SHARY PRUSKI, PETITIONER, v. JOSHUA GARCIA, RESPONDENT
No. 18-0953
IN THE SUPREME COURT OF TEXAS
January 31, 2020
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
Argued November 7, 2019
From the time of the Republic of Texas, the default rule in this state has been that livestock owners may allow their animals to run at large.1 Early on, Texas rejected altogether the English common-law duty to keep livestock confined. As this Court observed in 1893:
Neither the courts nor the legislature of this state ha[d] ever recognized the rule of the common law of England which requires every man to restrain his cattle either by tethering or by inclosure. . . . It is the right of every owner of domestic animals in this State, not known to be diseased, vicious, or “breachy,” to allow them to run at large . . . .
Clarendon Land, Inv. & Agency Co. v. McClelland, 23 S.W. 576, 577–78 (Tex. 1893). Rejection of a livestock owner’s English common-law duty to “restrain his cattle” by fencing or otherwise “rendered Texas ‘free-range’ as a general rule.” Gibbs, 990 S.W.2d at 747. As recently as 1999, this Court reaffirmed free-range as Texas’s default rule. See id.
Like all common-law rules, however, Texas’s free-range rule yields to legislative enactments to the contrary. Id. at 748 (describing history of legislative departures from free-range rule). The 1876 Constitution specifically authorized the Legislature to deviate from the free-range rule by passing laws regulating fences and livestock.
The question presented is whether, when a driver on a state highway collides with an escaped bull in a county with a stock law, the standard of tort liability for
The plaintiff does not contend he can demonstratе the defendant violated section 143.102’s liability standard. We therefore reverse in part the judgment of the court of appeals and reinstate summary judgment for the defendant on all claims.
I. Factual and Procedural Background
On the evening of December 5, 2015, Joshua Garcia was driving his pickup truck on State Highway 123 in Wilson County. A bull owned by Shary Pruski escaped its fenced enclosure and wandered onto Highway 123. Garcia’s truck struck the bull, killing the bull, wrecking Garcia’s truck, and injuring Garcia. After the accident, it was disсovered that a latch to the gate of the fenced pasture had broken, allowing the bull to escape and wander onto the highway.
Garcia sued Pruski. He alleged Pruski negligently failed to keep the bull within a fenced area on his property and negligently failed to prevent the bull from wandering onto a state highway, in violation of chapter 143 of the Agriculture Code. The trial court granted summary judgment for Pruski on all claims. On appeal, Garciа did not contend Pruski owed him a common-law duty to keep his cattle fenced. See Gibbs, 990 S.W.2d at 747–50 (holding that no such duty exists at common law and that any liability for failure to fence livestock arises from statute). Instead, Garcia argued that Pruski could be liable in tort for violation of statutory duties arising from two separate sections of chapter 143. The first is section 143.102. As described above, section 143.102 provides that a livestock owner “may not knowingly permit [a horse, mule, donkеy, cow, bull, steer, hog, sheep, or goat] to traverse or roam at large, unattended, on the right-of-way of a highway.”
The second source of Pruski’s alleged tort duty is section 143.074, which is found in subchapter D of chapter 143 and is part of the legislative scheme governing county stock laws. Certain counties may, through countywide election, adopt a local stock
The court of appeals affirmed summary judgment on all claims related to Pruski’s alleged violation of section 143.102, the highway statute. 563 S.W.3d 333, 344 (Tex. App.—San Antoniо 2018, pet. granted). The court held that Garcia failed to raise a genuine issue of material fact on whether Pruski “knowingly” permitted his bull to roam at large in violation of section 143.102. Id. In this Court, Garcia does not challenge this aspect of the court of appeals’ decision. However, the court of appeals also decided Garcia had raised a genuine fact issue concerning whether Pruski violated the stock-law duty. That duty, the court held, flows from section 143.074 and “may be breached by evidence showing the person was at fault in allowing any mentioned animal to run at large.” Id. (emphasis added).
The court of appeals rejected Pruski’s argument that the highway statute and the stock law statute impose conflicting duties. Id. at 339–41. The court concluded that “section 143.102 operates independently from, and in addition to, chapter 143’s stock law provisions.” Id. at 341. It further reasoned that it would be absurd to interpret the statutes such that “the statutory duty a bull-owner owes would change bаsed on where the bull was standing at the time of the accident.” Id. In the court of appeals’ view, section 143.102’s “knowingly” standard applies on highways throughout the state, but counties are free within their borders to lower the threshold for livestock-owner liability, even on U.S. and state highways, by passing a stock law.
II. Analysis
A. Standard of Review
The disposition of this case turns on the meaning of chapter 143 of the Agriculture Code, which is a legal question reviewed de novo. See, e.g., Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). We must apply statutes “as written” and “rеfrain from rewriting text that lawmakers chose.” Id. at 443. “The text is the alpha and the omega of the interpretive process,” BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017), and the statute’s words and phrases must “be read in context and construed according to the rules of grammar and common usage.”
B. Penal Statutes as a Source of Civil-Liability Standards
Both the highway statute and the stock law statute impоse legal duties on livestock owners. The Legislature stated none of these duties as civil liability standards,
Neither party addresses whether the statutes by which Garcia seeks to impose civil liability on Pruski “create an appropriate standard of care for civil liability purposes.” Smith, 940 S.W.2d at 607. Both the parties and the court of appeals assumed that a violation of either statute gives rise to a tort action. Multiple courts of appeal have used these two provisions of chapter 143 to hold livestock owners civilly liable if their animals stray onto highways or areas covered by a local stock law. See, e.g., Weaver v. Brink, 613 S.W.2d 581, 583–84 (Tex. App.—Waco 1981, writ ref’d n.r.e.); Hanna v. Wright, 504 S.W.2d 779, 781–83 (Tex. App.—Tyler 1974, no writ). In Gibbs v. Jackson, we observed that “Texas courts have relied upon these two statutes, or their predecessors, to hold or assume that livestock owners may be liable for negligence if their animals stray onto highways.” Gibbs, 990 S.W.2d at 749. Gibbs did not “accept or reject the criminal statutes” as a source of civil liability or make any holding about the contours of the civil-liability rules that arise from these two statutes. For present purposes, we will assume, as the parties do, that both section 143.102 and section 143.074 “create an appropriate standard of care for civil liability purposes” and that civil liability may therefore be imрosed for their violation.
C. The Conflict between the Standards
Pruski’s primary argument is that the standard of civil liability for highway accidents that arises from section 143.102 conflicts with the standard of liability imposed on him by the court of appeals under the stock law statute. In order to determine whether the two standards conflict, we first attempt to identify what the two standards are.
The parties do not dispute the contours of civil liability under section 143.102. The statute provides that a livestock owner “may not knowingly permit [a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat] to traverse or roam at large, unattended, on the right-of-way of a highway.”
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to cirсumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result.
The parties disagree on the standard of civil liability under the stock law statute. Section 143.074, on which Garcia relies, provides that once a stock law is adopted “a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held.”
The parties disagree about what it means for a livestock owner to “permit” his animals to “run at large.” The word “permit” usually connotes awareness or assent, as opposed to mere oversight or negligence. See, e.g., Permit, BLACK’S LAW DICTIONARY (11th ed. 2019) (“To consent to formally; to allow (something) to happen”); Permit, Oxford American English Dictionary and Thesaurus (2009) (“officially allow someone to do something”). In Rose v. Ben C. Hebert Heirs, the Ninth Court of Appeals interpreted the stock law statute’s use of “permit” to impose a liability standard more demanding than simple negligence. 305 S.W.3d 874, 880–81 (Tex. App.—Beaumont 2010, no pet.) (interpreting “permit” as “to consent to expressly or formally,” or “to give leave”); see also Dearbonne v. Courville No. 09-16-00440-CV, 2018 WL 4354310, at *8 (Tex. App.—Beaumont Sept. 13, 2018, no pet.) (applying same understanding of “permit”). Although it cited the Ninth Court’s understanding of “permit” favorably, the Seventh Court suggested that a failure to exercise reasonable care could be enough to support civil liability under the stock law statute. Rodriguez v. Sandhill Cattle Co., L.P., 427 S.W.3d 507, 510 (Tex. App.—Amarillo 2014, no pet.). However “permit” is understood, it bears noting that the duty imposed by section 143.074 is not to prevent all escapes of fenced animals. Rather, the duty is to not “permit” animals “to roam or run at large.” Historically, to roam or run at large has meant more than temporary escape. Instead, it refers to animals allowed as a matter of course to graze and move about freely in an unconfined area. See, e.g., Clarendon, 23 S.W. at 577 (explaining that it is the livestock owner’s right in Texas to permit his animals to run at large “either upon the open range” or on someone else’s unenclosed land); Gunter v. Cobb, 17 S.W. 848, 850 (Tex. 1891) (holding that the cattle in question were “running at large in a range” and that “[t]he purpose of the statute was to avoid such inconvenience and expense аs would be incurred in gathering and taking care of stock scattered and accustomed to run free”).
The court of appeals focused only on whether the two statutes are irreconcilable “facially.” 563 S.W.3d at 340. True, the statutes do not conflict on their faсe. The court of appeals correctly observed that “a person may violate both” and that section 143.102 can “operate independently from, and in addition to, chapter 143’s stock law provision.” Id. at 341. But Pruski’s argument is not that the statutes themselves conflict facially such that they can never coexist. His argument is that, when the statutes are converted into rules of civil liability, they conflict as applied to his case. He is right. When a driver collides with an escaped bull on a state highway in a county with a stock law, the two statutes give rise to two irreconcilable standards of civil liability for the livestock owner. The Legislature has decided that section 143.102’s highway liability rules, including its “knowingly” mental state, “prevail[] to the extent of any conflict with another provision of this chapter,” which includes the stock law statutes.
Garcia argues that a county may expand protections for highway drivers without conflicting with the baseline protections contained in state law. It is true that, if section 143.102 merely protected drivers from ranchers who knowingly permit their bulls to roam at large, then stock laws affording even greater protеction to drivers might not conflict with it. Cf., e.g., LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986) (explaining that states are free to provide additional rights and protections that are not afforded under federal law). But section 143.102 also protects ranchers, by shielding them from liability for highway accidents unless the plaintiff can prove knowing permission. A local stock law that has the effect of denying landowners this heightened liability protection plainly conflicts with the statute affording the protection.
The history of section 143.102 and its statutory predecessors confirms this conclusion.2 In 1935, the Legislature enacted the original predecessor to section 143.102, which prohibited livestock owners from permitting their animals to traverse or roam unattended on the right-of-way of a highway that had fences on both sides. See Act of May 8, 1935, 44th Leg., R.S., ch. 186, § 1, 1935 Tex. Gen. Laws 467, 467. In
Even more notably, the 1959 amendment also added what is now section 143.103, which addresses the opposite situation: when liability will attach fоr drivers who “strike[], kill[], injure[], or damage[] an unattended animal running at large on a highway.”
Finally, the court of appeals reasoned, and Garcia argues, that it would be “absurd” to interpret chapter 143 such that “the statutory duty a bull owner owes would сhange based on where the bull was standing at the time of the accident.” 563 S.W.3d at 341. But in counties without stock laws, the duty owed by a bull owner always depends on where the bull is standing: There is a duty not to knowingly permit the bull to roam on a highway right-of-way, and there is no duty when the bull is anywhere else. See Gibbs, 990 S.W.2d at 750 (declining to impose any general duty to restrain livestock in counties without stock laws). In addition, the corresponding duty owed by a driver to the livestock owner varies based on where the bull is stаnding: Section 143.102 requires a heightened culpable mental state for driver liability on highways, but if the bull is not on a highway, the driver does not have that protection. Far from absurd, rules conditioning a livestock owner’s legal duty on his animal’s location enjoy a provenance far more venerable than most modern statutes:
Under the English common law inherited by the United States, an owner of a domestic animal had a duty to prevent
the animal from trespassing onto a neighbor’s land, but had no duty to prevent the animal from straying onto a public roadway, unless the owner had prior knowledge that the animal had vicious propensities.
Gibbs, 990 S.W.2d at 747 & n.1 (citing Cox v. Burbidge, 13 C.B. (N.S.) 430, 438–39 (Eng. C.P. 1863); Heath’s Garage, Ltd. v. Hodges, [1916] 2 K.B. 370, 375–84 (Eng. C.A.); SALMOND, SALMOND ON THE LAW OF TORTS § 135, at 479 (W.T.S. Stallybrass, 7th ed. 1928)). Thus, under English common law, the landowner’s duty depended entirely on the animal’s location. Indeed, the English duty was reduced when the animal was on a public roadway, just as Pruski contends his duty is reduced on a U.S. or state highway. Neither the Justices of the King’s Bench nor the Texas Legislature seem to hаve thought this arrangement absurd. Nor do we.
III. Conclusion
For the foregoing reasons, section 143.102 of the Agriculture Code provides the only potentially applicable standard of civil liability for Garcia’s claims against Pruski. The court of appeals ruled that Garcia failed to raise a genuine issue of material fact as to whether Pruski violated that standard, and Garcia does not challenge that decision in this Court. The judgment of the court of appeals is reversed in part, and summary judgment for the defendant is reinstated on all claims.
James D. Blacklock
Justice
OPINION DELIVERED: January 31, 2020