Was It Theft or a Misunderstanding?
Two law enforcement professionals have a conversation about what is a criminal action and what is a civil case — and how to avoid both.
By Ellen H. Brisendine
Every day, Larry Gray or one of the 30 special rangers at Texas and Southwestern Cattle Raisers Association (TSCRA) gets a call from a landowner who wants someone arrested.
If the caller is reporting a crime, the TSCRA special rangers can be of assistance. If the caller is reporting a nuisance, misunderstanding or dispute, it’s a civil matter many times, and that places the problem outside the purview of the special rangers and outside the jurisdiction of the sheriff’s office.
Gray, TSCRA director of law enforcement and theft prevention, and Heath Hemphill, Coleman County District Attorney and TSCRA director, compare notes on common criminal/civil questions they face and share some thoughts on how ranchers can stay out of trouble. They point out that these are general examples of the variety of questions they are asked. This is the first in a 2-part series on common criminal and civil actions. Look for part 2 of their conversation in the June issue of The Cattleman.
Criminal cases break laws, civil cases break relationships
“A criminal case is when you have a violation of the penal code or one of the other administrative codes,” Hemphill explains. “The victim is the state of Texas because you have broken its law, or the victim is an individual to whom you have caused harm.”
You have to prove “intent” to have a criminal offense, Gray says. “There has to be proof that the thief had the intent to steal or someone had the intent to cause harm.”
Hemphill says that for the purposes of this article, “We’re talking about theft or misappropriating somebody’s property, whether it be land, trailers or livestock. To prove those kinds of misappropriations, you have to prove that the person who misappropriated that property did so with the intent to deprive the other person of that property.”
A civil case is usually between 2 parties, Hemphill says. These cases can be difficult. “Civil cases are usually over ownership,” he explains. Disputes over fence placement along property lines, disputes over ownership of livestock in partnership agreements and disputes over which group of lessees has the right to the leased land at certain times of the year are broad examples of civil cases.
Hemphill groups common complaints and issues into these categories — obviously criminal, such as pure, old-fashioned cattle theft; obviously civil; and cases that could go either way depending on the circumstances.
He and Gray agree the solution to most cattle-related disputes is to brand your animals and have written business agreements. Gray says branding your livestock is also the best way to significantly deter pure, old-fashioned livestock theft.
Trespass or encroachment can be civil or criminal, depending on intent
If you’ve taken steps to provide proper notice that your land is private, and no trespassing is allowed, then “somebody can be criminally responsible for trespass on your land,” Hemphill says. “A fence is proper notice that they can’t be there, as are purple paint marks on fence posts or trees, and a locked gate.”
An example of a civil trespass is when a fence is built in the wrong place. Either the person having the fence built didn’t have a clear knowledge of his or her property lines, or chose to put it in the wrong place.
“That’s a civil issue between 2 parties,” Hemphill says, “which is better dealt with by lawyers and surveyors, but the aggrieved person wants somebody to come ‘arrest this guy for stealing my land.’”
Hemphill says that for this encroachment to be criminal, you have to prove there was “intent to have a criminal theft. It’s hard to prove intent to steal your land based on moving a fence over.”
Hindering a secured creditor can become a criminal case
When the bank lends a borrower the money to purchase a set of cows, the bank becomes a ‘secured creditor’ to that borrower. Hemphill and Gray say it’s often customary for the borrower to sell the calves from those cows and repay the loan. The cows, and possibly their calves, are collateral and belong to the secured creditor until the loan is repaid.
So what happens if 1 or more cows are not productive and are culled and sold?
“Without notifying the banker, and depending on what the written agreement states, you very well may have a case of ‘hindering a secured creditor,’” Hemphill says. “This can be a felony depending on the number of cattle the borrower sold.”
On the simplest level, the borrower “impeded the collateral or clouded the title on that collateral and that could be very simply, very commonly, a civil dispute. But it could also be criminal if their intent was to hinder those creditors by removing that collateral,” Hemphill says.
Gray says that when the special rangers are contacted about possible cases of hindering a secured creditor, “much of the case is determined by the way the bank drafted that note when they loaned that money. Many banks will stipulate that any and all of the cattle and the offspring of the cattle are collateral when they secure that note.
“We encourage all the bankers to be specific in the language of those notes and to not leave any detail open to interpretation,” Gray says.
As pointed out earlier, intent determines if the action is a crime. Gray explains, “If you follow the money and find out what they spent that money on fairly soon after the sale of those cattle, you may uncover intent to steal.”
Hemphill agrees and says many times these cases are left to the grand jury to decide. “Your grand jury has to infer intent. Did the borrower take the check for the sale of those cull cattle, go pay down the note and then go out and buy a new trailer? Or did he take the whole check and go buy a brand new Suburban? The answers to those types of questions tell you the intent.”
Lease has expired but the lessee won’t go
Sometimes landlords have tenants who don’t know, don’t remember or ignore the fact that their lease has expired. “It’s rarely ever criminal, but it’s kind of like a landlord who has an apartment and the tenant won’t move out,” Hemphill says.
“Maybe a hunting group shows up with their buddies on Sept. 15 for a dove hunt, but their lease expired on Aug. 31. Maybe someone has a grass lease that has expired,” he says, “but they still have 20 pair in the pasture. We get calls from landowners who want these types of people arrested because they are ‘trespassing on my property,’ the lessor says.”
Meanwhile, the lessee is positive the lease ended at a later date. When Gray and Hemphill ask for a copy of the lease, they often find there’s no written agreement. “We hear, ‘Oh, we don’t have one of those. We have just kind of always been operating on a handshake,’” Gray says and adds, “One side thought this, the other side thought that. A clearly written agreement will help you avoid this civil case.”
Two lessees, 1 pasture
Another common civil case is the situation of overlapping lessees. Sometimes those who lease hunting and grazing rights find themselves on the same piece of your land at the same time — and both say the other is not supposed to be there.
“Unfortunately, again, many times no one has a written agreement and they want the sheriff’s deputy to arrest one or the other for being where they’re not supposed to be. Usually, that’s a purely civil issue between those parties and that needs to be spelled out in an agreement,” Hemphill says.
The classic hot check is a crime, a stopped payment can be civil
This classic hot check scenario is a crime — a buyer hands a merchant a check and the merchant hands the buyer a piece of merchandise, then the check bounces when the merchant tries to cash it. “That is a true hot check,” Hemphill says.
“But we have instances where somebody writes the seller a check for a gelding. The buyer goes home that afternoon, saddles the gelding and is bucked off. The buyer stops payment on that check and wants to return the horse.” Hemphill explains that this scenario may be a “warranty of fitness” issue and not a classic hot check case.
A similar situation is when a buyer pays for a vehicle or a trailer by check and then finds the equipment doesn’t work as the buyer thinks it should. When the buyer stops payment on the check, the seller may think he’s been the victim of theft and may want the buyer arrested.
“Well,” Hemphill says, “this is not a clear case.” It is a good idea for the buyer and the seller to have a clear, written agreement for the transaction, including warranties of fitness of the equipment, livestock or anything being bought and sold.
Transfer of papers on livestock or equipment
A related scenario is the transfer of registration papers on livestock or the title to equipment. Hemphill outlines a common set of circumstances that almost always add up to a civil case. “A guy buys a horse and the seller says he will transfer the registration papers ‘next week.’ A week, a month, or even longer goes by, and the buyer hasn’t gotten the papers, which was part of the deal and why he paid so much for the horse.”
Gray adds, “At this point, the buyer wants the special ranger or the sheriff’s deputy to crack down on the buyer and find out why the papers haven’t been sent.” “Even though the buyer didn’t fulfill his side of the deal,” Hemphill says, “this is not a criminal case. This is a civil case.”
Neither the sheriff’s office nor the special rangers are allowed to use their position to pressure someone into keeping their word in a business transaction. Gray says this is known as “official repression” and it is considered a crime when done by law enforcement personnel.
Buyers should have agreements in writing and should complete the transaction at the time of leaving with the livestock or equipment.
“There is nothing to arrest somebody for when they fail to provide the proper papers or documentation, whether it be for equipment or livestock,” Hemphill says.
Trespassing by livestock on open range or closed range
In open range areas, landowners have a duty to fence livestock off of their property.
In closed range areas, landowners have a duty to fence livestock on their property.
Gray and Hemphill urge landowners to check with their county clerk’s office to learn the local open- or closed-range status, and to learn if the status applies to all species of livestock. In some counties, the range can be open to sheep and goats but closed to cattle.
Regardless of the range status, if someone else’s livestock is on your land, the first step is to call the sheriff and start the estray process. Hemphill says, “If you have strays that you can’t handle or don’t want them using your forage, you can have them moved to the local sale barn where they will be fed and watered until the estray process is complete.” The expense for sheltering the estray livestock at the sale barn will be paid by the owner or will be recouped from the sale of the livestock if they are not claimed by the owner.
“Everybody’s definition of animal cruelty is different depending on where you grew up,” Hemphill says. “It is not uncommon for us to get calls to arrest a person who ‘left their horse to starve in a field.’ In one case we found the ‘starving’ horse was actually a prized, but elderly, retired barrel racer that was receiving good care.”
Hemphill, Gray and the special rangers understand family favorites and recognize the effects of age on livestock, “but not everybody from the city driving the road sees it the same way,” Hemphill says.
Hemphill says they rely on veterinarians to provide an opinion or health records to show whether care has been provided to the animals. “I think we’re going to see a lot more of this as Texas’ population continues to change,” Hemphill says.
Is the handshake agreement a myth?
Were the old handshake deals real or are they a myth of the romance of ranching? Hemphill says, “Everybody is always presumed to be honorable gentlemen and ladies who are going to do the right thing. That’s not always the case. Unfortunately, there are still some snakes out there behind the back of the barn, watching for an opportunity to run off with something. But if people brand their cattle and have written agreements as to their business intentions, that will eliminate most of the problems. You have to be diligent and prudent in your business.”
Gray agrees, saying, “If it’s a criminal matter, the TSCRA special rangers can pursue the case. If the district attorney says it’s a civil matter, we can’t help. Unfortunately, bad management and bad business practices aren’t criminal offenses.”
“Civil vs. Criminal” is excerpted from the March 2017 issue of The Cattleman magazine.