                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-13-00043-CV


                          PILAR RODRIGUEZ, APPELLANT

                                           V.

                      SANDHILL CATTLE CO., L.P., APPELLEE

                          On Appeal from the 242nd District Court
                                   Castro County, Texas
             Trial Court No. B9163-1004, Honorable Edward Lee Self, Presiding

                                     March 10, 2014

                                      OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Pilar Rodriguez sued Sandhill Cattle Co., L.P., for damages arising from his

colliding with cattle on a roadway after midnight. The cattle belonged to Sandhill and

had been pastured at a location several miles from the accident scene. The pasture

was surrounded by a functioning "hot-wire" when the cattle were left there. Sometime

later, a portion of the cattle escaped the pasture and roamed the area. It was later

discovered that the "hot-wire" had been broken.
       At trial and after Rodriguez "rested," Sandhill moved for a directed verdict

contending that its opponent had failed to prove a violation of the local stock law. The

trial court agreed, granted the motion, and entered judgment for Sandhill. Rodriguez

appealed. He contends that 1) the trial court applied an incorrect legal standard in

granting the directed verdict and 2) some evidence of negligence appeared of record

precluding entry of a directed verdict. We affirm the judgment.

       Much like when we review a summary judgment, we review a directed verdict by

determining whether the evidence before the trial court created a material issue of fact.

Prudential Ins. Co. of America v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.

2000) (stating that a directed verdict is proper when a plaintiff fails to present probative

evidence raising a fact issue on the material questions involved in the suit).         This

requires us to view the evidence in the light most favorable to the party against whom

the judgment was entered and resolve all reasonable inferences arising from that

evidence in a manner favorable to the non-movant. Yorkshire Ins. Co. v. Seger, 279

S.W.3d 755, 772 (Tex. App.—Amarillo 2007, pet. denied).

       Next, no one questions that in Texas there exists no common law duty to restrain

cattle within fences. Gibbs v. Jackson, 990 S.W.2d 745, 747-48 (Tex. 1999); accord

Palmer v. Hinders, No. 07-99-0341-CV, 2000 Tex. App. LEXIS 3657, at *4 (Tex. App.—

Amarillo June 1, 2000, no pet.) (not designated for publication) (stating that Texans

have no common law duty to fence their domestic animals such as cows and horses).

Rather, they agree that the duty underlying Rodriguez' complaint is a creature of statute

and arises under § 143.074 of the Texas Agriculture Code. The latter provides that “a

person may not permit" livestock "to run at large in the county or area in which" a local



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stock law was adopted by popular vote.1 TEX. AGRIC. CODE ANN. § 143.074(a) (West

2004). The county (that is, Castro County) wherein Sandhill pastured its cattle was one

such county.

        Next, the duty being a creature of statute, its scope is defined by the statute

creating it.    Meritor Automative, Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex.

2001). So, our focus lies upon the words "permit" livestock "to run at large" for that is

what our legislature said a person could not do. And, with that in mind, we note the

recent decision from a sister court in Rose v. Hebert Heirs, 305 S.W.3d 874 (Tex.

App.—Beaumont 2010, no pet.). There, Rose struck a bull that escaped its enclosure

and sued the landowners contending that they were negligent in permitting the bull to

roam at large. This resulted in the court having to construe § 143.074 of the Agriculture

Code and what was meant by the word "permit."                       Given the lack of any statutory

definition of the word, the Rose court turned to authority requiring it to assign the word

its common or plain meaning, id. at 881; TEX GOV’T CODE ANN. § 311.011(a) (West

2013), and found that meaning to be "'to consent to expressly or formally' or . . .'to give

leave.'" Rose v. Hebert Heirs, 305 S.W.3d at 881. Then, it applied that definition and

ultimately held that the plaintiffs "failed to meet their burden of producing evidence to

show that the Landowners breached section 143.074." Id. at 881-82.



        1
           Permitting livestock to run at large may also be a class C misdemeanor. However, the statute
making it so, § 143.082 of the Texas Agriculture Code, differs from § 143.074 in one important way. It
adds the word “knowingly” before permit; that is, it states: “A person commits an offense if the person
knowingly permits a head of cattle . . . to run at large in a county . . . .” TEX. AGRIC. CODE ANN. § 143.082
(West 2004). The Supreme Court suggested in Beck v. Sheppard, 566 S.W.2d 569 (Tex. 1978), that
“knowingly” encompassed “‘an intention to do the act complained of or such negligence as is tantamount
to a wilful act.’” Id. at 572, quoting Jackson v. Overby, 185 S.W.2d 765 (Tex. Civ. App.—Eastland 1945,
no writ). So, one could reasonably deduce that from the absence of the modifier “knowingly” in
§ 143.074, proof of intentional conduct or negligent conduct tantamount to a wilful act would not be
necessary when suit is founded upon § 143.074.

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      The analysis undertaken by the Rose court in affirming the trial court also merits

comment. It searched the record and then said:


      . . . 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.


      Id. (Emphasis added). The nature of the evidence found missing indicates that

the court's interpretation of "permit" did not simply include conscious or knowing

conduct on the part of the individual who purportedly gave the bull leave to roam.

Rather, it also encompassed conduct undertaken by one who failed to act reasonably

under the circumstances.      Allusion to 1) knowing whether the animal previously

escaped from other pastures and 2) whether the facilities were "fit for the ordinary uses

for which they were intended"     suggest as much.       Indeed, it would strain belief to

conclude that unreasonable conduct (or conduct differing from what an ordinarily

prudent person would engage in under the circumstances) could never indicate

permission to allow cattle to roam. For instance, tethering a grown bull's hoof to a stake

via a piece of household sewing thread will hardly deter the bull from moving in any

meaningful way. While that may indicate some subjective desire to prevent the bull

from roaming, a prudent person should find fault in the effort.            So, under that


                                            4
circumstance, it would be reasonable for a fact finder to deduce that the conduct was

tantamount to giving the animal leave to roam. See Gibbs v. Jackson, 990 S.W.2d at

749-50 (discussing an identically worded counterpart to § 143.074, that is, § 143.024 of

the Texas Agriculture Code, and stating that Texas courts have used the provision to

hold or assume that livestock owners may be liable for negligence if their animals stray

onto highways).

        Given that Rose focused on § 143.074, the nature of the duty imposed

thereunder, and its analysis of what was meant by "permit," we find the opinion quite

persuasive and applicable here. And given the tenor of the questions asked by the trial

court of Rodriguez' counsel before granting the directed verdict,2 it also appears that the

trial court utilized Rose in assessing whether a directed verdict was appropriate.

        With this said, we turn to the arguments before us. The first we address is that

insinuating the trial court erred in obligating Rodriguez to prove Sandhill engaged in

something more than negligence. Given that the trial court applied the Rose definition

of "permit" in making its decision and our adoption of that definition as controlling, we

reject the proposition.

        Next, we address the argument that livestock escaping its confines creates a

presumption of negligence. As Rodriguez himself recognizes in his appellate brief, the

Supreme Court disavowed that notion in Beck v. Sheppard, 566 S.W.2d 569 (Tex.

1978). Id. at 572 (stating that neither the ownership of the animal nor the ownership of

the premises created a rebuttable presumption that the animal’s presence on the road

was due to the negligence of either). Animals may escape through no fault of their

        2
           E.g.: "What evidence do you point to specifically that the defendant permitted the cattle to roam
at large based on the definition that we have in the law which means to consent to expressly or formally,
or to give leave?"

                                                     5
owners. Schumacher v. Caldwell, 206 S.W.2d 243, 266-67 (Tex. 1947)                       Thus, the fact

of their escape is not alone evidence of misconduct on the part of their owner. Id.; Van

Horne v. Harris, No. 2-06-183-CV, 2007 Tex. App. LEXIS 2266, at *10 (Tex. App.—Fort

Worth March 22, 2007, no pet.) (mem. op.) (stating that a violation does not occur solely

because an owner’s livestock runs at large); Goode v. Bauer, 109 S.W.3d 788, 792

(Tex. App.—Corpus Christi 2003, pet. denied) (stating that liability for the violation of

livestock laws requires more than the presence of the animals in a forbidden place)

        Lastly, we address whether there appeared evidence of record indicating that

Sandhill permitted its cattle to run at large. Rodriguez cites us to evidence that the

cattle in question weighed approximately 500 pounds each, 80 head were placed on 60

acres, only one hot-wire surrounded the pasture, the wire had only one power source,

only that portion of the wire near the trough held additional marking, and some of the

steers were "bulling."3 Yet, absent is evidence that steers attempting to copulate with

each other charge, wander, stampede, fall, fight, or the like. Nor is there evidence that

such conduct was pervasive, happened near the wire, or was immune from impedance

from a wire charged with electricity. Similarly missing is evidence that a single strand of

14 gauge electrified wire (like that present here) was insufficient to generally hold cattle

like those being pastured.         Indeed, the only evidence we found of record was that

indicating a single strand of hot-wire was no less sufficient than a three, four, or five

strand barbed wire fence.

        Evidence that the cattle were not trained to stay within the confines of a hot-wire

fence is also missing from the record, as is evidence that the cattle in question had


        3
         According to the witness to whom the question was asked, "bulling" indicates effort by a steer to
mount or breed with another steer. One should note that a steer is incapable of breeding.

                                                    6
previously escaped from a hot-wire fence, that Sandhill knew the hot-wire fence was

inoperative before leaving the cattle, that Sandhill failed to inspect the hot-wire fence to

determine if it was operative, that Sandhill failed to periodically inspect the wire once the

cattle were left, that Sandhill knew the cattle escaped and did nothing, that Sandhill left

or allowed anyone to leave an opening in the hot-wire fence, or that there were too

many head of cattle on the 60 acres. Nor do we find evidence from anyone familiar with

cattle or their pasturing that can be read as criticizing the pasturing technique used

here.

        Simply put, nothing of record supports a reasonable inference that Sandhill

breached § 143.074 of the Agriculture Code and permitted its cattle to run at large.

Consequently, the trial court did not err in granting the directed verdict.

        Accordingly, the judgment is affirmed.




                                                         Brian Quinn
                                                         Chief Justice




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