Far West Conference Open or Closed Range? What are the Problems and Consequences?

Common Law As a general rule, Texas common law does not impose a duty on owners of domestic animals to prevent their animals from running at large.  Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999) holds that Texas follows the “free” or “open” range rule. Texas Constitution allows legislature to regulate livestock. Article XVI, Section 23

Chapter 143, Texas Agriculture Code Provides a mechanism for referendum elections in county (or part of county) to regulate several classes of domestic animals.  Each class of animals has unique differences in the petition process and ballot language.  Fencing standards may vary by class.  Careful consideration of both the petition language and the ballot style is critical to validity of election, and subsequent enforcement of stock law.

Horses, Mules, Jacks, Jennets, Donkeys, Hogs, Sheep or Goats  To determine if horses, mules, jacks, jennets, donkeys, hogs, sheep or goats shall be permitted to run at large.  Ballot style calls for voting for against “Letting ____ run at large. Takes a vote “Against” to invoke stock law for this class.  Cannot hold another election earlier than one year.  If adopted, fence must meet a “sufficient” standard.  Creates a criminal penalty (Class C) for allowing animals to run at large.  Allows for election to allow hogs to run at large between November 15 and February 15 of following year.

Cattle, Turkeys(certain counties) Provides for election to adopt or reject “stock law” and applies to cattle.  Turkeys in certain counties  Certain counties may not conduct countywide election for cattle.  Ballot calls for voting for or against “Adoption of Stock Law.”  Majority of votes “for” stock law implements provisions to close range.  Fence standard is sufficient if it keeps out other classes of animals not affected by this subchapter. (vague standard)  Class C Misdemeanor

HIGHWAY EXCLUSION Defines highway to include U.S. and State highways, but excludes numbered Farm-to-Market roads.  All counties, Open or Closed, requires owners of domestic live stock to control animals, and not to knowingly permit animals to traverse or roam at large upon a highway.  A person who injures an animal running at large on a highway is not liable for damages, unless grossly negligent in operation of vehicle, or who willfully injures animal.  Herding livestock from point to point is not prohibited.  Class C Misdemeanor for each day stock allowed on highway.

Conflict Between Procedures Thus, there is a conflict in the implementation procedures between the law applicable to Horses, Donkeys, Sheep and goats ( ) and the statute applicable to Cattle ( )  The Horse and Sheep statute requires a vote “against” allowing the animals identified in that statute to run at large.  While the cattle statute requires a vote “for” implementation of the Stock law. As a result, you cannot have a single ballot or election to address both horses and cattle (or a mixing of any of the animals in one statute with the other.

Fence Removal Mutual consent required to remove a fence separating or dividing fence jointly owned, or attached to a fence owned by another person Jointly owned fences require six months notice before withdrawal of a portion of fence Wholly owned fence may require removal of attached fence with six months notice.

Fence Standards: Where Stock Law does not apply, fences must be sufficient:  Person wishing to “Keep out ordinary livestock permitted to run at large” must fence out animals. Case law speaks to animals of “ordinary disposition”, so an animal owner with a known “fence breaker” may be liable for damage done despite a sufficient fence. Where Stock Law does apply, fences must be:  4 feet high  At least three barbed wires, posts no more than 30 feet, with stays between every two posts. (election to require “boards”)  Picket fences not more than 6” apart.  Board fences at least three boards no less than 5” wide and 1” thick.  Rail fences at least four rails.

Culpable Mental State Class C Misdemeanor requires a “knowing” state of mind.  “Knowingly” is defined by Sec of the Texas Penal Code as the state of mind “When he is aware this his conduct is reasonably certain to cause the result.”  To enforce Stock Law requires proof that a person had actual knowledge that fences were down or insufficient, and took little or not action to cure the known deficiency.

County Roads in Open Range County Animals are allowed to roam at large. Property owners are not required to fence county roads. Travelers are obligated to avoid collision with animals. Animals have right of way.

County Roads in Closed Range County A County Road is not part of the property of the cattle’s owner, so while on the County Road, the cattle are running at large. AG Opinion H-795. Stock Law does not specifically require fence, but does require owner to “control” animals from running at large. Liability for “at large” animals on County Road is on property owner, unless driver is grossly negligent or willful. (Excessive speed). County has no authority to require fence, even in a “Closed Range” county. Might consider warning signs on portions of road traversing large open range with cattle- guards but no fences.

Cattle Guards and Gates Texas Transportation Code  Commissioners Court may authorize cattle guards on any county road.  Commissioners “shall” establish plans and specifications.  Non-conforming cattle guards can be penalized.  County may install cattle guards at public expense, but is not required to do so. Most counties require landowner to pay Texas Transportation Code  Gates permitted only on Third Class roads.  At least 10 feet wide, convenient, and at landowners cost.

Election Issues Petitions for different classes of livestock have different requirements. You can have a Single Election, but must have separate ballot issues, and separate questions and votes for each class of animals. Be careful with language on ballot…track statute for each class. A vote “for” stock law is not the same as a vote “against” allowing certain animals to run at large. Voter confusion is likely so be sure to educate voter before election. See Attorney General Opinion GA-0093 for good discussion of election problems.

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