      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00640-CV



                                  James W. Shrieve, Appellant

                                                  v.

                       Texas Parks and Wildlife Department, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
       NO. GN403181, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is an interlocutory appeal from the district court’s order denying appellant’s

request for a temporary injunction to restore his eligibility to obtain managed lands deer permits.

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2004-05). We will affirm the order.


                                         BACKGROUND

               This appeal presents issues relating to a landowner’s ability to participate in the Texas

Parks and Wildlife Department’s managed lands deer permit (MLDP) program, through which

landowners can expand deer hunting rights on their property beyond that which state law generally

allows. Some background regarding the MLDP program is helpful in placing the present appeal in

context.
The MLDP program

                The Department has the statutory responsibility of managing the state’s deer

population. See Tex. Parks & Wild. Code Ann. §§ 12.001, 61.002, 61.051, 61.054 (West 2002).

An important aspect of deer population management is hunting, which is both a traditional

recreational pastime for many Texans and a lucrative commercial activity for Texas landowners who

lease their property for hunting.    Through the statutes and regulations administered by the

Department, Texas endeavors to strike a balance among the goals of preventing deer overpopulation,

fostering hunting as a recreational and economic activity, and preventing excessive depletion of the

deer population. See id.

                To balance these interests, Texas law allows deer hunting during fixed seasons each

year, requires each hunter to acquire a hunting license from the Department, and places a “bag limit”

on the number of deer each hunter may kill each year.1 See id. § 42.002 (West Supp. 2004-05); 31

Tex. Admin. Code §§ 65.38, 65.42 (2004). Although each individual hunter is responsible for

complying with license requirements and bag limits, this general regime places no limitations on the

total number of deer that can be killed on a given property each year or season. See id. § 42.002; 31

Tex. Admin. Code §§ 65.38, .42.

                The Department also administers a Wildlife Management Plan (“WMP”) program

whereby individual landowners may opt into a different regulatory scheme governing hunting on

their property in exchange for agreeing to more comprehensive wildlife and habitat management by

the Department. See 31 Tex. Admin. Code § 65.25 (2003). Among the management measures


       1
           The Department issues about 400,000 deer-hunting licenses each year.

                                                 2
contained in WMPs are harvest quotas for wildlife. See id. WMPs are prepared free of charge by

Department biologists based on information the landowner must supply. In exchange for agreeing

to a WMP, landowners may receive property tax breaks and, with respect to deer, eligibility to

participate in the MLDP program. See id. §§ 65.25-.26. A current WMP, specifying a harvest quota

for deer, must be approved and on file before a landowner is eligible for the MLDP program. See

id.   Landowners may participate at varying “levels” of the MLDP program with different

requirements of management measures and corresponding benefits. To participate at “level three”

of the MLDP program, for example, a landowner agrees to achieve at least four habitat management

recommendations within three years. Id. § 65.26. In exchange, the landowner receives benefits

including an extended season on his or her property for hunting deer with guns.

               Under the MLDP program, the Department issues a participating landowner a certain

number of permits that each entitle the bearer to kill one deer. See id. § 65.26(d). Landowners have

discretion to distribute some or all of their annual MLD permits to third parties, such as persons

paying to hunt on their property. Id. § 65.26(c). The Department represents that the MLD permits

supersede the standard bag limits, allowing a bearer to kill as many deer as he or she wishes as long

as he or she has unused MLD permits. Moreover, hunters bearing MLD permits can hunt on the

participating landowner’s property during both the standard deer season and, unlike other locations,

during any extended period. However, the total number of MLD permits issued to the landowner

each year serves as a cap on the total annual number of deer killed on the property. Once the

landowner’s annual allotment of MLD permits is extinguished, regardless of when this occurs, deer

hunting on the property must cease for the year. Id.



                                                 3
               A landowner may apply for MLD permits by submitting to the Department, by August

15 of each year, deer-population or deer-harvest data. See id. § 65.25. A Department biologist

determines how many MLD permits to issue (if any) based on the capacity of the habitat and the

estimated deer population. The Department may deny a request for MLD permits if the landowner

has allowed too many deer to be killed on the property or if the landowner does not comply with his

or her WMP. See id. § 65.26(g). Denial of a request for MLD permits does not affect the

landowner’s ability to hunt on his own property or to allow commercial hunting on the property

during the standard open season.2 Compare 31 Tex. Admin. Code § 65.26 with Tex. Parks & Wild.

Code Ann. § 42.0175 (West 2002).


Proceedings below

               Appellant James Shrieve is the general or managing partner of the Shrieve Limited

Partnership, which owns a 2,900-acre ranch in Kimble County near Junction. Shrieve uses the

property for commercial hunting purposes. He has participated in the WMP for several years and

in the MLDP program since 2000. During the 2003 hunting season, Shrieve had a level three permit

that authorized hunting on his property between the Saturday nearest September 30 through the last

Sunday in January and during any open season. See id. § 65.26(b)(3). This had the effect of

extending deer season on Shrieve’s property beyond the standard season by approximately two-and-

a-half months, creating commercial hunting opportunities for the ranch.




       2
          Each individual hunter may still apply for and receive the normal hunting license with
permits that expire at the end of the standard annual hunting season.

                                                4
                 The precise events from which this appeal originated are somewhat unclear from the

record. On August 20, 2004, after Shrieve’s most recent MLD permits expired, the Department sent

Shrieve a letter stating that it had determined that activities on his property were inconsistent with

his approved WMP plan, and declaring him ineligible to participate in the MLDP program for the

next three years. Specifically, the Department alleged that Shrieve released additional deer on his

land—undermining the goal of reducing the deer population set out by Shrieve’s WMP—without

notifying the supervising Department biologist.3 Shrieve disputes the Department’s allegations. The

letter also stated that Shrieve could appeal the permit denial, and included contact information. The

Department admits that no notice or opportunity for hearing was given prior to its issuance of the

letter.

                 Apparently, Shrieve and his attorney participated in an appeal before the Wildlife

Divisions Appeals Panel.4 On September 15, 2004, the Panel announced that it would affirm the

Department’s decision, and declared Shrieve ineligible to participate in the MLDP program for a

three-year period beginning with the 2004-2005 hunting season. The director of the wildlife division

stated that the Panel


          was presented no new arguments to refute the following points:

          3
          If true, the fact that additional deer had been intentionally released to a tract that was
targeted for population reduction would be important information for the biologist issuing permits
and determining how to properly achieve reduction goals. The Department alleges that failure to
notify the biologist would constitute noncompliance with the WMP.
          4
          No record of the administrative appeal proceeding is included in the record. There was
testimony at the temporary injunction hearing, however, that the Panel consisted of the Department’s
division director, the director of the big game program, the whitetail deer program coordinator, and
the region director.

                                                  5
       (1) The population goal of the Wildlife Management Plan (WMP), agreed upon by
           you and Fielding Harwell [the Department biologist], is ‘8-10 acres per deer’;

       (2) You and others in your party acknowledged that population reduction was
           necessary to achieve the population goal;

       (3) TWPD records indicate that over 400 deer were added to the property over a
           three-year period although the population reduction goal had not been achieved;

       (4) The TPWD biologist in charge of the WMP was not notified of these stockings
           that were in direct contradiction to the WMP.


The panel also noted that Shrieve was allegedly “recently convicted on 29 counts of possessing deer

without a valid permit.”

               Shrieve appealed the Panel’s decision to district court, alleging tort claims and

requesting a temporary restraining order, temporary injunction, judicial review of the Department’s

administrative decision, and declaratory relief. Following a hearing, the district court denied

Shrieve’s request for a temporary restraining order and temporary injunction. This interlocutory

appeal followed.


                                           DISCUSSION

               Shrieve complains that the district court abused its discretion in refusing to issue a

temporary injunction staying enforcement of the Department’s decision. In his first issue, Shrieve

alleges that the Department acted outside its statutory authority by violating chapter 12 of the parks

and wildlife code and the Administrative Procedures Act (“APA”) when it sent the August 2004

letter without first giving him notice and an opportunity for a hearing. See Tex. Parks & Wild. Code




                                                  6
Ann. § 12.501 (West 2002). In his second issue, Shrieve contends that the Department’s actions

violated his due process rights. See U.S. Const. amend. XIV § 1; Tex. Const. art. 1 § 19.


Standard of review

               A temporary injunction is an extraordinary remedy and does not issue as a matter of

right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). To obtain a temporary

injunction, the applicant must plead and prove three elements: (1) a cause of action; (2) a probable

right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id.

Whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Id. A

failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion.

Gonzalez v. Reliant Energy, Inc., 48 Tex. Sup. Ct. J. 462, 2005 Tex. LEXIS 212, at *24-25 (Tex.

March 11, 2005).


Statutory right to notice and hearing

               The Department must give notice and an opportunity for hearing before suspending

or revoking an original or renewal permit or license on certain grounds. See Tex. Parks & Wild.

Code Ann. § 12.501 (West 2002). This notice and hearing are governed by the requirements of the

contested case provisions in sections 2001.052 and 2001.054 of the government code. See id.

§ 12.502 (West 2002); see also Tex. Gov’t Code Ann. §§ 2001.052, .054 (West 2000). We conclude

that these requirements do not apply here.

               By their unambiguous terms, sections 12.501 and 12.502 only apply to the suspension

or revocation of original or renewal permits or licenses. See Tex. Parks & Wild. Code Ann.



                                                 7
§§ 12.501, .502. By contrast, the Department is not required by statute to give notice or hearing

before it decides to “refuse to issue or transfer an original or renewal license, permit, or tag,” and the

contested case provisions of the APA do not apply to such decisions. Id. § 12.508 (West 2002).

However, a party may seek judicial review of such refusals in Travis County district court. See id.

§ 12.506 (West 2002).

                We conclude that Shrieve’s complaint does not concern a suspension or revocation

of permits or licenses, but the Department’s failure to issue them. At the time of the Department’s

actions, Shrive did not have current MLD permits; the most recent permits expired at the end of

January 2004.5 Shrieve argues that even if his MLD permits had expired, the Department’s letter

still constituted a revocation or suspension—a revocation or suspension of his right to participate

in the MLDP program and receive future MLD permits for three years. This argument overlooks the

fact that Shrieve had no statutory right to participate in the MLDP program without possessing a

current WMP plan. See id. §§ 65.25, .26 (2004). WMP plans are only valid for one year, and

Shrieve’s had expired before the Department’s August 2004 letter issued. See id.; 31 Tex. Admin.

Code § 65.26(b)(3) (level three permit “is valid from the Saturday nearest September 30 through the

last Sunday in January and during an open season on the property for which it is issued.”). In sum,

at the time of the Department’s decision, Shrieve had no active license or permit that could have




        5
         In his reply brief, Shrieve mistakenly argues that section 43.603 of the parks and wildlife
code precludes the conclusion that his permits expired. See Tex. Parks & Wild. Code Ann. § 43.603
(West 2002) (“permit is valid for a period prescribed by the department of not less than one year”).
However, section 43.603 relates to deer management permits rather than MLD permits. Compare
31 Tex. Admin. Code §§ 65.131-138 (2004), with 31 Tex. Admin. Code §§ 65.25-.26. The two
programs are governed by different rules.

                                                    8
been “revoked” or “suspended” by the Department’s decision. See id. § 12.501 (West 2002).

Instead, the Department’s challenged action amounts to a decision to refuse to issue an original or

renewal license, permit, or tag pursuant to section 12.508. Id. § 12.508. Under chapter 12, Shrieve

had no right to prior notice and hearing; his sole recourse is judicial review in district court. See id.

§ 12.506 (West 2002).6

                Nor does the APA independently give rise to a right of Shrieve to prior notice and

hearing before the Department made its decision. In the absence of express statutory authority, the

APA does not independently provide a right to a contested case hearing. Eldercare Props., Inc. v.

Tex. Dep’t of Human Servs., 63 S.W.3d 551, 557 (Tex. App.—Austin 2001, pet. denied), reversed

on other grounds, Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145

S.W.3d 170, 196 (Tex. 2004); see also Best & Co. v. Texas State Bd. of Plumbing Exam’rs, 927

S.W.2d 306, 309 (Tex. App.—Austin 1996, writ denied). Rather, its application is limited to

contested cases regarding the grant, denial, or renewal of a license that is required to be preceded by

notice and opportunity for hearing. Tex. Gov’t Code Ann. § 2001.054 (West 2000).

                Moreover, in its rules, the Department specifically reserved “the right to deny further

issuance of MLD permits” to a landowner who did not abide by the WMP. 31 Tex. Admin. Code

§ 65.26(g). The penalty for exceeding the harvest quota or violating the WMP is ineligibility to

receive MLD permits for three years from the date of denial. Id. We conclude that Shrieve had no




        6
          We do not reach the issue of whether the Department failed to give proper notice of the
suspension or denial of a permit via certified or registered mail because we find that there was no
active license suspended or denied. Moreover, Shrieve admitted that he received actual notice via
regular mail.

                                                   9
current permit subject to section 12.501, the APA did not require notice and a hearing before the

Department issued its letter, and the initial decision was authorized by Department rules. Therefore,

the district court did not abuse its discretion in refusing to issue the temporary injunction on those

grounds. We overrule Shrieve’s first issue.


Due process

               In his second issue, Shrieve alleges that his right to due process under the state and

federal constitutions were violated because his “ability to apply for permits amounted to a vested

property interest.”7 With respect to procedural due process claims like this, the Texas Supreme

Court has found no meaningful distinction between Texas’s protection of due course of law and the

federal constitution’s guarantee of due process. University of Tex. Med. Sch. v. Than, 901 S.W.2d

926, 929 (Tex. 1995); see U.S. Const. amend. XIV § 1; Tex. Const. art. 1 § 19. Thus, the supreme

court has followed contemporary federal due process interpretations of procedural due process

issues. Than, 901 S.W.2d at 929 (citing Mellinger v. City of Houston, 3 S.W. 249, 252-53 (1887));

see also Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 560-61 (Tex. 1985). Although

not bound by federal due process jurisprudence, we consider federal interpretations of procedural

due process to be persuasive authority in applying our due course of law guarantee. Than, 901




       7
          Shrieve also alleges that the appeals panel did not operate in a fair, honest, or unbiased
manner. See Hammack v. Public Util. Comm’n, 131 S.W.3d 713, 731 (Tex. App.—Austin 2004, pet.
filed). Shrieve must overcome the presumption that agency decision makers are fair, honest, and
unbiased. Id. The record of the administrative appeal is not before us, and Shrieve’s mere
allegations are insufficient to rebut that presumption with regard to the issues presented in this
interlocutory appeal. See id.; see also Vandygriff v. First Sav. & Loan Assoc., 617 S.W.2d 669, 673
(Tex. 1981).

                                                 10
S.W.2d at 929. We thus apply a two-part analysis: (1) we must determine whether Shrieve has a

property interest that is entitled to procedural due process protection; and (2) if so, we must

determine what process is due. Id.; see Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982);

Collins v. Texas Natural Res. Conservation Comm’n, 94 S.W.3d 876, 883 (Tex. App.—Austin 2002,

no pet.).

               To have a property interest in a governmental benefit, a person must have more than

a unilateral expectation of it; there must be a legitimate claim of entitlement. See Board of Regents

v. Roth, 408 U.S. 564, 577 (1972); Smith v. Travis County Bail Bond Bd., 559 S.W.2d 693, 694 (Tex.

Civ. App.—Austin 1977, no writ) (no protected property interest in expired license). “[T]he

strictures of due process apply only to the threatened deprivation of liberty and property interests

deserving the protection of the federal and state constitutions.” Trostle v. Combs, 104 S.W.3d 206,

213 (Tex. App.—Austin 2003, no pet); see Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 561

(Tex. 1985); see also Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Additionally, the claim of

entitlement must be created by an independent source such as state law. See id. An entitlement must

stand or fall on the application of rules to facts. Nelson v. Clements, 831 S.W.2d 587, 591 (Tex.

App.— Austin 1992, writ denied). “To the extent a request appeals to discretion rather than to rules,

there is no property.” Id. (quoting Scott v. Village of Kewaskum, 786 F.2d 338, 339-40 (7th Cir.

1986)).

               Shrieve admitted that the MLD permit process involves the discretion of the

Department and its biologist because they determine when and how many permits should be issued.

See 31 Tex. Admin. Code Ann. §§ 65.25, .26. The narrow question before us is whether Shrieve

possessed a property interest in a MLD permit. Although Shrieve clearly expected to receive MLD

                                                 11
permits for the 2004-2005 hunting season, his was merely a unilateral expectation. Based on the

statutes and rules we have examined, we hold that Shrieve’s expectation of MLD permits falls short

of the type of right or property interest that gives rise to a due process interest. We also observe that

courts have characterized various other state licenses as privileges, not entitlements. See Tex. Parks

& Wild. Code Ann. § 61.055 (“the most equitable and reasonable privilege to hunt game animals

or catch aquatic animal life”); see also State v. Project Principle, Inc., 724 S.W.2d 387, 390 (Tex.

1987) (license to teach “confers no vested rights”); Texas Dep’t of Pub. Safety v. Schaejbe, 687

S.W.2d 727, 728 (Tex. 1985) (driver’s license is privilege, not right). We overrule Shrieve’s second

issue.


                                             CONCLUSION

                   Having found that the Department did not exceed its statutory authority by issuing

the August letter without prior notice and hearing, and that there was no due process right to

continued receipt of MLD permits prior to the Department’s issuance of the letter, we hold that the

district court did not abuse its discretion by denying the temporary injunction.8 We affirm the order.




                                                 Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: May 5, 2005


         8
             We note that Shrieve’s suit for judicial review of the Department’s action remains pending.

                                                    12
