Bailey v. Smith

Decision Date28 June 2019
Docket NumberNO. 03-17-00703-CV,03-17-00703-CV
Parties Ken BAILEY and Bradley Peterson, Appellants v. Carter SMITH, Executive Director; Clayton Wolf, Wildlife Division Director; Mitch Lockwood, Big Game Program Director; and Texas Parks & Wildlife Department, Appellees
CourtTexas Court of Appeals

Edward Smith, Justice This is a dispute between commercial deer breeders and the Texas Parks and Wildlife Department (the Department) over the ownership of captive-bred whitetail deer. Ken Bailey and Bradley Peterson each hold a deer breeder's permit issued by the Department authorizing them "to possess live breeder deer in captivity" and to "engage in the business of breeding breeder deer." See Tex. Parks & Wild. Code §§ 43.352(a), .357(a)(1). Peterson and Bailey sued the Department and several of its officials to establish that breeder deer are or became private property and to invalidate Department rules requiring breeders to test for chronic wasting disease

. The Department responded that breeder deer are wild animals and therefore "property of the people of this state." See id. § 1.011(a). The district court granted the Department's partial plea to the jurisdiction and motion for summary judgment, denied Peterson's cross-motion, and awarded the Department its attorneys' fees. For the reasons that follow, we will affirm.


The Department is broadly responsible for administering the laws related to wildlife and "for protecting the state's fish and wildlife resources." See id. §§ 12.001(a), .0011(a). In addition to granting the Department broad enforcement powers to carry out this task, see id. §§ 12.102–.105, the Legislature has authorized the Department to grant certain licenses and permits to assist with managing the state's resources. See generally id. §§ 43.021–.955 ("Special Licenses and Permits"). Subchapter L concerns the deer breeder's permit, which authorizes a person to "possess live breeder deer in captivity." Id. § 43.352(a) ; see generally id. §§ 43.351–.369 ("Deer Breeder's Permit"). Specifically, the permit authorizes a person to "engage in the business of breeding breeder deer in the immediate locality for which the permit was issued" and to "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale." Id. § 43.357(a)(1)(2). These rights are subject to the Department's authority to adopt rules concerning "the possession of breeder deer" and the "procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer," among other subjects. See id. § 43.357(b)(1), (5). Furthermore, moving breeder deer into or out of a facility requires a separate transfer permit issued by the Department.1 Id. § 43.362(b) (providing, with exceptions not relevant here, that "no person may purchase, obtain, sell, transfer, or accept in this state a live breeder deer unless the person obtains a transfer permit"). "Only breeder deer that are in a healthy condition may be ... transferred." Id. § 43.362(a).

One of the more serious health threats to deer is chronic wasting disease

(CWD), a progressive neurodegenerative disease that affects cervid species, including deer, elk, reindeer, and moose. Chronic Wasting Disease , Centers for Disease Control and Prevention, (last visited June 24, 2019). Symptoms include "drastic weight loss (wasting), stumbling, listlessness and other neurologic symptoms." Id. "CWD is fatal to animals and there are no treatments or vaccines." Id. To address the risk of CWD, the Department adopted a rule requiring deer breeders to test their herds for CWD as a prerequisite to applying for a transfer permit. See generally 31 Tex. Admin. Code § 65.604 (2018) (Tex. Parks and Wild. Dep't, Disease Monitoring).2 Rule 65.604 prohibits any person from removing deer from a breeder facility that is not "movement qualified" or introducing deer from an unqualified facility without express permission from the Department. See

id. § 65.604(a)(c). A facility "is movement qualified if no CWD test results of ‘detected’ have been returned from an accredited test facility for breeder deer submitted from the facility" and one of three criteria is satisfied:

(1) the facility is certified by the Texas Animal Health Commission (TAHC) as having a CWD Monitored Herd Status of Level A or higher;
(2) less than five eligible breeder deer mortalities have occurred within the facility as of May 23, 2006; or
(3) CWD test results of ‘not detected’ have been returned from an accredited test facility on a minimum of 20% of all eligible breeder deer mortalities occurring within the facility as May 23, 2006.

Id. § 65.604(d). A movement-qualified facility loses that status if it does not meet the requirements of Subsection (d) "by March 31 of any year." Id. § 65.604(f).

On June 30, 2015, the Department confirmed the first positive test for CWD in Texas captive deer. Subsequent testing found several other infected deer in the same facility. Soon afterwards, the Department's executive director, Carter Smith, promulgated emergency rules significantly increasing the testing necessary to acquire movement-qualified status. See 40 Tex. Reg. 5549, 5566–5570 (2015) (emerg. rule 31 Tex. Admin. Code §§ 65.90 – .99 ), subsequently proposed by 41 Tex. Reg. 2817, 2853, adopted by 41 Tex. Reg. 5631, 5726 (codified as amended at 31 Tex. Admin. Code §§ 65.90 – .99 ). Further, the new rules provided that "no live breeder deer may be transferred anywhere for any reason" except as provided in the new rules. See 40 Tex. Reg. at 5568–69. The preface to the emergency rules stated these steps were necessary because up to 30% of Texas deer breeder facilities were potentially exposed to the disease but the manner in which the disease entered that facility was still unknown. Id. at 5566. Smith acted in part under his authority to adopt emergency rules to address "an immediate danger to a species authorized to be regulated by the department." Tex. Parks & Wild. Code § 12.027. The order also states the Department is authorized to regulate whitetail deer in captivity as "game animals."

Bailey and Peterson sued the Department seeking declaratory relief invalidating the emergency rules or, in the alternative, certain provisions of the Parks and Wildlife Code. First, they sought a declaration under the Uniform Declaratory Judgment Act (UDJA) that captive-bred deer are private property rather than wild animals. See Tex. Civ. Prac. & Rem. Code § 37.004(a) (authorizing a person to "whose rights, status, or other legal relations are affected by a statute" to "obtain a declaration of rights, status, or other legal relations thereunder"). Based on that ownership, they next sought a declaration under the Administrative Procedures Act (APA) that the emergency rules violated procedural due process.3 See Tex. Gov't Code § 2001.038(a) (authorizing declaratory judgment challenging "[t]he validity of applicability of a rule ... if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff"). As an alternative to the rules challenge, Bailey and Peterson asked the district court to declare (under the UDJA) that various parts of the Parks and Wildlife Code are unconstitutional as applied to them for violating procedural due process. Bailey and Peterson also sued Smith, Big Game Program Director Mitch Lockwood, and Wildlife Division Director Clayton Wolf alleging they acted ultra vires by adopting or being involved in the adoption of the emergency rules. Finally, Bailey and Peterson prayed for an award of attorney's fees as allowed by the UDJA. See Tex. Civ. Prac. & Rem. Code § 37.009 ("In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.").

The Department filed an answer and a plea to the jurisdiction asserting sovereign immunity. In its answer, the Department prayed for an award of attorney's fees for defending against the UDJA claims. The Department subsequently adopted permanent rules with essentially the same movement restrictions and heightened testing requirements as the emergency rules. See 41 Tex. Reg. 5631, 5726–41. Peterson and Bailey amended their pleadings to challenge the permanent rules (CWD Rules). Bailey then nonsuited his claims.

After various proceedings that do not concern us here, the Department, Smith, Lockwood, and Wolf filed an amended plea to the jurisdiction and motion for summary judgment. The Department asserted the court lacked jurisdiction to decide Peterson's claim for an ownership declaration and that it was entitled to summary judgment on his other two claims because Peterson did not possess an ownership interest in his breeder deer. Peterson filed a cross-motion for summary judgment.

The district court heard arguments, reviewed evidence submitted by the parties, and signed an order providing:

IT IS ORDERED that [the Department]'s Partial Plea to the Jurisdiction that the Court lacks jurisdiction over Plaintiffs request for a declaration of deer ownership is GRANTED.
IT IS ORDERED that [the Department]'s Partial Plea to the Jurisdiction that the Court lacks jurisdiction over the State Officials with respect to Plaintiffs statutory and constitutional challenges to the rules and the constitutional challenges to the statutes is GRANTED.
In addition to and as an alternative, if necessary, to the Court's rulings on [the Department's] Partial Pleas to the Jurisdiction, the Court ORDERS that [the Department's] Motion for Summary Judgment is GRANTED and that Plaintiff's Motion for Summary Judgment is DENIED."
The Court further ORDERS that [the Department]'s Motion for Attorney's Fees is GRANTED. The Court finds and concludes that [the Department]'s defenses of Plaintiffs claims are so inextricably intertwined that segregation

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