Is Texas Still an Open Range State?
Not really, and assuming it is could cost you a bundle!
By Susan Wagner, The Cattleman, April 2004
One of my cows got out and was hit by a car; am I liable?”
Texas and Southwestern Cattle Raisers Association gets questions like that more frequently than you may think.
Unfortunately, there is no clear-cut answer. It depends on a complicated set of livestock laws that vary from county to county and even to different precincts within a county.
Open range in Texas is rapidly falling victim to exploding population. Between 1990 and 2000, state population increased by 22.76 percent (3,865,310 individuals), for a total of 20,851,820.
As most of these people moved into suburban areas, the tendrils of city limits have spread into previously rural land. Farms and ranches have been subdivided and once quiet rural roads have become crowded with commuters.
These new Texas landowners are changing the results of local elections, including those on stock laws.
Texas range law
“Texas in general still uses open range law for its livestock,” says Texas Attorney General Greg Abbott. “Texas common law does not impose a duty on owners of domestic animals to prevent their animals from running at Iarge.”
However, “Chapter 143 of the Texas Agriculture Code allows a county or portion of a county to decide by local option election whether to prohibit certain classes of livestock from running at large in the locality,” Abbott explains.
“Separate subchapters provide for elections concerning cattle or domestic turkeys (subchapter D), …and horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats (subchapter B).”
The Agriculture Code Prohibits certain counties from conducting countywide elections on running cattle at large. Those counties [Editor’s note: At the time this article was written.] are Andrews, Coke, Culberson, Hardin, Hemphill, Hudspeth, Jasper, Jefferson, Kenedy, Kinney, LaSalIe, Loving, Motley, Newton, Presidio, Roberts, Schleicher, Terry, Tyler, Wharton and Yoakum.
Local stock laws
It’s important for livestock owners to be familiar with the stock laws in their area. Each county clerk should have records but finding them might be a problem.
“Results of local stock law elections are recorded in the minutes of the county commissioners court,” says Judon Fambrough, attorney with the Real Estate Center at Texas A&M University.
“There’s no index,” he says incredulously. “A livestock owner might have to read through decades of minutes to find out if there are any local laws pertaining to his land. Part could be closed range and Part could be open.”
Fambrough thinks there should be a statewide standard for recording and indexing local stock laws in official records. He says deed records would be a logical place.
Whether livestock are in an open- or closed-range jurisdiction determines who has the responsibility for fencing and the potential for liability.
“In a closed-range jurisdiction, the cattlemen must fence in (enclose and restrain) their animals or face liability,” Fambrough explains.
“In an open-range jurisdiction, farmers and other landowners must exclude (fence out) the livestock. Cattlemen face no liability if their cattle are not properly excluded.”
In either of these situations, liability depends on whether a fence is “sufficient” to restrain ordinary livestock permitted to run at large.
The Texas Agriculture Code specifically states that, “In order to be sufficient, a fence must be at least four feet high and comply with the following requirements:
- “A barbed wire fence must consist of three wires on posts not more than 30 feet apart, with one or more stays between every two posts;
- “A picket fence must consist of pickets that are not more than six inches apart;
- “A board fence must consist of three boards not less than five inches wide and one-inch thick; and
- “A rail fence must consist of four rails.”
Texas also has different laws for different kinds of roads. The Agriculture Code states that it is unlawful for a livestock owner to knowingly permit livestock to roam unattended on a U.S. or Texas state highway. Numbered farm-to-market roads are specifically excluded, unless they are in an area covered by a local stock election law.
Violating these provisions is a Class C misdemeanor, punishable by a fine not to exceed $500. There is a separate offense for each day that an animal is permitted to roam.
Note the word, “knowingly;” it’s essential in determining criminal liability.
“The livestock owner must have actual knowledge that the livestock are not fenced in to be in violation of the Agriculture Code provisions,” says Stephen M. Spitzer, an attorney with Cowles & Thompson in Tyler, Texas.
“The fact that the owner should have known that the livestock were out is insufficient to establish a violation. Actual knowledge is required because a criminal penalty is involved as opposed to a civil judgment.”
However, there may be liability in a civil case for property damage and/or personal injury resulting from a motor vehicle collision with livestock. The determining factor is whether the owner has a duty to fence his livestock.
Supreme Court decision
The Texas Supreme Court is very clear on this subject. In their 1999 decision on Gibbs v. Jackson, the Court ruled that a livestock owner has no duty to fence his livestock unless such a duty is created by statute.
In their opinion the Court stated, “With its policy-making authority, the Legislature has considered fence and livestock restraint laws for virtually every type of roadway over which it has jurisdiction.
“It is noteworthy that the Legislature has specifically excluded farm-to-market roads from such regulation. We think it unwise in this instance for the Court to erect barriers that the Legislature has declined to impose.”
The Court also deferred to the right of the citizens within a county to adopt local stock laws.
“Those citizens, who know far more about their roads and livestock than do we, apparently have deemed it unnecessary to adopt such a law for the road [in question]. We decline in this instance to impose upon them a duty which they have declined to self-impose.”
So, a livestock owner might be liable for damages only if the accident occurred on a U.S. or Texas state highway or on a road covered by a local stock election law.
The question then becomes whether the actions of the livestock owner were reasonable under the circumstances, says attorney Steve Spitzer. Some things that might be considered in evaluating what is “reasonable” include:
- When the fence in question was constructed;
- The quality of materials used to construct the fence;
- The steps taken by the livestock owner to periodically inspect, repair and maintain the fence;
- The steps taken by the livestock owner to monitor his livestock to ensure that none had escaped.
Spitzer adds that in cases where livestock owners pasture their stock on land owned by others, the duty to control the livestock usually rests with the owner of the animal, not the owner of the land.
What about injury to the animal? If the livestock owner is not liable, can he collect damages from the driver of the vehicle?
Probably not. The Texas Agriculture Code specifically states that, “A person whose vehicle strikes, kills, injures or damages an unattended animal running at large on a highway is not liable for damages to the animal except as a finding of gross negligence in the operation of the vehicle or willful intent to strike, kill, injure or damage the animal.”
Your best protection
So how can livestock owners minimize their liability? “Your best protection is insurance,” advises TSCRA attorney Ed Small. “Even if you’re right, a lawsuit could cost $50,000.”
And by all means, take action to prevent your livestock from being involved in an accident:
- Assume that your livestock are in a closed-range jurisdiction.
- Inspect, repair and maintain fences on a regular basis.
- Monitor livestock periodically to ensure that none has escaped.
It could save you a bundle!
Open Range is excerpted from the April 2004 issue of The Cattleman magazine. Join today to start your subscription.