
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________

 
NO. 09-09-00055-CV

____________________



LASHONDA ROSE, AS NEXT FRIEND OF C.D. AND K.D., 

AND EZOLA ROSE, AS NEXT FRIEND OF R.C., Appellants



V.



BEN C. HEBERT HEIRS, HEBERT-GREEN, L.L.P., C. DOORNBOS, INC.,

C. DOORNBOS HEIRS, LABELLE PROPERTIES, LTD.,LABELLE GENERAL, L.L.C., WILLIAM & OPAL DOORNBOS TRUST, Appellees





On Appeal from the 136th District Court
Jefferson County, Texas

Trial Cause No. D-180,417




OPINION
 This is an appeal from the trial court's order granting the appellees' no-evidence
motions for summary judgment.  We affirm.  



Background

	On the night of July 5, 2002, LaShonda Rose drove a car that struck a black bull on
State Highway 87.  Rose and her three minor passengers, C.D., K.D., (1) and R.C., were injured
in the collision. 
	On September 27, 2007, C.D., K.D., and R.C. ("the Minors") sued the landowner-defendants ("the Landowners").  In their petition, the Minors alleged that the bull had
escaped from property owned by the Landowners, and that the Landowners were negligent
in permitting the bull to roam at large.  The Minors also alleged that the Landowners
negligently failed to ensure that the gates on the premises were locked and failed to install
cattle guards at the pasture's gate.
	After answering the Minors' suit, the Landowners (2) -Labelle Properties, Ltd.; Labelle
General L.L.C.; Ben C. Hebert Heirs; Hebert-Green, L.L.P.; C. Doornbos, Inc.; C. Doornbos
Heirs; and the William & Opal Doornbos Trust-filed no-evidence motions for summary
judgment.  Each of the Landowners' respective motions for summary judgment assert there
is no evidence of a duty to the Minors, no evidence of any breach of any duty to the Minors,
and no evidence that any of their acts proximately caused the Minors' injuries.
	Several facts are not disputed in this appeal.  At the time of the collision, the pasture
from which the bull allegedly escaped was leased by the Landowners to H.C. Youmans. (3)
Additionally, the Landowners did not own the bull involved in the collision.
	The parties also do not dispute that under Texas common law, there is no duty to
restrain livestock.  Even though there is no duty at common law, the parties agree that Texas
statutes may create personal duties to restrain livestock.  See Gibbs v. Jackson, 990 S.W.2d
745, 747-50 (Tex. 1999) (declining to adopt a general common law duty to ensure that
livestock do not stray onto farm-to-market roadways, but considering possible statutes that
could create such a duty).
	The Minors' summary judgment evidence includes two leases between Youmans and
the  families that jointly own the pasture.  The Minors' brief, however, refers only to one of
the two leases, the Doornbos lease. (4)  The Doornbos lease provides, in pertinent part:
		ARTICLE 4.  USE OF PREMISES AND RESTRICTIONS
		1.  Lessee shall have the right to graze cattle and other livestock, and
Lessor specifically reserves the full use of the premises for any and all
purpose(s) other than those for which same are specifically leased to Lessee. 
(For example, Lessor reserves the hunting and trapping rights and the right to
lease the premises for hunting and trapping.)  This lease shall be subservient
to the exercise by Lessor and Lessors' other tenants of all other rights, and
Lessee's rights hereunder are and shall be subordinate to any other leases or
permits presently existing or which may during the term hereof be granted by
Lessor.

		2.  Lessee shall not be allowed to do any hunting or trapping on said
premises.

		3.  During the term of this lease, Lessee agrees to maintain all roads,
fences, pens, gates, sheds, and other improvements on the premises and, upon
termination thereof, to return same to Lessor in as good condition as presently
exists. 

		4.  Lessee will patrol and protect the leased premises against
trespassers.

		5.  Lessee will not make or allow any unlawful, improper, or offensive
use to be made of said premises and will execute, comply with, and fulfill all
laws, orders, and requirements imposed by all governmental authorities and
agencies applicable to the use for which said premises are leased to him and
pay all taxes or other charges which shall during the term hereof accrue, or
become due and payable, because of his use of the leased premises and will
permit no agent, employee, contractor, licensee, or invitee of Lessee, to violate
any laws, rules, or regulations applicable to the use for which said premises are
leased.

		6.  All improvements of whatever kind necessary for the use of said
premises for the purposes herein stated shall be made by Lessee at his expense. 

	Subsequently, after a hearing, the trial court granted the Landowners' respective
motions for summary judgment.  Four days before signing the summary judgment orders, the
trial court sent a letter to the parties stating: 
	. . . [The Texas Agriculture Code,] §143.024[,] simply states that "a person
may not permit" an animal to run at large.  To adopt plaintiffs' theory of
liability would be tantamount to strict liability on a (potentially absent)
premises owner under §143.024 whereas the lessee/owner (with day-to-day
responsibility for the livestock) would only be liable if found to have
"knowingly" permitted the cattle to roam free.

		Black's Law Dictionary (6th Ed.) defines "permit" as follows:
[']Permit, v., to suffer, allow, consent, let; to give leave or license; to
acquiesce, by failure to prevent, or to expressly assent or agree to the doing of
an act.[']   Each of these concepts presupposes knowledge on the part of the
person permitting a particular act.  Even the failure to prevent is a form of
acquiescence which, likewise, would require knowledge.

		Accordingly, the Court finds as a matter of law that there was no duty
on the part of defendants and, further, there is no evidence of any breach of the
duty.  Therefore, defendants' Motions for Summary Judgment will be granted. 
. . . .  



Issue

	On appeal, in a single issue, the Minors advance several arguments asserting the trial
court erred in granting the Landowners' motions for summary judgment.  Specifically, the
Minors argue that the trial court erred (1) in finding the Landowners owed the Minors no
duty, (2) in requiring the Minors to show that the Landowners had knowledge of the presence
of the bull on the highway, and (3) in ruling there was no evidence that the Landowners had
breached the duties they owed to the Minors under section 143.074 of the Texas Agriculture
Code.  See Tex. Agric. Code Ann. § 143.074 (Vernon 2004).
	In response to the Minors' appellate arguments, the Landowners assert they are not
responsible to control a bull they did not own and argue that they did not knowingly permit
the bull to roam unattended.  Additionally, the Landowners contend that the local stock law
option provision, (5) adopted by Jefferson County voters in 1933, (6) is void.  In the alternative,
if the local stock option law is valid, the Landowners contend there is no evidence that they
violated any duty imposed by the statute.	


Standard of Review

	The appeal requires that we consider the trial court's interpretation of section 143.074
of the Texas Agriculture Code. (7)  The trial court, in resolving the Landowners' motions for
summary judgment, interpreted section 143.074 of the Agriculture Code in a manner
requiring the Minors to prove the Landowners, before the collision, had knowledge of the
bull's escape from its pasture.
	With respect to the trial court's interpretation of a statute, we review matters of
statutory construction as questions of law under a de novo standard of review.  State v.
Shumake, 199 S.W.3d 279, 284 (Tex. 2006).  After construing the statute, we then determine
whether the trial court properly resolved the Landowners' no-evidence motions for summary
judgment.  We review a trial court's decision to grant a no-evidence motion for summary
judgment under the standards set forth in Rule 166a(i) of the Texas Rules of Civil Procedure. 
See Tex. R. Civ. P. 166a(i).  
	To defeat a no-evidence summary judgment motion, the non-movant must produce
summary judgment evidence raising a genuine issue of material fact regarding each element
challenged by the movant.  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). 
The non-movant raises a genuine issue of material fact by producing "more than a scintilla
of evidence" establishing the challenged element's existence.  Id.  More than a scintilla of
evidence exists when the evidence is such that reasonable and fair-minded people can differ
in their conclusions.  Id. at 601.  If "'the evidence offered to prove a vital fact is so weak as
to do no more than create a mere surmise or suspicion of its existence, the evidence is no
more than a scintilla and, in legal effect, is no evidence.'" Id.  (quoting Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).  In determining whether the non-movant
has produced more than a scintilla of evidence, we review the evidence in the light most
favorable to the non-movant, and we give credit to such evidence if reasonable jurors could
and disregard contrary evidence unless reasonable jurors could not.  See Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
 The Parties' Arguments

	The Minors do not claim that they are owed a duty of care under Texas common law;
instead, they cite two Texas statutes that serve as the basis of the duties owed to persons who
strike large domestic animals while traveling on a road. (8)    The first statute, section 143.102
of the Agriculture Code, applies to "[a] person who owns or has responsibility for the control
of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat[,]" and prohibits such person
from "knowingly permit[ting] the animal to traverse or roam at large, unattended, on the
right-of-way of a highway."  Tex. Agric. Code Ann. § 143.102 (Vernon 2004).  Without
further explanation, the Minors' brief states that this provision "is not applicable here." (9)  The
second statute that creates duties on the part of individuals to restrain roaming livestock, and
the one upon which the Minors rely, is found at section 143.074 of the Agriculture Code.  See
Tex. Agric. Code Ann. § 143.074.  According to the Minors, this statute requires persons
to exercise reasonable care over their property to prevent cattle from roaming at large.  Id. 
	On appeal, and consistent with their arguments in the trial court, the Landowners
assert there is no evidence from which a reasonable inference can be made that they 
knowingly permitted a bull to roam at large on State Highway 87. (10)  The Minors disagree 
that section 143.074 requires proof that the Landowners knowingly permitted the bull's 
escape.  In summary, the Minors contend that the Landowners can be held liable under the
facts of this case (1) if the Landowners knew or should have known that their conduct could
permit cattle to escape from their land, and (2) if, in light of that knowledge, the Landowners
failed to exercise reasonable care under the circumstances.
	The Minors argue that they met their burden of producing some evidence to
demonstrate that the Landowners owed a duty to them, and they further contend that they
marshaled evidence to show that the  Landowners were negligent.  Specifically, the Minors
point to the deposition transcript of Youmans, who testified that a cattle guard would make
it less likely that a cow could successfully escape through a pasture's open gate.  They also
point to their proof that it was foreseeable that cattle could escape through an open gate.

Analysis

	In construing a statute, we are to "determine and give effect to the Legislature's
intent." Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).  In determining
the Legislature's intent, our review is not confined to isolated words, phrases, or clauses, "but
rather we examine the entire act to glean its meaning."   Meritor Auto., Inc. v. Ruan Leasing
Co., 44 S.W.3d 86, 90 (Tex. 2001);  see also Tex. Gov't Code Ann. § 311.011(a) (Vernon
2005) (instructing courts to construe words and phrases in context).  "We look first to the
statute's language to determine that intent, as we consider it 'a fair assumption that the
Legislature tries to say what it means, and therefore the words it chooses should be the surest
guide to legislative intent.'" Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008) (quoting
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)).  "If the
statute's language is unambiguous, its plain meaning will prevail."  Id. 
	Because the Legislature did not define the term "permit" in Chapter 143 of the
Agriculture Code, we first address its likely meaning. (11)  When determining whether a given
statute is ambiguous, we consider, among other things, (1) the statute's objectives; (2) the
circumstances under which the statute was enacted; (3) the statute's legislative history; (4)
common law, former law, and similar provisions; (5) the consequences of a particular
construction; (6) if pertinent, any administrative agency constructions of the statute in issue;
and (7) the statute's title (caption), preamble, and emergency provision.  Tex. Gov't Code
Ann. § 311.023(1)-(7) (Vernon 2005); see also In re Canales, 52 S.W.3d 698, 702 (Tex.
2001).  We also presume that the Legislature intended a just and reasonable result.  Tex.
Gov't Code Ann. § 311.021(3) (Vernon 2005);  Helena Chem. Co. v. Wilkins, 47 S.W.3d
486, 493 (Tex. 2001).
	Terms not specifically defined by statute are construed according to the rules of
grammar and common usage.  See Tex. Gov't Code Ann. § 311.011(a).  Dictionaries
determine a word's common use.  "Permit" means  "1 : to consent to expressly or formally
: grant leave for or the privilege of : ALLOW, TOLERATE  < ~ smoking> < ~ an appeal>
< ~ access to records> 2 : to give (a person) leave : AUTHORIZE . . . 3 archaic : to give over
: COMMIT . . . 4 : to make possible <building has been divided . . . to ~ an unobstructed
view-Amer. Guide Series: Conn.>. . . ." Webster's Third New International
Dictionary 1683 (2002) (examples omitted following definitions 2 and 3).  
	In contrast to the arguments advanced by all of the parties, we note that section
143.074 does not utilize the terms "negligence" or "knowingly" to define the scope of the 
duty created by section 143.074.  See Tex. Agric. Code Ann. §143.074.   However, in
defining the statutory penalty for a violation of section 143.074, the Legislature limits the
persons subject to being fined  to those who "knowingly permit[]" cattle to run at large.  Tex.
Agric. Code Ann. § 143.082 (Vernon 2004).  Section 143.082 provides:
	(a) A person commits an offense if the person knowingly permits a head of
cattle or a domestic turkey to run at large in a county or area that has adopted
this subchapter.

	(b) An offense under this section is a Class C misdemeanor.  

Id.

	By examining section 143.074's penalty provision, it appears unlikely that the
Legislature intended to extend the duty to include any person who, in any abstract sense,
could be said to have "made possible" the escape of livestock from a pasture. Construing
section 143.074 broadly, in our opinion, would do violence to the overall context of Chapter
143.  For example, construing "permit" to mean "made possible" could impose a statutory
duty on a manufacturer of barbed-wire when a strand of wire rusts and breaks, thereby
making possible the escape of cattle from a pasture.  In light of the Legislature's choice to
restrict the reach of the statute's penalty provision to those who "knowingly" permit cattle
to roam at large, we are skeptical that the Legislature intended the duty it created in section
143.074 to extend to any person "who makes possible" the escape of cattle from a pasture. 
	We conclude that the Legislature likely intended "permit" to mean "to consent to
expressly or formally," or to mean "to give leave."  These two definitions of the word
"permit" found in Webster's Third New International Dictionary appear to us to be the
word's common meaning. (12) 
	We are not to enlarge the plain meaning of a statute by enlarging on a word's common
meaning.  See Nat'l Plan Adm'rs., Inc. v. Nat'l Health Ins. Co., 235 S.W.3d 695, 701 (Tex.
2007) ("[W]e do not expand the meaning of statutes by implication[.]"); see also Lenz v.
Lenz, 79 S.W.3d 10, 19 (Tex. 2002) ("When construing a statute, we ascertain the
Legislature's intent from the plain meaning of the actual language used."); Sorokolit v.
Rhodes, 889 S.W.2d 239, 241 (Tex. 1994) ("In applying the plain and common meaning of
the language in a statute, courts may not by implication enlarge the meaning of any word in
the statute beyond its ordinary meaning; such implication is inappropriate when legislative
intent may be gathered from a reasonable interpretation of the statute as it is written."). 
	Next, we turn to whether the summary judgment evidence contains any evidence, even
a scintilla, that the Landowners "permitted" the bull to roam at large.  Having reviewed the
record, we are unable to find any evidence showing that the Landowners "permitted" the bull
to roam at large.  Nothing in the record indicates the Landowners visited the property or that
they had entered the gate at any point in time relevant to the date of the collision.  There is
no evidence that any of the Landowners left the gate open.  We find no evidence that the
Landowners authorized the bull's owner, the lessee that was granted grazing rights, or any
hunters that held hunting rights, the right to leave the gate open.  There is no evidence that
the Landowners authorized either Youmans or Gilfillian the right to run cattle at large.  There
is also no evidence that the Landowners had been notified of the bull's escape prior to the
collision, and there is no evidence that the Landowners were aware that any cattle had
previously escaped from the pastures they leased.  Finally, there is no evidence that the
pasture's fence and its gate were not fit for the ordinary uses for which they were intended. 
In summary, there is no summary judgment evidence to raise any inference that the
Landowners "permitted" the bull's escape as prohibited by the Legislature in section 143.074
of the Texas Agriculture Code. 
	After a careful review of the Landowners' motions for summary judgments and a
thorough examination of the Minors' responses to these motions, we agree with the trial court
that the Minors failed to meet their burden of producing evidence to show that the
Landowners breached section 143.074. (13)  We hold the trial court, on this record, properly
granted the Landowners' motions for summary judgment.  Consequently, we affirm the trial
court's orders.  
	AFFIRMED.										




								____________________________
									HOLLIS HORTON
										Justice


Submitted on December 11, 2009
Opinion Delivered February 4, 2010
Before McKeithen, C.J., Kreger and Horton, JJ.
1. K.D., twenty-two months old at the time of the collision, suffered catastrophic 
injuries.  The summary judgment evidence includes a Life Care Cost Analysis projecting  that
K.D. will incur lifetime medical expenses in excess of fifteen million dollars.
2. Three families, the Doornboses, the Labelles, and the Heberts, together with  certain
entities owned or controlled by various individuals from the  three families, jointly own the
land from which the bull allegedly escaped.  In a prior suit, the Minors settled claims against
the bull's alleged owners, Hollis Gilfillian and H.C. Youmans.  Youmans and Gilfillian were
not named as parties in this suit.
3. While the Landowners do not dispute their ownership of the land leased to Youmans,
they currently dispute whether they had sufficient control over the bull to restrict it to the
pasture on the date of the collision.
4. The Doornbos lease was executed June 14, 1996, and then renewed annually.  The
Labelle-Hebert-Green lease, the other pertinent lease issued by the remaining Landowners,
was executed July 13, 2001.  The two leases both grant grazing rights to Youmans; require
that Youmans pay for any required or necessary improvements; impose an obligation on
Youmans to maintain all fences, gates, and other improvements on the leased premises; and
reserve to the owners all rights not granted to the lessee.  With the exception of one
additional obligation in article four of the Labelle-Hebert-Green lease, the two leases contain
identical provisions regarding the lessee's use of the property.  The additional provision in
the Doornbos lease requires Youmans to keep the gates on the property locked and requires
that he notify the lessors as soon as practicable of any failure to "maintain cattle within the
confines of the premises. . . ."  If violated, the notification provision further provides the
lessors with the right to declare the lease in default.
5. See Tex. Agric. Code Ann. §§ 143.071-.082 (Vernon 2004).  
6. See "Order Declaring Results of Stock Law Election - Horses, Mules, Jacks, Jennets
& Cattle - Jefferson County as A Whole," at page 894 of the clerk's record on appeal.
7. We assume, without deciding, that section 143.074 of the Texas Agriculture Code
is not void as it relates to Jefferson County.  On appeal, the Landowners contend that
Jefferson County could not legally adopt section 143.074.  They further assert that imposing
liability on them as owners of land in Jefferson County by virtue of section 143.074 would
deprive them of their property without due process of law.  That argument is premised on
their claim that section 143.072 of the Agriculture Code expressly prohibited Jefferson
County from conducting a countywide election to adopt the local option stock law.  Compare
Tex. Agric. Code Ann.§ 143.074 (Vernon 2004) with Tex. Agric. Code Ann. § 143.072
(Vernon 2004).  Although an interesting argument, and one that the Landowners raised in the
trial court, we must defer deciding whether the order adopting the local option stock law in
Jefferson County is void. "Judicial restraint cautions that when a case may be decided on a
non-constitutional ground, we should rest our decision on that ground and not wade into
ancillary constitutional questions."  VanDevender v. Woods, 222 S.W.3d 430, 432 (Tex.
2007).  Like the trial court, which also chose not to wade into the Landowners' challenge to
the validity of the statute, we likewise choose to decide the dispute on another issue.
8. In their brief, the Minors acknowledge that "[t]here is no common law duty in Texas
to restrain livestock." See Gibbs v. Jackson, 990 S.W.2d 745, 746 (Tex. 1999).  As the
Minors do not contend that they are owed a duty at common law, we do not further address
whether any common law duty exists.  See Tex. R. App. P. 47.1 (opinion must address every
issue raised as necessary to final disposition of the appeal).
9. In response to the Labelle defendants' motion for summary judgment, the Minors'
argued that the Landowners violated section 143.102 of the Agriculture Code.  Subsequently,
in their response to the Hebert-Green's and the Doornboses' motions for summary judgment,
the Minors stated that they were not asserting a negligence claim against these defendants
under section 143.102 of the  Agriculture Code.  Based upon their brief, it now appears that
the Minors do not claim that section 143.102 applies to any of the defendants.  As the Minors
do not contend the trial court erred in failing to consider whether section 143.102 creates
duties owed to them, any question concerning whether it applies to the Landowners is also
not before us.  See Tex. R. App. P. 38.1(ei);  Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450
(Tex. 1998);  Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). 
10. The Landowners also argue that section 143.102 of the Agriculture Code is the
controlling provision for highways.  See Tex. Agric. Code Ann. § 143.107 (Vernon 2004).
Therefore, they conclude that the Legislature never intended the local option stock provision,
found in section 143.074, and which is not restricted to any specific roadway, to also apply
to a collision that occurred on a highway.  See Tex. Agric. Code Ann. §§ 143.074, 143.102
(Vernon 2004).  It is unnecessary that we reach this alternative argument in resolving the
appeal.  See Tex. R. App. P. 47.1. 
11. In support of the trial court's judgment, the Landowners also argue that the Minors
produced no evidence to explain how the bull escaped the pasture.  We do not discuss this
argument.  Instead, we focus on whether the Minors, in response to the Landowners'
summary judgment motions, produced any evidence to show that the Landowners permitted
cattle to roam at large in violation of a statutory duty that we have assumed applies to
Landowners pursuant to section 143.074 of the Agriculture Code. 
12. We also doubt that the Legislature intended to adopt an archaic meaning of "permit,"
so we do not further discuss the sense of "permit" when used to mean "to give over."
13. We reiterate that we have assumed for purposes of this appeal that the local option
stock law can validly apply in Jefferson County:  we expressly reserve deciding whether
Jefferson County could validly adopt the local option stock law.
