Where’s the Written Agreement?
Two law enforcement professionals explain that well-written agreements and documentation can determine whether a case is criminal or civil.
By Ellen H. Brisendine
“If people brand their cattle, and have written agreements as to their intentions when they do business, then most criminal and civil problems would be eliminated,” says Heath Hemphill, Coleman County District Attorney. Larry Gray, Texas and Southwestern Cattle Raisers Association (TSCRA) director of law enforcement and theft prevention, agrees.
In cases of agricultural crime, the TSCRA special rangers can be of assistance. If the caller is reporting a nuisance, misunderstanding or dispute, many times it’s a civil matter, and that places the problem outside the purview of the special rangers and outside the jurisdiction of the sheriff’s office.
Hemphill, a director of TSCRA, and Gray compare notes on common disputes they see and share their thoughts on how ranchers can stay out of trouble.
This is the second in a 2-part series on common criminal and civil actions. Look for part 1, “Was It Theft or a Misunderstanding?” in the March issue of The Cattleman, or TSCRA members may find the article online by logging into Member Center at tscra.org, and navigating to the TSCRA Resources page. Click on Theft and Law to find the article.
Criminal cases break laws, civil cases break relationships
This point was in the March article and it bears repeating. “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.
A common area of dispute is in lease-to-purchase arrangements. A buyer takes an agreed upon number of bred cows, making partial payment up front. Final payment is to be made when the calves are sold, or final payment could entail sending calves back to the seller.
Hemphill says, “In cases where none of these details are written out, one or the other party often wants a special ranger or deputy out there claiming the other party stole cattle.”
Meanwhile, the accused thief explains the agreement from his or her memory and understanding.
“The truth is usually somewhere in the middle, but once again there’s usually not a written agreement and they want somebody arrested. This is normally a civil issue because there was no intent to steal. Somebody just didn’t have their agreement right,” Hemphill says.
Gray says he often takes calls from members who have issues with how cattle are handled when a family estate is settled. “Maybe the executor of the will is selling off some the cattle and some of the other family members don’t want them sold. They want us to do something about it,” Gray says.
Hemphill says, “That goes back to the written agreement. If they have a will, which you hope they do, that executor has a duty to do what that will says. If the will addressed that issue and they’re carrying out what they’re supposed to do, then it gets to be pretty black and white. But it gets ugly when the will is vague or, even worse, when there is no will.”
Gray advises the family members to “go back to the judge who probated the will. You may have a contempt case, but probably not a criminal case.”
Hemphill agrees, saying, “If you have a violation of that will, depending on what was in there, you may have a contempt case. You may have to have a property hearing within that probate estate to decide the issue or send it to district court to contest the will. Usually that doesn’t happen, but if you have a large estate with a lot of cattle or horses you could end up in will contest.”
Settling an estate does not always mean everyone is happy. Gray hears from family members who are mad at each other and both think the other has encroached upon the boundary line of the property they inherited.
“They want a deputy out there,” Gray says, “but there’s not one thing a deputy can do to fix the problem of where the property line was supposed to be. That’s for the landowner and his or her attorneys and surveyors to determine.” Anger and threats of bodily injury are not workable solutions. Gray says the only service a deputy can provide is to help everyone become calm and send them to town to rehash their agreement with their attorneys.”
What happens when your uphill neighbor chooses to divert and keep the rainfall runoff that used to flow downhill into your stock tank?
At first thought, you may think the uphill neighbor is stealing your water. Hemphill says, “That water doesn’t actually belong to the downhill neighbor, but he or she wants somebody arrested and taken to jail for building a diversion, or building a new tank, or building a ditch that diverts water. There may be civil remedies for the diversion of water, but it’s not a criminal matter.
“As the population of this state grows, and water becomes a more important commodity, we are going to see more cases like this, but it’s always going to be civil. This issue gets more people hot and bothered than anything else. They want something immediately done, they want that guy arrested, they want cops to get in it and act right now. But we can’t prosecute him criminally for stealing water that was never yours,” Hemphill explains.
Easement holder with bad manners
Another common complaint, Gray says, has to do with an easement holder who has the bad manners to leave the gate open. “The easement holder has the right to egress or regress. But when he does and doesn’t close the gate, the cattle get out,” Gray says he often hears.
Hemphill agrees and understands why the rancher might want the easement holder arrested. “I don’t blame them. I’d want them arrested too. But it really is a suit for damages in small claims court. Or the rancher can attempt to file suit and reform that easement to make the easement holder install a cattle guard or do whatever is deemed necessary to solve the problem.”
Livestock not as advertised
Selling livestock that don’t live up to the claim may be a criminal case of fraud with the right documentation. For example, Gray says, “We often hear from buyers who bought a horse that was guaranteed sound and then found the horse to be crippled. The seller wouldn’t refund the money or replace the horse.” Another similar scenario is when a buyer finds that the set of bred heifers he or she bought were actually open.
Hemphill says that in these cases, the buyer wants the seller charged with fraud. Hemphill says that under the right circumstances “you might have a case. But you’re going to have to produce the evidence where I can prove beyond a reasonable doubt that this person has intended to commit fraud, because that’s the standard in a criminal case.
“But it’s pretty hard to document that a guy sold me these 20 heifers that were supposed to be bred and he intended to fraud me. You go find 3 other mad people that he did the same thing to, then you probably have yourself something we could work with. But otherwise, it’s hard to prove that intent.”
Horse trainer sells horse, keeps proceeds
Another common case, Gray and Hemphill say, deals with agreements between horse owners and horse trainers. Gray says he often answers calls from ranchers saying, “I made a deal with a trainer to train a horse for 90 days and gave him permission to sell the horse and then split any profits.” The trainer sold the horse and never paid the owner.
Hemphill says, “The trainer’s take on it was, ‘I had to ride him for 6 months before I could get him sold.’ By the time he had trained and sold the horse, the horse had eaten twice as much feed and there wasn’t any money left over.
“Both the owner and the trainer may be right and both of them are mad at each other, but they didn’t sit down and put this thing in writing. You’re going to have to show us what your intent and real agreements were. What you just said is a perfect example of where they both may be right, but they are dang-sure both mad. This is a very gray area and it is hard to make a criminal case in this scenario,” Hemphill says.
Good business practices
“It’s always fair to get both sides of the story,” Hemphill says, “because usually you learn that the truth is somewhere in between.”
“Bad management and bad business practices aren’t criminal offenses,” Gray says. Hemphill agrees and adds, “No one should take offense if one or the other party expects a well-written agreement and documentation. That’s just business, and if that offends somebody, they haven’t done enough business.” ❚
“Written Agreement” is excerpted from the June 2017 issue of The Cattleman magazine.