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Bailey v. Smith

Court of Appeals of Texas, Third District, Austin

June 28, 2019

Ken Bailey and Bradley Peterson, Appellants
v.
Carter Smith, Executive Director; Clayton Wolf, Wildlife Division Director; Mitch Lockwood, Big Game Program Director; and Texas Parks & Wildlife Department, Appellees

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-l-GN-15-004391, HONORABLE TIM SULAK, JUDGE PRESIDING.

          Before Justices Goodwin, Baker, and Smith

          OPINION

          Edward Smith, Justice.

         This is 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.

         LEGAL AND FACTUAL BACKGROUND

         The 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.[1] 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).

         One of 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).[2] 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 satisfied:

(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).

         On June 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 animals."

         Bailey 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.[3] 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.").

         The 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 claims.

         After 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 judgment.

         The 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 GRANTED.
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.

         This 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 fee award.

         JURISDICTION

         We 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 Wolf.

         Standard of Review and Applicable Law

         A plea 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 (Tex. 2004).

         Sovereign 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)).[4] 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).

         Courts 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).

         Analysis

         Peterson 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 id.

         Having 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 621.

         Peterson 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.[5] 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))).

         Peterson also asserted claims against Smith, Lockwood, and Wolf in their official capacities.[6] 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).

         Peterson 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 of regents).

         We have 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.

         SUMMARY JUDGMENT

         We next 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 cross-motion.[7]

         Standard of Review

         We 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.

         Resolving 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).

         Procedural Due Process

         The 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).

         "Property 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)).

         The 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)).

         Historically, 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)).[8] 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).

         Peterson 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.[9] 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).

         Under the public trust doctrine an animal must be "legally removed" from the wild before property rights can arise in it.[10] 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 Department.

         Peterson 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.[11] 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 ...

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