Opinion issued August 21, 2018




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-17-00755-CV
                             ———————————
   RAUL AMPARO ZUNIGA RODRIGUEZ AND ANA MARIA ORTIZ
MARTINEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES,
AND HEIRS OF THE ESTATE OF RAUL AMPARO ZUNIGA ORTIZ JR.,
    AND JUANA GUADALUPE MARTINEZ, AS NEXT FRIEND OF
 SEBASTIAN ZUNIGA AND WENDY ZUNIGA, HEIRS OF THE ESTATE
          OF RAUL AMAPRO ZUNIGA ORTIZ, Appellants
                                          V.
      CONWAY WAAK JR. AND MARLENE WAAK, D/B/A CARMINE
    CHAROLAIS RANCH, AND CARMINE CHAROLAIS RANCH, Appellees


                     On Appeal from the 155th District Court
                            Fayette County, Texas1


1
       The Texas Supreme Court transferred this appeal from the Court of Appeals for the
       Third District of Texas. Misc. Docket No. 17-9128 (Tex. Sept. 28, 2017); see also
       TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases).
       Because we do not find any controlling authority from the Austin Court of Appeals
       for the issues raised, we apply precedent of this Court. See TEX. R. APP. P. 41.3
                          Trial Court Case No. 2014V-262


                  CONCURRING & DISSENTING OPINION

      In 2005, this Court incorrectly held that the Farm Animals Activities Act (then

called the Equine Act) did not apply to employees. Because the majority upholds

this incorrect holding, I respectfully dissent, in part. Because the trial court granted

greater relief than was sought in its grant of summary judgment, I also concur in the

judgment only, in part.

      As the majority observes, Zuniga died from injuries inflicted by one of the

Waaks’ bulls. His family sued the Waaks. The Waaks filed a motion for summary

judgment, arguing the claims were barred by the Farm Animals Activities Act.

Zuniga’s family responded, urging the trial court to adopt this Court’s holding that

the Farm Animals Activities Act did not apply to employees.2 See Dodge v. Durdin,

187 S.W.3d 523, 530 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The trial court

declined to adopt Dodge and granted summary judgment in full, even though the

Waaks had moved only for a partial summary judgment.




      (requiring reviewing court to “decide the case in accordance with the precedent of
      the transferor court” when courts’ precedents are inconsistent).
2
      The Austin Court of Appeals, from which this case was transferred, does not have
      any controlling authority on this matter.
                                           2
      In their first issue, Zuniga’s family argues the trial court erred by determining

their claims were waived by the Farm Animals Activities Act. In their second issue,

they argue Zuniga was not a “participant” in a farm animal activity as that term is

defined within the act. In their third issue, they argue that there is a fact issue about

whether the Waaks were exempt from the application of the Texas Workers

Compensation Act. All three of these issues concern the Farm Animals Activities

Act and our interpretation of the act’s definition of “participant” in Dodge.

      The act originally was known as the Equine Act and waived liability for

owners of horses. See id. at 527. It has since been updated and renamed to waive

liability for a broad array of animals. See Act of May 23, 2011, 82nd Leg., R.S., ch.

896, 2011 Tex. Gen. Laws, 2288, 2288–90 (codified at TEX. CIV. PRAC. & REM.

CODE ANN. §§ 87.001–.005 (West 2017)). Other than expanding the class of animals

to which it applies, the act remains substantively the same. With the update, the act

applies to activities related to cattle. See CIV. PRAC. & REM. § 87.001(2-a)(B).

      Section 87.003 of the act waives liability against any person for damage

incurred by “a participant in a farm animal activity or livestock show” when the

damage “results from the dangers or conditions that are an inherent risk of a farm

animal activity or the showing of an animal on a competitive basis in a livestock

show.” Id. § 87.003. The statute explicitly identifies inherent danger to include “the

propensity of a farm animal or livestock animal to behave in ways that may result in


                                           3
personal injury or death to a person on or around it.” Id. § 87.003(1). Section 87.004

provides certain exceptions to the waiver of liability in section 87.003. See id.

§ 87.004.

      “Farm animal activity” is defined to include a broad number of activities. See

id. § 87.001(3). It includes, for example, training or teaching activities that involve

a farm animal, boarding a farm animal, “riding, inspecting, evaluating, handling, or

unloading a farm animal belonging to another,” and providing veterinary services.

Id. § 87.001(3)(B)–(D), (G).

      “Participant” is defined to mean, “with respect to a farm animal activity, a

person who engages in the activity, without regard to whether the person is an

amateur or professional or whether the person pays for the activity or participates in

the activity for free.” Id. § 87.001(9). The parties disputed before the trial court

whether Zuniga was a participant.

      Only a few courts have construed the meaning of “participant” under the act.

The first to do so was the Corpus Christi-Edinburg Court of Appeals. See Johnson

v. Smith, 88 S.W.3d 729, 731 (Tex. App.—Corpus Christi 2002, no pet.). In

Johnson, an independent contractor working for the owner of a horse was bit by the

horse after the horse finished breeding. Id. at 730. The court held succinctly that

the plaintiff was a participant, noting that “[a] ‘participant’ is ‘anyone who engages




                                          4
in an equine [now, farm animal] activity.’” Id. at 731 (quoting CIV. PRAC. & REM.

§ 87.001(9)).

      Next, we construed the meaning of “participant” in Dodge. 187 S.W.3d 527–

30. We held that employees of the owner of a farm animal were not included in the

definition of participant. Id. at 530. We presented three grounds to support our

holding: statutory construction of the definition, legislative history, and the

consequences of alternative constructions. Id. at 527–30.

      For statutory construction, we focused on the phrase “without regard to . . .

whether the person pays for the activity or participates in the activity for free” within

the definition. Id. at 528 (citing CIV. PRAC. & REM. § 87.001(9)). We reasoned that,

because employees get paid for activities rather than pay or do them for free, this

phrase suggested that the definition was limited to consumers, not employees. Id.

      We distinguished the contrary holding in Johnson by pointing out that the

plaintiff was an independent contractor, not an employee. Id. (citing Johnson, 88

S.W.3d at 731). Johnson did not rely on the injured party’s status as an independent

contractor to conclude that he was a participant, however. See Johnson, 88 S.W.3d

at 731; see also Johnston v. Smith, No. 13-05-00368-CV, 2008 WL 2208865, at *1

(Tex. App.—Corpus Christi May 29, 2008, no pet.) (mem. op.) (“The trial court

evidently based his holding upon our decision in [Johnson], where, in dicta, we

stated that Johnston was an independent contractor.”).            Further, independent


                                           5
contractors, like employees, get paid for their activities. So this was not a distinction

that aided in supporting our construction of the plain language of the provision.

      In addition, the definition of participant under the act says the general

definition (“a person who engages in the activity”) also applies “without regard to

whether the person is an amateur or professional.” CIV. PRAC. & REM. § 87.001(9).

“Professional” connotes a person being paid for the activity. See Professional, THE

NEW OXFORD AM. DICTIONARY (2d ed. 2005) (“engaged in a specified activity as

one’s main paid occupation”). This does not support our conclusion that the plain

language of the definition indicates the term applies only to people who pay for the

activity or do it for free. See Dodge, 187 S.W.3d at 528.

      For legislative intent, we observed in Dodge that a legislative report had cited

the negative impact of liability for horses on the tourism industry. Id. at 528–29.

We reasoned that, because the tourism industry had been specifically mentioned in

this report and the employer-employee relationship had not been mentioned, the

legislative history suggested liability was only intended to be limited for “tourists

and other consumers of equine activities.” Id. at 529.

      Since Dodge, however, the Supreme Court of Texas has disfavored relying on

legislative history as a basis for construing statutes that are not ambiguous on their

face. See City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008) (“When a

statute’s language is clear and unambiguous, it is inappropriate to resort to rules of


                                           6
construction or extrinsic aids to construe the language.”). The court has admonished

Texas courts to “[c]onstru[e] clear and unambiguous statutes according to the

language actually enacted and published as law—instead of according to statements

that did not pass through the law-making processes, were not enacted, and are not

published as law.” Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011); accord

Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 888 (Tex. App.—Houston [1st

Dist.] 2015, no pet.). “If the text is unambiguous, we must take the Legislature at

its word and not rummage around in legislative minutiae.” Alex Sheshunoff Mgmt.

Servs., L.P. v. Johnson, 209 S.W.3d 644, 652 n.4 (Tex. 2006).

      For consequences of alternative construction, we reasoned in Dodge that to

construe “participant” to include employees under the act “would be to abrogate

well-settled employer duties in Texas under the Labor Code.” 187 S.W.3d at 529.

We focused specifically on the Texas Workers’ Compensation Act and its history.

Id.

      In Keng, the Supreme Court of Texas construed the meaning of a section under

the Workers’ Compensation Act. Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.

2000). The court held that, to construe the statute, it could not construe it in a manner

that implied restrictions not found in the plain language of the statute. Id. In Dodge,

we relied on this holding to mean that the subject-matter of the statute could not be

modified by any other Texas law “without express legislative action.” 187 S.W.3d


                                           7
at 529 (citing Keng, 23 S.W.3d at 349). We reasoned that, “without express

legislative action, we cannot conclude that by enacting the Equine Act, the

Legislature intended to lessen the consequences imposed on employers who choose

not to subscribe to workers’ compensation insurance.” Id. Keng does not support

this assertion. See 23 S.W.3d at 349. Even so, enacting a new set of statutes is

“express legislative action.”

      The Legislature knows how to exempt a law’s application to other laws. In

fact, the Legislature did just that within the Farm Animals Activities Act. “This

chapter does not apply to an activity regulated by the Texas Racing Commission.”

CIV. PRAC. & REM. § 87.002. Had the Legislature wanted to exclude the act’s

application to Texas labor laws, it could have done so. See Entergy Gulf States, Inc.

v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (holding courts presume “that

lawmakers enact statutes with complete knowledge of existing law”). The fact that

the Legislature did not also exclude the act’s application to activities regulated by

the Labor Code suggests, then, that the Legislature meant not to exclude those

activities. See Sommers ex rel. Ala. & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521

S.W.3d 749, 754 (Tex. 2017) (“[W]e analyze a statute as a cohesive, contextual

whole, accepting that lawmaker-authors chose their words carefully, both in what

they included and in what they excluded.”); Steering Comms. for Cities Served by

TXU Elec. v. Pub. Util. Comm’n, 42 S.W.3d 296, 302 (Tex. App.—Austin 2001, no


                                         8
pet.) (applying presumption “that the purposeful inclusion of certain terms in a

statute implies the purposeful exclusion of terms that are absent”).

      Since Dodge, the Supreme Court of Texas has emphasized that, “[i]f a statute

is worded clearly, we must honor its plain language, unless that interpretation would

lead to absurd results.” Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 629

(Tex. 2013). The bar for concluding a plain-faced interpretation of a statute would

lead to absurd results “is high[] and should be.” Id. at 630. “The absurdity safety

valve is reserved for truly exceptional cases, and mere oddity does not equal

absurdity.” Id. “Unintended, improvident, inequitable, over-inclusive, or under-

inclusive consequences of a statute is not proof of absurd results.” Choice! Power,

L.P. v. Feeley, 501 S.W.3d 199, 214 (Tex. App.—Houston [1st Dist.] 2016, no pet.)

(citing Combs, 401 S.W.3d at 630). Instead, the plain meaning of a statute leads to

absurd results only when it is impossible for a rational Legislature to have intended

its result. Combs, 401 S.W.3d at 629.

      It does not lead to an absurd result to exempt injuries sustained from a farm

animal from the liability an employer would otherwise face for its employees. Even

if there were proof that the Legislature did not intend to include employees in its

definition of participants under the act, this is not sufficient. See id. at 630 (holding

unintended consequence does not rise to level of absurd result); Choice! Power, 501

S.W.3d at 214 (holding construing plain language of statute to allow attorneys’ fees


                                           9
for individuals and corporations but not for limited partnerships, even if

unintentional, did not lead to absurd result).

      The most recent case to construe the meaning of “participant” under the act

comes from the Fourteenth Court of Appeals. See Young v. Kim, 373 S.W.3d 776,

780–81 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). In Young, a woman

worked at some stables, helping to take care of horses that various owners kept there.

Id. at 778. While the woman was walking one horse to a paddock, the horse kicked

her. Id. at 779. The owners sought summary judgment on the woman’s claims,

arguing the application of the act. See id. On appeal, the woman cited Dodge to

argue the act did not apply to her. Id. at 780.

      The court “disagree[d] that only consumers of equine activities qualify as

participants in equine activities as defined in the Equine Act.” Id. at 780–81. The

court observed, “The Equine Act is a comprehensive limitation of liability for equine

activities of all kinds.” Id. at 781. It further concluded that the act “applies to all

‘participants.’” Id. “We find nothing in the language of the statute mandating that

its limitation of liabilities applies only to consumer-oriented equine activities.” Id.

The court pointed out that some of the activities defined under the act, such as

assisting in the medical treatment of animals, “does not involve tourists or other

consumers of equine activities.” Id.




                                          10
      The court also cited to law in its analysis recognizing that statutes are

construed according to their plain meaning without regard to extrinsic sources and

that such sources “may not be used to create an ambiguity in a statute.” Id. (citing

Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996 S.W.2d 864, 865–66 (Tex.

1999)).

      The court did not reach our reliance on the Workers’ Compensation Act as a

basis to hold employees were not participants under the Farm Animals Activities

Act. See id. at 781–82. Instead, it concluded that the injured party was an

independent contractor, not subject to this distinction. Id. at 782.

      The majority’s holding does not cure the ills of Dodge. The majority holds

that Zuniga is not a participant because he does not meet the definition of a “farm

animal professional.” See CIV. PRAC. & REM. § 87.001(5). The problem with this

reasoning is that, while it uses the word “professional,” the definition of

“participant” does not use the phrase “farm animal professional.”             See id.

§ 87.001(9). The majority, then, is substituting a general word that is present in the

definition for a defined phrase that is not present and is basing Zuniga’s exemption

on this misconstruction.

      For support that it can substitute “farm animal professional” for

“professional,” the majority relies on the proposition that courts “may not judicially

amend a statute and add words that are not implicitly contained in the language of


                                          11
the statute.” Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988).

Without explaining its reasoning, the majority is suggesting that the Legislature

implicitly meant to write “farm animal professional” when it wrote “professional.”

      The Supreme Court of Texas has admonished courts to sparingly apply the

rule of finding words or phrases “implicitly contained” in a statute. Fitzgerald, 996

S.W.2d at 867. “Only truly extraordinary circumstances showing unmistakable

legislative intent should divert us from enforcing the statute as written.” Id. It strains

credulity to argue that the Legislature defined a specific phrase, used it in other parts

of the act, failed to use it in the place the majority attempts to apply it, and yet made

it implicitly clear that it really intended to use the phrase there. To the contrary, the

use of the phrase in other parts of the act excludes its application here. “When the

Legislature uses a word or phrase in one portion of a statute but excludes it from

another, the term should not be implied where it has been excluded.” R.R. Comm’n

of Texas v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628

(Tex. 2011).     Accordingly, the majority’s construction of the definition of

“participant” is impermissible.

      The majority further relies on stare decisis in reaching its decision. As the

majority correctly observes, stare decisis allows parties to justifiably rely on our past

opinions, which promotes predictability in the law. Martinez v. Hous. McLane Co.,

LLC, 414 S.W.3d 219, 223 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).


                                           12
“‘[T]he doctrine of stare decisis has its greatest force’ in the area of statutory

construction.” Willis v. BPMT, LLC, 471 S.W.3d 27, 33 (Tex. App.—Houston [1st

Dist.] 2015, no pet.) (quoting Sw. Bell Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443,

447 (Tex. 2008)). This is because, if the Legislature does not modify the statute to

abrogate the court’s interpretation, “there is little reason for the court to reconsider

whether its decision was correct.” Mitchell, 276 S.W.3d at 447.

      Even so, “the doctrine is not absolute.” Id. When the reasons for adhering to

our prior holding no longer further the interests of efficiency, fairness, and

legitimacy and when the general interest will suffer less from a departure in the law

than from strict adherence, then we should depart from our prior holding. Id.

“[S]tare decisis does not compel perpetuating an interpretation of [a statute] that . . .

cannot be discerned from the text of the statute.” Marsh USA Inc. v. Cook, 354

S.W.3d 764, 779 (Tex. 2011). Courts are not “compel[led] . . . to follow a past

decision when its rationale does not withstand ‘careful analysis.’” Id. at 779–80

(quoting Arizona v. Gant, 556 U.S. 332, 348, 129 S. Ct. 1710, 1722 (2009)).

      For allowing parties to justifiably rely on our past decisions, I have little

reason to believe that many parties have come to rely on our holding. See Martinez,

414 S.W.3d at 222 (holding stare decisis allows parties to justifiably rely on past

opinions, promoting predictability in law). I do not expect that anyone has relied on

Dodge as a reason to put themselves at greater risk of being injured by farm animals


                                           13
than they otherwise would have. Cf. id. at 223 (declining to revisit rule concerning

injuries at a baseball game when rule had been in effect since early days of baseball

and sports teams had good reason to rely on rule). It cannot be said that any party

to this case relied on Dodge, because this case was transferred from the Austin Court

of Appeals. Prior to the transfer, the parties were not subject to the jurisdiction of

this Court or bound by our rulings. To the contrary, the trial court rejected Zuniga’s

family’s argument to apply Dodge as a ground to deny the motion for summary

judgment.

      For the Legislature modifying the act without changing the definition of

“participant,” there is a split of authority on the definition of “participant.” Compare

Johnson, 88 S.W.3d at 731 with Dodge, 187 S.W.3d at 530.3 We have no reason to

believe the Legislature meant for both, conflicting definitions to apply. Accordingly,

we cannot construe silence by the Legislature as approving one construction over

the other.




3
      Zuniga’s family argues in their reply brief that the Corpus Christi-Edinburg Court
      of Appeals has since endorsed our holding in Dodge. It has not. On appeal after
      remand, the court recognized our holding in Dodge. Johnston v. Smith, No. 13-05-
      00368-CV, 2008 WL 2208865, at *2 (Tex. App.—Corpus Christi May 29, 2008, no
      pet.) (mem. op.). The court held that its mentioning in the previous opinion that the
      plaintiff was an independent contractor was not governed by law of the case and the
      parties were allowed to argue at trial about whether the plaintiff was, in fact, an
      employee. Id. at *2–4. The court did not suggest that this difference would have
      changed its analysis in the prior opinion that the plaintiff’s claims were governed
      by the act. See id.
                                           14
      Because the plain language of the statute does not support our interpretation

in Dodge, because there is no reason to believe parties have come to rely on Dodge,

and because there is no indication that the Legislature has approved our

interpretation, I would not hold that stare decisis prevents this Court from

disapproving of Dodge. Based on the foregoing, I would overrule our holding in

Dodge and hold that employees are not excluded from the definition of “participant”

under the Farm Animals Activities Act. As a result, I would overrule Zuniga’s

family’s second issue.

      In their third issue, Zuniga’s family argues that the Waaks failed to establish

as a matter of law that they were exempt from the Workers’ Compensation Act.

Because I believe we should no longer draw a distinction between employees and

non-employees under the act, I would not need to reach this point.

      In their first issue, Zuniga’s family argues that the trial court erred in granting

summary judgment on their claims based on the Farm Animals Activities Act. The

Waaks moved for partial summary judgment on Zuniga’s family’s claims, arguing

the Farm Animal Activities Act governed Zuniga’s family’s claims and waived their

liability to Zuniga’s family. The Waaks recognized in the motion that the act has

exceptions to the waiver of liability. They did not seek summary judgment on the

application of the waivers. Instead, they asked the court to grant summary judgment

on Zuniga’s family’s claims except to the extent that the claims fell within the


                                          15
exceptions to the Farm Animals Activities Act. Instead, the trial court granted

complete summary judgment on the claims. “A judgment that grants more relief

than a party is entitled to is subject to reversal.” Lehmann v. Har-Con Corp., 39

S.W.3d 191, 200 (Tex. 2001). A party can only obtain summary judgment on the

grounds raised and proved as a matter of law within the motion. See TEX. R. CIV. P.

166a(c).   Because the Waaks expressly stated they were not challenging the

application of any of the exceptions to the waiver of immunity, the trial court erred

by granting complete summary judgment on Zuniga’s family’s claims.                See

Lehmann, 39 S.W.3d at 200. Accordingly, I would sustain Zuniga’s family’s first

issue as it applies to the exceptions to waiver of liability under the Farm Animals

Activities Act and otherwise overrule the issue.

      I would overrule Dodge, uphold the trial court’s determination that the Farm

Animals Activities Act applies to Zuniga in general, and reverse the trial court’s sua

sponte rendering judgment on the application of the act’s exceptions. Because the

majority upholds Dodge and reverses the trial court’s summary judgment in whole,

I dissent, in part, and concur in the judgment only, in part.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Keyes, and Higley.
                                          16
Justice Higley, concurring in part and dissenting in part.




                                          17
