                                                        .




                       March 15, 1976


The Honorable James Allen Payne    Opinion No. H- 795
County Attorney
Sabine County                      Re: Whether it is a
Hemphill, Texas 75948              violation of law for a
                                   landowner's cattle to be
                                   on a county road which
                                   bisects the individual's
                                   land in a county which
                                   has adopted a county-
                                   wide stock law.
Dear Mr. Payne:
     You have requested our opinion regarding the legal con-
sequences of the presence of cattle on a county road which
bisects the cattle owner's property. Article 6954, V.T.C.S.,
describes the procedure for holding an election to determine
whether cattle shall be permitted to run at large. Sabinn
County held such an election in 1968, and a county-wide
stock law was thereby approved. Article 6965 provides that,
in counties where a stock law is operative,
          lilt shall be the duty of any sheriff
          or constable . . . to seize any stock
         ,which may become known to him to be
          running at large on any outside premises
          . . I and impound the same in some place
          provided for that purpose. . . .
     You ask:
          1. Whether the owner of the cattle is
          violating the stock law when the cattle
          are on the county road.




                         p. 3356
The Honorable James Allen Payne - page 2 (H-795)


         2. If so, whether the sheriff may law-
         fully pursue the cattle onto the owner's
         property in order to impound them.

          3. Whether the designated class of the
          county road has any effect on the appli-
          cation of the stock laws.
     Our answer to your first question depends upon the
definition of "running at large."           -
S.W.Zd 294 (Tex.Civ.App. -- El Paso1?9~~1i~ovwr-?$%h~2
court construed a city ordinance which pkohibited :,
                                                   the
running at large within the limits of the town . . . of any
cattle . . . .' The court declared that, for purposes of
the ordinance, an animal is
          'running at large' . . . when --
                                        off the
           remises of its custodianw'ithin the
          hi=         with the consent or
          aquiescence of such custodian, or by
          reason of such custodian's negligence,
          when it is not under the immediate
          control of anyone. Id. at 296.
          (Emphasis added).   -
Other jurisdictions are in accord with this view. In Missouri,
for examnle. a doa is said to be "at larqe" when "off the
premises-of.its ownerlo real property and not restrained by
a competent person.'
409 (Mo.Ct.App. 1973).
part of the property of the cattle's owner/the cattle may,
while on the county road, be said to be "running at large,"
unless under the owner's control, e.g., being herded from
one pasture to another.
      In order for a violation of the stock law to occur,
however, the owner of the cattle must be at fault. Schumacher
v. City of Caldwell, 206 S.W.Zd 243 (Tex.Sup. 1947).-iSee
ZSXRamF              :dson, 397 S.W.Zd 288 (Tex. Civ. APP. --
-%?i'rdl%SRi%         ref'd n.r.e.1; Davis v. MasTey,Iz2;Ur
S.W.2d 242 (Te;. Civ. APP. -- Waco 1Kno       writ .
opinion, therefore, a violation of the stock law~occurs only
if the cattle are off their owner's property and under no
one's immediate control, and. in addition, only if they are
there with their owner's consent or through his negligence.
The Honorable James Allen Payne - page 3 (H-795)


     As to your second question, it is our opinion that the
sheriff may not lawfully pursue the,cattle onto their owner's
property for the purpose of impounding them. In Attorney
General Opinion O-453 (1939), this Office held that,
          as long as stock remained on the owner's
          property,~they would not be running at
          large, nor would the sheriff then have
          the.right to impound them.
This Opinion did not specifically address the situation in
which the cattle are on the public road when the sheriff
first observes them, but wander off the road and onto their
owner's premises when he attempts to apprehend them. In our
view, however, this distinction can make no difference. The
statute~requires the sheriff to seize stock "known to him to
be running at large." We do not believe that "to.be" in -
Gis instance may be said to include "to have been," and as
a result, the sheriff is not authorized to seize cattle
unless they are, at the moment of seizure, off their owner's
premises. Accordingly, a sheriff may not lawfully pursue
cattle onto their owner's property in order to impound them.
     Your third question inquires whether the designated
class of county road has any effect on the application of
the stock law. The commissioners court is directed by
article 6704, V.T.C.S., to designate all county public roads
as first, second or third class. Although,there is a specific
statutory provision dealing with the running at large of
animals on state and U.S. highways, article 6971a, V.T.C.S.,
the statutes draw no distinction among classes of county roads.
In our opinion, therefore, a county stock law, where adopted,
is applicable to all classes of county roads.
                      SUMMARY
          An owner of cattle violates a county
          stock law when such cattle are on a
          county road, provided that the cattle
          are on the road under no one's immediate




                         p. 3358
-.   -




         The Honorable James Allen Payne - page 4   (H-795)


                     control and with their owner's consent
                     or through his negligence. A sheriff
                     may not lawfully pursue cattle onto
                     their owner’s property for the purpose
                     of impounding them. The designated
                     class of the county road has no effect
                     on the application of the stock law.

                                        Very truly ycgrs,




         APPROVED:




         jwb




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