
by the Department authorizing them "to possess live
breeder deer in captivity" and to "engage in the
business of breeding breeder deer." See Tex.
Parks & Wild. Code §§ 43.352(a), .357(a)(1).
Peterson and Bailey sued the Department and several of its
officials to establish that breeder deer are or became
private property and to invalidate Department rules requiring
breeders to test for chronic wasting disease. The Department
responded that breeder deer are wild animals and therefore
"property of the people of this state." See
id. § 1.011(a). The district court granted the
Department's partial plea to the jurisdiction and motion
for summary judgment, denied Peterson's cross-motion, and
awarded the Department its attorneys' fees. For the
reasons that follow, we will affirm.
AND FACTUAL BACKGROUND
Department is broadly responsible for administering the laws
related to wildlife and "for protecting the state's
fish and wildlife resources." See id.
§§ 12.001(a), .0011(a). In addition to granting the
Department broad enforcement powers to carry out this task,
see id. § § 12.102-. 105, the Legislature
has authorized the Department to grant certain licenses and
permits to assist with managing the state's resources.
See generally id. §§ 43.021-.955
("Special Licenses and Permits"). Subchapter L
concerns the deer breeder's permit, which authorizes a
person to "possess live breeder deer in captivity."
Id. § 43.352(a); see generally id.
§§ 43.351-.369 ("Deer Breeder's
Permit"). Specifically, the permit authorizes a person
to "engage in the business of breeding breeder deer in
the immediate locality for which the permit was issued"
and to "sell, transfer to another person, or hold in
captivity live breeder deer for the purpose of propagation or
sale." Id. § 43.357(a)(1)-(2). These
rights are subject to the Department's authority to adopt
rules concerning "the possession of breeder deer"
and the "procedures and requirements for the purchase,
transfer, sale, or shipment of breeder deer," among
other subjects. See id. § 43.357(b)(1), (5).
Furthermore, moving breeder deer into or out of a facility
requires a separate transfer permit issued by the
Department. Id. § 43.362(b)
(providing, with exceptions not relevant here, that "no
person may purchase, obtain, sell, transfer, or accept in
this state a live breeder deer unless the person obtains a
transfer permit"). "Only breeder deer that are in a
healthy condition may be . . . transferred."
Id. § 43.362(a).
the more serious health threats to deer is chronic wasting
disease (CWD), a progressive neurodegenerative disease that
affects cervid species, including deer, elk, reindeer, and
moose. Chronic Wasting Disease, Centers for Disease
Control and Prevention,
https://www.cdc.gov/prions/cwd/index.html (last visited June
24, 2019). Symptoms include "drastic weight loss
(wasting), stumbling, listlessness and other neurologic
symptoms." Id. "CWD is fatal to animals
and there are no treatments or vaccines." Id.
To address the risk of CWD, the Department adopted a rule
requiring deer breeders to test their herds for CWD as a
prerequisite to applying for a transfer permit. See
generally 31 Tex. Admin. Code § 65.604 (2018) (Tex.
Parks and Wild. Dep't, Disease Monitoring). Rule 65.604
prohibits any person from removing deer from a breeder
facility that is not "movement qualified" or
introducing deer from an unqualified facility without express
permission from the Department. See id. §
65.604(a)-(c). A facility "is movement qualified if no
CWD test results of 'detected' have been returned
from an accredited test facility for breeder deer submitted
from the facility" and one of three criteria is
(1)the facility is certified by the Texas Animal Health
Commission (TAHC) as having a CWD Monitored Herd Status of
Level A or higher;
(2) less than five eligible breeder deer mortalities have
occurred within the facility as of May 23, 2006; or
(3) CWD test results of 'not detected' have been
returned from an accredited test facility on a minimum of 20%
of all eligible breeder deer mortalities occurring within the
facility as May 23, 2006.
Id. § 65.604(d). A movement-qualified facility
loses that status if it does not meet the requirements of
Subsection (d) "by March 31 of any year."
Id. § 65.604(f).
30, 2015, the Department confirmed the first positive test
for CWD in Texas captive deer. Subsequent testing found
several other infected deer in the same facility. Soon
afterwards, the Department's executive director, Carter
Smith, promulgated emergency rules significantly increasing
the testing necessary to acquire movement-qualified status.
See 40 Tex. Reg. 5549, 5566-5570 (2015) (emerg. rule
31 Tex. Admin. Code §§ 65.90-.99), subsequently
proposed by *\\ Tex. Reg. 2817, 2853, adopted
by 41 Tex. Reg. 5631, 5726 (codified as amended at 31
Tex. Admin. Code §§ 65.90-.99). Further, the new
rules provided that "no live breeder deer may be
transferred anywhere for any reason" except as provided
in the new rules. See 40 Tex. Reg. at 5568-69. The
preface to the emergency rules stated these steps were
necessary because up to 30% of Texas deer breeder facilities
were potentially exposed to the disease but the manner in
which the disease entered that facility was still unknown.
Id. at 5566. Smith acted in part under his authority
to adopt emergency rules to address "an immediate danger
to a species authorized to be regulated by the
department." Tex. Parks & Wild. Code § 12.027.
The order also states the Department is authorized to
regulate whitetail deer in captivity as "game
and Peterson sued the Department seeking declaratory relief
invalidating the emergency rules or, in the alternative,
certain provisions of the Parks and Wildlife Code. First,
they sought a declaration under the Uniform Declaratory
Judgment Act (UDJA) that captive-bred deer are private
property rather than wild animals. See Tex. Civ.
Prac. & Rem. Code § 37.004(a) (authorizing a person
to "whose rights, status, or other legal relations are
affected by a statute" to "obtain a declaration of
rights, status, or other legal relations thereunder").
Based on that ownership, they next sought a declaration under
the Administrative Procedures Act (APA) that the emergency
rules violated procedural due process. See Tex.
Gov't Code § 2001.038(a) (authorizing declaratory
judgment challenging "[t]he validity of applicability of
a rule ... if it is alleged that the rule or its threatened
application interferes with or impairs, or threatens to
interfere with or impair, a legal right or privilege of the
plaintiff). As an alternative to the rules challenge, Bailey
and Peterson asked the district court to declare (under the
UDJA) that various parts of the Parks and Wildlife Code are
unconstitutional as applied to them for violating procedural
due process. Bailey and Peterson also sued Smith, Big Game
Program Director Mitch Lockwood, and Wildlife Division
Director Clayton Wolf alleging they acted ultra
vires by adopting or being involved in the adoption of
the emergency rules. Finally, Bailey and Peterson prayed for
an award of attorney's fees as allowed by the UDJA.
See Tex. Civ. Prac. & Rem. Code § 37.009
("In any proceeding under this chapter, the court may
award costs and reasonable and necessary attorney's fees
as are equitable and just.").
Department filed an answer and a plea to the jurisdiction
asserting sovereign immunity. In its answer, the Department
prayed for an award of attorney's fees for defending
against the UDJA claims. The Department subsequently adopted
permanent rules with essentially the same movement
restrictions and heightened testing requirements as the
emergency rules. See 41 Tex. Reg. 5631, 5726-41.
Peterson and Bailey amended their pleadings to challenge the
permanent rules (CWD Rules). Bailey then nonsuited his
various proceedings that do not concern us here, the
Department, Smith, Lockwood, and Wolf filed an amended plea
to the jurisdiction and motion for summary judgment. The
Department asserted the court lacked jurisdiction to decide
Peterson's claim for an ownership declaration and that it
was entitled to summary judgment on his other two claims
because Peterson did not possess an ownership interest in his
breeder deer. Peterson filed a cross-motion for summary
district court heard arguments, reviewed evidence submitted
by the parties, and signed an order providing:
IT IS ORDERED that [the Department]'s Partial Plea to the
Jurisdiction that the Court lacks jurisdiction over
Plaintiffs request for a declaration of deer ownership is
IT IS ORDERED that [the Department]'s Partial Plea to the
Jurisdiction that the Court lacks jurisdiction over the State
Officials with respect to Plaintiffs statutory and
constitutional challenges to the rules and the constitutional
challenges to the statutes is GRANTED.
In addition to and as an alternative, if necessary, to the
Court's rulings on [the Department's] Partial Pleas
to the Jurisdiction, the Court ORDERS that [the
Department's] Motion for Summary Judgment is GRANTED and
that Plaintiffs Motion for Summary Judgment is DENIED."
The Court further ORDERS that [the Department]'s Motion
for Attorney's Fees is GRANTED. The Court finds and
concludes that [the Department]'s defenses of Plaintiffs
claims are so inextricably intertwined that segregation of
Defendant's attorney's fees is not required.
Therefore, the Court ORDERS that [the Department] recover
attorney's fees in the amount of $425, 862.50 ($362,
967.50 from Plaintiffs Bailey and Peterson jointly and
severally, plus $62, 895.00 from Plaintiff Peterson,
individually). The Court further ORDERS that [Peterson's]
Motion for Attorney's Fees is DENIED.
appeal followed. Peterson appeals the district court's
rulings on the plea to the jurisdiction and cross-motions for
summary judgment. Bailey and Peterson jointly challenge the
first address whether the district court correctly concluded
that sovereign immunity barred it from deciding
Peterson's claim for a declaration of ownership and his
ultra vires claims against Smith, Lockwood, and
of Review and Applicable Law
to the jurisdiction challenges a court's authority over
the subject matter of a claim. City oflngleside v. City
of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per
curiam). Whether a court has subject matter jurisdiction is a
question of law we review de novo. Id. When a plea
to the jurisdiction challenges the pleadings, as here, we
must determine if the plaintiff carried his burden to plead
"facts that affirmatively demonstrate the court's
jurisdiction to hear the case." Meyers v.
JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018).
In doing so, we construe the pleadings liberally and consider
the pleader's intent. Id. A plea to the
jurisdiction maybe granted without affording the plaintiff an
opportunity to amend only if the pleadings affirmatively
negate the existence of jurisdiction. Texas Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227
immunity prohibits "suits against the state unless the
state consents and waives its immunity." Nazari v.
State, 561 S.W.3d495, 500 (Tex. 2018). Sovereign
immunity from suit implicates courts' subj ect matter
jurisdiction "because it recognizes' the courts'
limited authority over the sovereign creating
them.'" Id. (quoting Hall v.
McRaven, 508 S.W.3d 232, 238 (Tex. 2017)). When
applicable, sovereign immunity "shield[s] the public
from the costs and consequences of improvident actions of
their governments." Tookev. Cityof Mexia,
197S.W.3d325, 332 (Tex. 2006).
address the applicability of immunity through a two-step
process. "The judiciary determines the applicability of
immunity in the first instance and delineates its boundaries.
If immunity is applicable, then the judiciary defers to the
legislature to waive such immunity." Wasson
Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427,
435 (Tex. 2016) (internal citation omitted). The Legislature
may waive immunity by "clear and unambiguous
language" in a statute or legislative resolution.
Nazari, 561 S.W.3d at 500 (quoting Tex. Gov't
Code § 311.034).
initially asserts the Department's immunity does not
apply because it requested attorney's fees. The Texas
Supreme Court has held that when a governmental entity
"asserts affirmative claims for monetary recovery,"
immunity does not apply to counterclaims for monetary relief
that are "germane to, connected with, and properly
defensive to those asserted by the governmental entity."
Reata Constr. Corp. v. City of Dallas, 197
S.W.3d371, 376-77 (Tex. 2006). We agree with Peterson that a
request for attorney's fees under the UDJA is an
affirmative claim, seeKelsall v. Haisten, 564 S.W.3d
157, 164 (Tex. App.-Houston [1st Dist] 2018, no pet.), but a
fee request that is "purely defensive in nature"
and "unconnected to any claim for monetary relief does
not abrogate immunity under Reata. See Texas Dep't of
Criminal Justice v. McBride, 317 S.W.3d 731, 733 (Tex.
2010). The Department did not file suit in this case and did
not seek monetary recovery apart from its request for fees
incurred in defending against Peterson's claims, i.e., a
"purely defensive" request for fees. As a result,
Reata does not abrogate its immunity. See
concluded the Department's immunity applies, we now turn
to whether Peterson pled a waiver of it for his ownership
declaration and his ultra vires claims. The UDJA
provides that "[a] person whose rights, status, or other
legal relations are affected by a statute . . . may have
determined any question of construction or validity arising
under the . . . statute . . . and obtain a declaration of
rights, status, or other legal relations thereunder."
Tex. Civ. Prac. & Rem. Code § 37.004(a). The Texas
Supreme Court has explained the UDJA generally "does not
enlarge the trial court's jurisdiction but is 'merely
a procedural device for deciding cases already within a
court's jurisdiction.'" Texas Dep't of
Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011)
(per curiam) (quoting Texas Parks & Wildlife
Dep't v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex.
2011)). The UDJA's sole feature that affects a trial
court's subject matter jurisdiction is a limited waiver
of sovereign immunity for "claims challenging the
validity of ordinances or statutes." Texas Lottery
Comm 'n v. First State Bank of DeQueen, 325 S.W.3d
628, 633-34 (Tex. 2010) (quoting City of El Paso v.
Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009)). However,
the UDJA's waiver of immunity does not apply "when
the plaintiff seeks a declaration of his or her rights under
a statute or other law." Sefzik, 355 S.W.3d at
contends that the district court necessarily possessed
jurisdiction to render his ownership declaration because his
remaining claims turn on that very issue. We agree that
Peterson's ownership interest in his breeder deer is
relevant to those claims and decide that issue below, but
that overlap does not mean the district court necessarily
possessed jurisdiction over this claim.
SeeHeckman v. Williamson County, 369 S.W.3d 137,
152-53 (Tex. 2012) (statingrule that plaintiff "must
demonstrate that the court has jurisdiction over .. . each of
his claims" and that "the court must dismiss those
claims (and only those claims) over which it lacks
jurisdiction"). Peterson goes on to ask us to recognize
a waiver of immunity by analogy to the Texas
Constitution's open courts guarantee, which states:
"All courts shall be open, and every person for an
injury done him, in his lands, goods, person or reputation,
shall have remedy by due course of law." Tex. Const,
art. I, §13. This provision guarantees that the
legislature may not abolish a well-established common law
cause of action for injuries done to one's "lands,
goods, person or reputation" without providing a
"reasonable substitute." OncorElec. Delivery
Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 143 (Tex.
2018). Peterson argues "[i]t makes no sense" for
Texas courts to have jurisdiction to decide whether the
Legislature has unreasonably abridged the right to recover
for damages to "goods"-i.e., property-but have no
power to decide whether property rights exist in the first
instance. But Peterson does not allege a due-course-of-law
claim. He seeks a freestanding declaration of his statutory
rights, and the Texas Supreme Court has been clear that state
agencies are immune from such claims absent a specific
waiver. SeeSefzik, 355 S.W.3dat 621;
Sawyer Jr., 354 S.W.3d at 388 (holding "no
general right to sue a state agency for a declaration of
rights" under UD JA exists). Having identified none, we
conclude the district court lacked jurisdiction over
Peterson's claim for an ownership declaration.
SeeMcLane Co. v. Tex. Alcoholic Beverage Comm
'n, 514 S.W.3d 871, 876 (Tex. App.-Austin 2017, pet.
denied) ("[The Texas Supreme Court] has squarely
repudiated the once-widespread notion that the UDJA confers
some broader right to sue government to obtain 'statutory
construction' or a 'declaration of rights,
'"(quoting Ex parte Springsteen, 506
S.W.3d789, 799 (Tex. App.-Austin 2016, pet. denied))).
also asserted claims against Smith, Lockwood, and Wolf in
their official capacities. Sovereign immunity from suit
generally extends to state officials acting in their official
capacities because "a suit against a government official
acting in an official capacity is 'merely another way of
pleading an action against the entity of which the official
is an agent.'" Brown & Gay Eng'g, Inc.
v. Olivares, 461 S.W.3d 117, 120 (Tex. 2015) (quoting
Texas Adjutant Gen. 's Office v.
Ngakoue, 408 S.W.3d 350, 356 (Tex. 2013)). However, a
suit against a state official can go forward if the official
"acted ultra vires, or without legal authority,
in carrying out his duties." Houston Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154,
157-58 (Tex. 2016). A proper ultra vires suit
"must allege, and ultimately prove, that the officer
acted without legal authority or failed to perform a purely
ministerial act." Id. at 161 (quoting
Heinrich, 284 S.W.3d at 372).
alleged that Smith, Lockwood, and Wolf acted ultra
vires because the CWD Rules do not require the
Department to inspect breeder deer for disease before denying
a transfer permit, a requirement Peterson finds in Section
43.3591 of the Parks and Wildlife Code. See Tex.
Parks & Wild. Code § 43.3591 ("Genetic
Testing"). We do not reach the merits of that argument
(or consider whether it conflicts with his assertion under
his other claims that the Parks and Wildlife Code does
not provide a hearing), because Smith, Lockwood, and
Wolf are not proper parties to this claim. An ultra
vires suit must be brought "against the
'allegedly responsible government actor in his official
capacity.'" Hall, 508 S.W.3d at 240
(quoting Patel v. Texas Dep't of Licensing &
Regulation, 469 S.W.3d 69, 76 (Tex. 2015)). Smith acted
under his authority as Executive Director in adopting the
emergency rules, but the Department adopted the current CWD
Rules of which Peterson complains under its statutory
authority to regulate the possession, purchase, transfer, and
sale of breeder deer. See 41 Tex. Reg. 5631, 5757
(citing Tex. Parks & Wild. Code § 43.357(b)(1),
(5)). Because Smith, Lockwood, and Wolf did not adopt the CWD
Rules that regulate Peterson's breeder deer, the district
court correctly concluded it lacked jurisdiction over these
claims. See Hall, 508 S.W.3d at 240 (concluding
chancellor of University of Texas not proper party to
ultra vires suit challenging rules adopted by board
concluded that the district court lacked jurisdiction over
Peterson's requested ownership declaration and that
Smith, Lockwood, and Wolf are not proper parties to
Peterson's ultra vires claims. Because these
pleading defects affirmatively negate the existence of
jurisdiction, Peterson is not entitled to an opportunity to
amend. See Miranda, 133 S.W.3d at 227.
consider whether the district court erred by granting the
Department's motion for summary judgment on
Peterson's due process claims and denying Peterson's
review a court's ruling on a motion for summary judgment
de novo. Texas Workforce Comm 'n v. Wichita
County, 548 S.W.3d 489, 492 (Tex. 2018). Summary
judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. Tex.R.Civ.P. 166a(c). "On cross-motions for summary
judgment, each party bears the burden of establishing that it
is entitled to judgment as a matter of law." City of
Richardson v. OncorElec. Delivery Co., 539 S.W.3d252,
259 (Tex. 2018). When, as here, the trial court grants one
motion and denies the other, we "must determine all
questions presented and render the judgment that the trial
court should have rendered." Id.
Peterson's issues will require us to construe the Parks
and Wildlife Code. Statutory construction presents a question
of law that we review de novo. Youngkin v. Hines,
546 S.W.3d 675, 680 (Tex. 2018). Our goal when construing a
statute is to determine and give effect to the
legislature's intent. Id. We rely on the plain
meaning of the statutory text as expressing legislative
intent. Fort Worth Transp. Auth. v. Rodriguez, 547
S.W.3d 830, 838 (Tex. 2018). When analyzing a specific
provision, we "consider the context and framework of the
entire statute and meld its words into a cohesive reflection
of legislative intent." Id. at 839 (quoting
Cadena Comercial USA Corp. v. Texas Alcoholic Beverage
Comm'n, 518 S.W.3d 318, 326 (Tex. 2017)).
"Further, we construe statutory language against the
backdrop of common law, assuming the Legislature is familiar
with common-law traditions and principles." Marino
v. Lenoir, 526 S.W.3d 403, 409 (Tex. 2017). We also may
consider "former statutory provisions, including laws on
the same or similar subjects" and the "consequences
of a particular construction." Tex. Gov't Code
§ 311.023(4), (5).
Texas Constitution provides that no person "shall be
deprived of life, liberty, property, privileges or immunities
. . . except by the due course of the law of the land."
Tex. Const, art. I, § 19. Because the due course of law
guarantee and the federal due process clause are textually
similar, the Texas Supreme Court has "traditionally
followed contemporary federal due process interpretations
ofprocedural due process issues." Honors Acad., Inc.
v. Texas Educ. Agency, 555 S.W.3d 54, 61 (Tex. 2018)
(quoting University of Tex. Med. Sch. v. Than, 901
S.W.2d 926, 929 (Tex. 1995)). A two-part test governs a
procedural due process claim: a court must determine whether
the petitioner possesses "a liberty or property interest
that is entitled to procedural due process protection"
and, if so, "what process is due." Mosley v.
Texas Health & Human Servs. Comm 'n, S.W.3d,,
No. 17-0345, 2019 WL 1977062, at *9 (Tex. May 3, 2019)
(quoting Than, 901 S.W.2d at 929).
interests 'are created and their dimensions are defined
by existing rules or understandings that stem from an
independent source such as state law.'" Honors
Acad., 555 S.W.3d at 61 (quoting Board of Regents of
State Colls, v. Roth, 408 U.S. 564, 577 (1972)). Only
vested rights are constitutionally protected. Id.
"To have a constitutionally protected property interest,
a person must have a 'legitimate claim of
entitlement' rather than a mere 'unilateral
expectation.'" Id. (quoting Roth,
408 U.S. at 577). Put another way, a constitutionally
protected interest is "something more than a mere
expectancy based upon an anticipated continuance of an
existing law." Klumb v. Houston Mun. Emps. Pension
Sys., 458 S.W.3d 1, 15 (Tex. 2015) (quoting City of
Dallas v. Trammell, 101 S.W.2d 1009, 1014 (Tex. 1937)).
Texas Supreme Court has described "the right to own
private property as 'fundamental, natural, inherent,
inalienable, not derived from the legislature and as
preexisting even constitutions.'" Kopplow Dev.,
Inc. v. City of San Antonio, 399 S.W.3d 532, 535 (Tex.
2013) (quoting Eggemeyer v. Eggemeyer, 554 S.W.2d
137, 140 (Tex. 1977)). Property, in legal terms, "does
not refer to a thing but rather to the rights between a
person and a thing." Evanston Ins. Co. v. Legacy of
Life, Inc., 370 S.W.3d 377, 382-83 (Tex. 2012).
"The designation of an object as tangible property means
that it has acquired sufficient rights to be recognized as
property under the law." Id. at 383 (citing
Michael A. Heller, The Tragedy of the Anticommons:
Property in the Transition from Marx to Markets, 111
Harv. L. Rev. 621, 666-67 (1998)). Some of the key components
of the bundle of property rights "include the rights to
possess, use, transfer and exclude others." Id.
(citing Kaiser Aetna v. United States, 444 U.S. 164,
176 (1979); United States v. General Motors Corp.,
323 U.S. 373, 378 (1945)).
whether property rights could arise in an animal depended on
the animal's common law classification. "The common
law divides animals into two groups: animals domitae
naturae or mansuetae naturae-that is, tame or
tamed, domestic animals-and animals ferae
naturae-that is, wild, usually found at liberty."
Union Pac. R.R. v. Nami, 498 S.W.3d 890, 896 (Tex.
2016). The common law of England "based property in
[wild animals] upon the principle of common ownership."
Geerv. Connecticut, 161 U.S. 519, 526(1896),
overruled on other grounds by Hughes v. Oklahoma,
441 U.S. 322 (1979). Private individuals could "reduce a
part of this common property to possession, and thus acquire
a qualified ownership in it," but that right was subject
to government regulation. Id. (citation omitted).
The American states inherited this power with the
understanding that it was "to be exercised, like all
other powers of government, as a trust for the benefit of the
people." Id. at 529. In this conception:
The wild game within a state belongs to the people in their
collective sovereign capacity. It is not the subject of
private ownership, except in so far as the people may elect
to make it so; and they may, if they see fit, absolutely
prohibit the taking of it, or traffic and commerce in it, if
it is deemed necessary for the protection or preservation of
the public good.
Id. (quoting Ex parte Maier, 37 P. 402, 404
(Cal. 1894)). Texas adopted the common law of England as its
rule of decision in 1840. See Act approved Jan. 20,
1840, 4th Cong., R.S., 1839 Repub. Tex. Laws 3,
reprintedin 2 H.P.N. Gammal, Thelaws of Texas,
1822-1897, at 177-78 (Austin, Gammal Book Co., 1898)
(now codified at Tex. Civ. Prac. & Rem. Code §
5.001). Texas courts have consistently treated the public
trust doctrine as forming part of the common law since that
time. See, e.g., State v. Marshall, 13 Tex. 55, 57
(1854) (applying rule that wild animals are generally not
"the subject of property"); Ex parte
Blardone, 115 S.W. 838, 840 (Tex. Crim. App. 1909)
("The authorities are uniform in holding that the
absolute ownership of wild game is vested in the people of
the state and that such is not the subject of private
ownership." (citation omitted)); Coastal Habitat
All. v. Public Util. Comm'n, 294 S.W.3d 276, 287
(Tex. App.-Austin 2009, no pet.) (explaining that "wild
animals belong to the State, and no individual property
rights exist in them as long as they remain wild, unconfined,
and undomesticated"); Hollywood Park Humane Soc. v.
Town of Hollywood Park, 261 S.W.3d 135, 140 (Tex.
App.-San Antonio 2008, no pet.) (explaining that no property
rights exist in wild animals "as long as the animal
remains wild, unconfined, and undomesticated," but
property rights "can arise when an animal is legally
removed from its 'natural liberty' and subjected to
'man's dominion'" (quoting State v.
Bartee, 894 S.W.2d 34, 41 (Tex. App.-San Antonio 1994,
no pet.) and citing Nicholson v. Smith, 986 S.W.2d
54, 60 (Tex. App.-San Antonio 1999, no pet.))). The Texas
Legislature essentially codified this doctrine in 1907 by
enacting a statute providing that "[a]ll the wild
deer" as well as several other types of animals
"found within the borders of this State, shall be and
the same are hereby declared to be the property of the
public." Act of April 19, 1907, 30th Leg., R.S., ch.
144, § 1, 1907 Tex. Gen. Laws 278, 278 (current version
at Tex. Parks & Wild. Code §
1.011(a)). Each subsequent version of the statute
designated wild animals as either "property of the
people of this state" or "property of the
public." Bartee, 894 S.W.2d at 42 & n.10.
The current version provides: "All wild animals,
fur-bearing animals, wild birds, and wild fowl inside the
borders of this state are the property of the people of this
state." Tex. Parks & Wild. Code § 1.011(a).
argues that we should not interpret Section 1.011 as
codifying the public trust doctrine because the United States
Supreme Court allegedly rejected that doctrine as a"
19th-century legal fiction" when it overruled Geer.
See Hughes, 441 U.S. at 3 3 5-3 6. But Peterson ignores
that both Geer and Hughes concerned
challenges to state statutes under the Commerce Clause of the
United States Constitution rather than to the public trust
doctrine generally. See U.S. Const, art. I, §
8, cl. 3. Geer had been convicted under a
Connecticut statute banning export of game animals from the
state and challenged the law as burdening interstate
commerce. Geer, 161 U.S. at 521. The Court upheld
the ban on the ground that "[t]he common ownership [of
wild animals] imports the right to keep the property, if the
sovereign so chooses, always within its jurisdiction for
every purpose." Id. at 530. In Hughes,
the Court overruled Geer and held it would evaluate
state regulations of wildlife under the Commerce Clause
"according to the same general rule applied to state
regulations of other natural resources." 441 U.S. at
335. However, the Court stressed that "[t]he overruling
of Geer does not leave the States powerless to
protect and conserve wild animal life within their
borders." Id. at 338. In the years following,
state courts have held Hughes did not invalidate
their own public trust statutes or constitutional provisions.
See, e.g., People v. Rinehart, 311 P.3d 818, 823
& n.3 (Cal. 2016); Pullen v. Ulmer, 923 P.2d 54,
60 (Alaska 1996); State v. Fertterer, 841 P.2d 467,
470-71 (Mont. 1992), overruled on other grounds, State v.
Gatts, 928 P.2d 114 (Mont. 1996). Persuaded by these
decisions, we conclude Hughes does not affect the
continued validity of the public trust doctrine. See PPL
Mont., LLC v. Montana, 565 U.S. 576, 603-04 (2012)
(remarking "the public trust doctrine remains a matter
of state law" and is not defined by the Constitution).
the public trust doctrine an animal must be "legally
removed" from the wild before property rights can arise
in it. See Bartee, 894 S.W.2d at
41 ("A wrongful reducing to possession of creature
ferae naturae cannot form the basis of
ownership." (quoting 3A C.J.S. Animals, § 8
(1973))). The Legislature has enacted statutes defining
whitetail deer as "game animals" and providing that
"[n]o person may capture, transport, or transplant any
game animal or game bird from the wild in this state"
without a permit from the Department. See Tex. Parks
& Wild. Code § 43.061(a); see also id.
§ 63.001(a) (defining whitetail deer as game animals).
Another statute more generally provides that "[n]o
person may possess a live game animal in this state for any
purpose not authorized by this code." Id.
§ 63.002. In addition, restriction of the movements of
animals by fences (i.e., removing them from their
"natural liberty") does not affect their status as
"property of the people of this state."
Id. § 1.013. Read together, these provisions
prohibit a person from removing whitetail deer from the wild
and holding them in captivity without a permit from the
maintains that his breeder's permit either allows for
ownership rights to arise in breeder deer according to the
common law or actually conveys ownership of breeder
deer. While a breeder's permit
authorizes a person "sell, transfer to another person,
or hold in captivity live breeder deer for the purpose of
propagation or sale," id. § 43.357(a), the
permit statute expressly defines "breeder deer" as
white-tailed or mule deer "legally held under a
permit authorized by this subchapter" id. §
43.351(1) (emphasis added). Nothing in subchapter L makes
breeder deer property of the deer breeder. See generally
id. § § 43.351-.369. Peterson nevertheless
maintains that Sections 43.364 and .366 allow for property
rights to arise in breeder deer according to common law
principles. Section 43.364 states:
Breeder deer may be purchased, sold, transferred, or received
in this state only for the purposes of liberation or holding
for propagation. All breeder deer and increase from breeder
deer are under the full force of the laws of this state
pertaining to deer, and those breeder deer may be held in
captivity for propagation in this state only after ...