TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-17-00703-CV

Ken Bailey and Bradley Peterson, Appellants v. Carter Smith, Executive Director; Clayton Wolf, Wildlife Division Director; Mitch Lockwood, Big Game Program Director; and Texas Parks & Wildlife Department, Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-15-004391, HONORABLE TIM SULAK, JUDGE PRESIDING CONCURRING AND DISSENTING OPINION On this record, I agree with the Court’s conclusion that the trial court properly dismissed for lack of jurisdiction Peterson’s declaratory judgment and ultra vires claims. I disagree, however, with the Court’s conclusion that the trial court correctly granted summary judgment on Peterson’s due process claims concerning the Texas Parks and Wildlife Code (the Code) and the Department’s rules, see 31 Tex. Admin. Code §§ 65.90–.99 (Tex. Parks & Wildlife Dep’t, Chronic Wasting Disease—Movement of Deer) (the CWD Rules). Specifically, I disagree with the analysis regarding whether Peterson has a property interest in his breeder deer and the conclusion that the Code does not “allow[] common law property rights to arise in breeder deer.” Ante at ___. Our common law tradition—stemming from early English common law and with roots in Roman law—provides that individuals, through the sweat of their brow, may acquire ownership and property rights in wild animals by legally removing them from their natural liberty and making them subject to man’s dominion. See, e.g., State v. Bartee, 894 S.W.2d 34, 41–42 (Tex. App.—San Antonio 1994, no pet.) (describing legal tradition and collecting case authorities). Because the Code does not take away this common law property right, I respectfully dissent.^[1] The Texas Supreme Court has long noted that the preservation of property rights is “one of the most important purposes”—in fact, “[t]he great and chief end”—of government. Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 204 (Tex. 2012) (quoting Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977) and John Locke, Second Treatise of Government Chap. IX, Sec. 124 (C.B. McPherson ed., Hackett Publishing Co. 1980) (1690)). Private property rights “are, in short, a foundational liberty, not a contingent privilege.” Id. at 204 n.34; see Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”). But the decision issued today fails to preserve and protect the fundamental property rights of the deer breeders in their captive-bred white-tailed deer. I recognize that chronic wasting disease (CWD) poses a significant threat to the deer population and for the people of this state. As shown by both the Department’s brief and the amicus brief of various wildlife and hunting associations,2 CWD has potential negative impacts for Texas wildlife, for the rich Texas tradition of hunting deer, and for the properties, businesses, and Texas fisc that derive value and revenue from licensing, leasing hunting rights, and supporting the hunting industry. However, measures to address that threat, while worthy, must be consistent with the rule of law. The legislature, as a representative body of the people, has the power to pass laws further

restricting the captivity of breeder deer, implementing stricter regulations for deer breeder permits, and creating additional protections against CWD, insofar as they are consistent with our

Constitution. And the Department may act within its delegated scope of authority as granted by the legislature. But I cannot agree that the threat of CWD justifies the deprivation of fundamental private property rights without due process contrary to our Constitution and the rule of law.

Because Peterson has a constitutionally protected property interest in his breeder deer, I continue where the Court left off and proceed to the merits of the district court’s summary judgment order on Peterson’s procedural due process claims. Both parties moved for summary judgment, but neither party met its burden to establish that it was entitled to summary judgment as a matter of law. I would therefore affirm the trial court’s denial of Peterson’s motion for summary judgment, but reverse the grant of the Department’s summary judgment motion. Finally, the Court also affirmed the district court’s $425,862.50 attorney’s fee award against Peterson and the deer breeder Ken Bailey, who originally brought suit with Peterson but later nonsuited his claims. But because the attorney’s fee award was based on, at least in part, the Department’s summary judgment success, I would reverse and remand the attorney’s fee award.

I. STANDARD OF REVIEW AND LAW ON DUE PROCESS

We review a trial court’s summary judgment de novo. City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 259 (Tex. 2018) (citing Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 216 (Tex. 2003)). A traditional movant for summary judgment bears the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P. 166a(c); Provident Life, 128 S.W.3d at 215–16). When

both parties move for summary judgment on the same issues, as they did here, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Id. (citing City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000)). When the trial court grants one of the motions but denies the other, we consider the summary judgment evidence presented by both sides, determine all questions presented, and if we determine that the trial court erred, render the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)). When the trial court does not specify the grounds for granting the summary judgment motion, we must uphold the judgment if any of the grounds asserted in the motion and preserved for appellate review are meritorious. Provident Life, 128 S.W.3d at 216.

Here, the summary judgment order granted the Department’s motion and denied

Peterson’s motion, which centered upon Peterson’s procedural due process claims against the Department. Due process rights are provided by both the United States Constitution and the Texas

Constitution. See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19. Because the two clauses are nearly identical, Texas courts “have traditionally followed contemporary federal due process interpretations of procedural due process issues.” Honors Acad., Inc. v. Texas Educ. Agency, 555 S.W.3d 54, 61 (Tex. 2018) (quoting University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929

(Tex. 1995)). Before procedural due process rights attach, however, there must be a liberty or property interest that is entitled to constitutional protection. Id. (citing Klumb v. Houston Mun.

Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015)).

II. DISCUSSION

In a due process claim, we apply a two-part analysis: (1) we determine whether

Peterson has a property interest that is entitled to procedural due process protection; and (2) if so, we determine what process is due. See id.

A. Does Peterson have a property interest in his breeder deer?

“Property interests ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .’” Honors Acad., 555 S.W.3d at 61 (quoting Board of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). A constitutionally protected property interest must be based on a “‘legitimate claim of entitlement’ rather than a mere ‘unilateral expectation.’” Id. (quoting Roth, 408 U.S. at 577).

In Texas, “[a]ll wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state.”3 Tex. Parks & Wild. Code § 1.011(a); see also Nicholson v. Smith, 986 S.W.2d 54, 60 (Tex. App.—San Antonio 1999, no pet.)

(“Meaning ‘animals of a wild nature or disposition,’ ferae naturae is a common law doctrine tracing its origins back to the Roman empire whereby wild animals are presumed to be owned by no one specifically but by the people generally. Specifically ferae naturae provides that wild animals

belong to the state[.]” (citing Bartee, 894 S.W.2d at 41)). Thus, “no individual property rights [in wild animals] exist as long as the animal remains wild, unconfined, and undomesticated.”

Hollywood Park Humane Soc’y v. Town of Hollywood Park, 261 S.W.3d 135, 140 (Tex. App.—San

Antonio 2008, no pet.).

Under Texas common law, however, “property rights in wild animals can arise when an animal is legally removed from its ‘natural liberty’ and subjected to ‘man’s dominion.’”4 Id.

(quoting Nicholson, 986 S.W.2d at 60); see Jones v. State, 45 S.W.2d 612, 614 (Tex. Crim. App.

1931) (“As a general rule, there is no individual property in wild animals or fish so long as they remain wild, unconfined, and in a state of nature, but wild animals become property when removed from their natural liberty and made subjects of man’s dominion.”); Coastal Habitat All. v. Public

Util. Comm’n, 294 S.W.3d 276, 287 (Tex. App.—Austin 2009, no pet.) (stating converse proposition that “under state law, no vested property interest exists in wild animals” because “wild animals[]

belong to the State, and no individual property rights exist in them as long as they remain wild, unconfined, and undomesticated”); Bartee, 894 S.W.2d at 41 (“Unqualified property rights in wild animals can arise when they are legally removed from their natural liberty and made the subject of man’s dominion.”); Wiley v. Baker, 597 S.W.2d 3, 5 (Tex. App.—Tyler 1980, no writ) (“Unqualified property rights in wild animals can arise when removed from their natural liberty and made subjects of man’s dominion.”); Lone Star Gas Co. v. Murchison, 353 S.W.2d 870, 875–76 (Tex.

App.—Dallas 1962, writ ref’d n.r.e.) (“From the beginning, wild animals have been regarded as quasi property of the entire human race. . . . [E]xclusive property in birds and wild animals becomes vested in the person capturing or reducing them to possession. But unless killed, this is a

qualified property, for when restored to their natural wild and free state, the dominion and individual proprietorship of any person over them is at an end and they resume their status as common property.” (quoting Hammonds v. Central Ky. Nat. Gas Co., 75 S.W.2d 204, 206

(Ky. 1934), overruled on other grounds by Texas Am. Energy Corp. v. Citizens Fid. Bank & Tr. Co., 736 S.W.2d 25 (Ky. 1987)); see also Hollywood Park Humane Soc’y v. Town of Hollywood Park, No. Civ.A.SA03CA1312-XR, 2004 WL 390807, at *5 (W.D. Tex. Jan. 23, 2004) (“However, it is legally possible for an individual to have qualified property rights in a wild animal. . . . These property rights are often referred to as qualified, however, because they are lost if the animal regains its liberty.” (applying Texas common law)).

The Court nevertheless determines that the Code does not “allow[] common law property rights to arise in breeder deer.” Ante at ___. For this proposition, the Court relies primarily

on two statutory provisions. First, the legislature has mandated that “[n]o person may capture, transport, or transplant any game animal or game bird from the wild in this state unless that person has obtained a permit to trap, transport, and transplant from the department.” Tex. Parks & Wild.

Code § 43.061(a); see id. § 63.002 (“No person may possess a live game animal in this state for any purpose not authorized by this code.”). Second, the legislature, in 1997, added a provision making

clear that erecting a high fence does not affect wild animals’ “status . . . as property of the people of this state.” See Act of May 31, 1997, 75th Leg., R.S., ch. 1256, § 123, 1997 Tex. Gen. Laws 4732, 4757 (codified at Tex. Parks & Wild. Code § 1.013). And the Department goes further than the Court, proposing a theory of absolute state ownership of wildlife and arguing that “no individual may

own wildlife” and “deer are not amenable to private ownership” because the legislature, in 1991, defined “wild” in terms of “species, including each individual of a species.”5 See Act of May 24, 1991, 72d Leg., R.S., ch. 424, § 1, 1991 Tex. Gen. Laws 1587, 1587 (codified at Tex. Parks & Wild. Code

§ 1.101(4)). As explained below, however, the statutory provisions the Court relies on do not prevent a deer breeder who holds a permit from acquiring ownership of breeder deer through legal

captivity under the common law, and the Department is incorrect that the common law rule of ownership is now “obsolete” because “the Code defines ‘wild’ in terms of a species’[s] characteristics, not an individual animal’s freedom.”

1. The Court’s analysis

As already noted, the common law rule is that an individual acquires ownership and property rights in a wild animal when it is “removed from its ‘natural liberty’”—i.e., through legal capture or some other legal means—“and subjected to ‘man’s dominion.’” Hollywood Park, 261 S.W.3d at 140 (quoting Nicholson, 986 S.W.2d at 60). Additionally, the Code expressly

authorizes the removal of a breeder deer from its natural liberty—“breeder deer may be held in captivity for propagation in this state”—when “a deer breeder’s permit is issued by the department.”

Tex. Parks & Wild. Code § 43.364.

The Court, however, argues that the Code “is clear that deer breeders have no vested

property interest in their breeder deer” and does not allow “common law property rights to arise in breeder deer.” Ante at ___. I disagree because the Code does not “clearly” express legislative intent to abrogate the common law principle providing property rights to deer breeders who legally remove breeder deer from their natural liberty and subject them to man’s dominion, as I explain more fully below. See Dealers Elec. Supply Co. v. Scroggins Constr. Co., 292 S.W.3d 650, 660 (Tex. 2009)

(“But abrogation of common-law rights is disfavored, and absent clear legislative intent we have declined to construe statutes to deprive citizens of common-law rights.”); Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex. 2007) (“[S]tatutes can modify common

law rules, but before we construe one to do so, we must look carefully to be sure that was what the Legislature intended.”); Cash Am. Intern. Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (“A statute

that deprives a person of a common-law right ‘will not be extended beyond its plain meaning or applied to cases not clearly within its purview.’ . . . We have consistently declined to construe statutes to deprive citizens of common-law rights unless the Legislature clearly expressed that intent.” (quoting Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969))).

Moreover, the Court’s analysis does not take into account the temporal nature of legislative enactments when it “constru[es] all the[] provisions together against the backdrop of [s]ection 1.011 and the common law” to conclude that “breeder deer are public property” and “deer breeders do not acquire common law property rights in them.” See ante at ___ (citing Marino

v. Lenoir, 526 S.W.3d 403, 409 (Tex. 2017)). If the legislature abrogated the common law, the abrogation must have occurred at a specific time by a specific statutory enactment. At issue then is when did the legislature intend to abrogate established common law principles and with what statutory provisions did it clearly express and effectuate that intent. The Court, however, melds statutory provisions that were enacted at different times without identifying which specific provision

the legislature enacted at a specific time to clearly express and effectuate its intent to abrogate the common law principle providing for private ownership of breeder deer through legal captivity. See

ante at ___ (citing Tex. Parks & Wild. Code §§ 1.011(a), 1.013, 43.061(a), 43.351(1), 43.357(a), 43.364, 43.366, 63.001(a), 63.002). Thus, for example, it is unclear if the Court considers the prohibitions on possession of breeder deer, see Tex. Parks & Wild. Code §§ 43.061(a), 63.002, as

abrogating the common law before the legislature’s 1997 enactment that fences do not affect the property status of the deer, see id. § 1.013, or if it was only with the culminating 1997 enactment regarding fences that the common law was abrogated construed in light of the earlier statutory prohibitions on possession.^[6] See ante at ___. If the former, then the 1997 enactment as to the fences would play no part in the analysis of whether the legislature abrogated the common law with the earlier enacted statutes. If the latter, then it is the 1997 enactment that must clearly demonstrate the legislature’s intent to abrogate the common law. But, as I explain below, no statutory provision in the Code reflects the legislature’s intent to abrogate the common law as to the private ownership of breeder deer and thus at no specific time did the legislature effectuate such an intent through a legislative enactment.

The Code expressly provides that “the holder of a valid deer breeder’s permit” may

(1) “engage in the business of breeding deer in the immediate locality for which the permit was issued;” and (2) “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale.” Tex. Parks & Wild. Code § 43.357(a); see also id. § 43.364. And the Code does not prohibit ownership acquired pursuant to common law principles. See id. § 43.364 (“All breeder deer and increase from breeder deer are under the full force of the laws of this state pertaining to deer.”); see also id. § 43.366 (“[B]reeder deer held under a deer breeder’s permit are

subject to all laws and regulations of this state pertaining to deer except as specifically provided in this subchapter.” (emphasis added)). That breeder deer must be “legally held under a permit,” id. § 43.351(1), which regulates the possession and use of the breeder deer, does not deprive the deer breeder of its common law property interest in the breeder deer through legal captivity and dominion.

See, e.g., Bartee, 894 S.W.2d at 47–48 (Rickhoff, J., concurring) (noting that “the state has not defined wild animals so as to absolutely exclude from ownership all white-tailed deer within the boundaries of the state” and that analogously “[j]ust because the state heavily regulates personalty such as handguns or automobiles, it does not follow that individuals may not own them”).7

Moreover, although section 1.013 addresses whether fences affect the property status of wild animals, the provision does not speak to whether “captivity” affects the property status:

This code does not prohibit or restrict the owner or occupant of land from constructing or maintaining a fence of any height on the land owned or occupied, and an owner or occupant who constructs such a fence is not liable for the restriction of the movement of wild animals by the fence. The existence of a fence does not affect the status of wild animals as property of the people of this state.

Tex. Parks & Wild. Code § 1.013 (emphasis added). Section 1.013 limits its discussion to the existence of fences and therefore does not prevent ownership through “captivity” and possession of wildlife. See id. The Code defines “[c]aptivity” as “the keeping of a breeder deer in an enclosure suitable for and capable of retaining the breeder deer it is designed to retain at all times under reasonable and ordinary circumstances and to prevent entry by another deer,” id. § 43.351(3), but requires that “[a] single enclosure for breeder deer may not contain more than 100 acres,”

id. § 43.360. Importantly, however, the captivity must be under permit pursuant to the laws of the state—to acquire ownership in wild animals through captivity under common law, the animals must

be removed from their natural liberty legally. See Jones, 45 S.W.2d at 614 (qualifying, on rehearing, original opinion’s proposition that “wild animals become property removed from their natural liberty and made subjects of man’s dominion” with the additional proposition “when such animals were

‘legally’ removed”); see also Bilida v. McCleod, 211 F.3d 166, 173 (1st Cir. 2000) (collecting cases and holding “that a claimant has no property interest in ‘per se contraband,’ i.e., something that it

is illegal merely to possess”); Allen v. Pennsylvania Soc’y for Prevention of Cruelty to Animals, 488 F. Supp. 2d 450, 466 (M.D. Pa. 2007) (recognizing that when animal “property was contraband” there could be “no legitimate property interest in the animals”).

Thus, for example, section 1.103 would prevent a person lacking a permit from acquiring ownership in deer contained within high fences because the existence of a fence would not change the property status of the deer and any captivity or possession of the deer would be illegal.

See Tex. Parks & Wild. Code §§ 43.364 (“All breeder deer and increase from breeder deer . . . may

be held in captivity for propagation in this state only after a deer breeder’s permit is issued by the department under this subchapter.”), 63.002 (prohibiting possession of “a live game animal,”

including white-tailed deer, except for purposes “authorized by this code”); see also Bartee, 894 S.W.2d at 41 (“A wrongful reducing to possession of creature feræ naturæ cannot form the basis of ownership.” (quoting 3A C.J.S. Animals § 8 (1973))); Bilida, 211 F.3d at 173–74 (“State law makes illegal possession of raccoons taken from the wild without a permit issued by the Department.

. . . This amounts to saying that, under state law, [the pet raccoon] could not be reduced to private ownership and lawfully possessed as property without a permit. Needless to say, this would be a different case if Bilida did have a permit, but she no longer claims ever to have had one.” (emphasis added)); 3B C.J.S. Animals § 10 (2019) (“Wild animals reduced from a wild state in compliance with the applicable law become the property of the individual.” (emphasis added)). But, on the other hand, the Code authorizes deer breeders with a valid permit to take captive-bred white-tailed deer

pursuant to the statutory definition of “captivity,” see Tex. Parks & Wild. Code § 43.357(a)(2), and legal captivity leads to the acquisition of property interests in wild animals under common law principles, see, e.g., Hollywood Park, 261 S.W.3d at 140.

Accordingly, section 1.013—or, for that matter, the Code—is not inconsistent with acquiring property interests in captive-bred white-tailed deer under the common law. The provisions relied on by the Court do not represent “clear legislative intent” to deprive deer breeders of their

rights under common law to acquire property rights in their breeder deer. See Dealers Elec. Supply, 292 S.W.3d at 660; Cash Am., 35 S.W.3d at 16. It is not the existence of a fence that affects the property status of the breeder deer, but whether the deer are possessed in legal “captivity” in accordance with common law principles and pursuant to the statutory scheme—i.e., held under a legal permit and “in an enclosure [that does not contain more than 100 acres] suitable for and capable of retaining the breeder deer it is designed to retain at all times under reasonable and ordinary circumstances and to prevent entry by another deer.” Tex. Parks & Wild. Code §§ 43.351(3), .360.

Because it is undisputed that Peterson legally held the breeder deer under permit and in captivity, I

conclude that Peterson acquired a constitutionally protected property interest in the breeder deer and therefore respectfully dissent from the Court’s contrary conclusion.^[8]

2. The Department’s analysis

The Department, on the other hand, relies on the legislature’s 1991 enactment that statutorily defines “wild” to mean “a species, including each individual of a species, that normally lives in a state of nature and is not ordinarily domesticated.” Id. § 1.101(4). The Department claims that deer breeders holding permits are bailees, and the people of the state, acting through the Department, are the bailors. Deer breeders, as bailees, “have only a possessory right that they may assert against third parties who steal from them,” “[t]hey do not have ownership or any rights superior to the State.” The Department does not dispute that Texas common law and the statutory framework permitted private ownership through legal captivity and dominion of wild animals before

1991 because “the Legislature had not yet . . . defined ‘wild’ in terms of species.” But the Department argues that with the 1991 statutory enactment of the definition of “wild” the state acquired absolute ownership of all wildlife, thereby making the common law rule “obsolete.”

I agree with the Department that the common law provided for private ownership through legal captivity and dominion before 1991. But I disagree that the common law rule became

“obsolete” in 1991. If private ownership is per se prohibited because “wild” is defined in terms of “species” and wild animals are therefore owned by the state regardless of confinement, then the later

1997 statutory enactment declaring that fences do not affect wild animals’ status as property of the people of this state would be redundant and mere surplusage. See Tex. Gov’t Code § 311.021

(providing that it is presumed entire statute is intended to be effective); TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016) (“[W]e consider the statute as a whole, giving effect to

each provision so that none is rendered meaningless or mere surplusage.”). The fact that the legislature specified that the existence of fences does not affect property status, implies that other conditions—e.g., legal captivity under permit—could affect the property status of wild animals under

common law principles, notwithstanding the 1991 statutory enactment defining “wild” in terms of species’s characteristics. See Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex.

1999) (recognizing “the doctrine of expressio unius est exclusio alterius, the maxim that the expression of one implies the exclusion of others”).

Moreover, statutory provisions in the Texas Health and Safety Code expressly

contemplate the ownership of wild animals by entities other than the state, which is contrary to the Department’s theory that the state has absolute ownership in wild animals.^[9] For example, section 822.103, enacted in 2001, contemplates that a person may “own . . . a dangerous wild animal” if “the person holds a certificate of registration for that animal issued by an animal registration agency.”10 Tex. Health & Safety Code § 822.103. But under the Department’s theory, a person could not own a dangerous wild animal pursuant to section 822.103 because section 1.011(a) of the Code prevents any private ownership of any wild animal. Compare id., with Tex. Parks

& Wild. Code § 1.011(a). And the Department’s theory would further upend current property expectations expressly contemplated by chapter 822—e.g., the ownership of wild animals by circus companies, biomedical research facilities, zoos and aquariums, and colleges and universities as mascots. See, e.g., Tex. Health & Safety Code § 822.102(a)(6), (8), (10), (11) (exempting these

entities from subchapter E’s requirements); see also id. §§ 822.107–13 (imposing requirements, restrictions, and liabilities on “[a]n owner of a dangerous wild animal”).11

At issue here, then, is what it means for wild animals—as defined in terms of species’s characteristics—to be “the property of the people of this state,” see Tex. Parks & Wild.

Code §§ 1.011(a), .101(4), and whether this precludes deer breeders from having private property

rights through legally capturing white-tailed deer in compliance with the Code. “[P]roperty of the people of this state” is not defined by the Code, although our sister court has explained that “[t]he phrase ‘property of the people of this state’ has been interpreted . . . to mean that ownership of wild animals is in ‘the state’ or belongs to ‘the state.’” Hollywood Park, 261 S.W.3d at 140. For this proposition, Hollywood Park cites Bartee, see id., and Bartee states:

With regard to the ownership of wild animals, we do not find that the various statutes enacted over the years have departed from the common law. The statutory phrase ‘property of the people of this state’ does not appear to have been interpreted by our courts. Despite its use in various statutes over the years, our courts have consistently referred to the ownership of wild animals as being in ‘the state’ or belonging to ‘the state.’

894 S.W.2d at 42. But Bartee relies on three cases that are not interpreting the phrase “the property of the people of this state” in the statute, rather they are discussing common law principles. See

Wiley, 597 S.W.2d at 5 (“The common law provides that animals ferae naturae belong to the state.”

(citing Jones, 45 S.W.2d at 613–14)); see also Dobie v. State, 48 S.W.2d 289, 290 (Tex. Crim. App.

1932) (describing ownership of wild game as “in the state”); Jones, 45 S.W.2d at 613 (describing

“general principles” of common law and stating “animals ferae naturae belong to the state”). And one of the cases—Dobie—qualifies its interpretation of public ownership as follows:

The ownership of wild game, so far as it is capable of ownership, is in the state for the benefit of all its people in common, and it is within the police power of the state Legislature, subject to constitutional restrictions, to make such general or special laws as may be reasonably necessary for the protection of public rights in such game, and within such power is the right to regulate the method of taking or hunting game in the state.

Id. (emphasis added). Dobie effectively questions whether wild game is even “capable of ownership” and therefore does not stand for the proposition that wild game is owned by the state as the term “owned” is traditionally conceived.

Moreover, section 1.011(a) declares wild animals as property “of the people of this state,” not property of the state. See Tex. Parks & Wild. Code § 1.011(a). Wild animals belong to the state as a sovereign, not as a proprietary owner, so far as wild animals are capable of ownership.

See, e.g., Ex parte Blardone, 115 S.W. 838, 840 (Tex. Crim. App. 1909) (“[T]he common ownership of game, which otherwise would remain in the body of the people, is lodged in the state, to be exercised, like all other governmental powers, in the state in its sovereign capacity, to be exercised in trust for the benefit of the people, and subject, of course, to such regulations and restrictions as

the sovereign power may see fit to impose. Such regulations appropriately fall within the domain of the police power of the state.” (emphasis added)); 3B C.J.S. Animals § 9 (2019) (“The State’s ownership of wild animals is in its sovereign, as distinguished from its proprietary, capacity, and it may regulate the taking and reduction to possession of wild animals.”). Thus, we must inquire into what it means for a sovereign in its sovereign capacity to “own” wild animals, insofar as wild animals are capable of ownership, and whether this precludes private ownership.

“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.” American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (quoting McBride v. Clayton, 166 S.W.2d 125, 128

(Tex. 1943)); see also Cities of Conroe, Magnolia, & Splendora v. Paxton, 559 S.W.3d 656, 669

(Tex. App.—Austin 2018, pet. filed) (“Although we generally ascribe the ‘plain’ or ‘ordinary’ meaning to the words chosen, we must also take account of . . . technical meanings apparent from statutory or jurisprudential context.”). And “we may . . . look to federal cases for guidance on the meaning of terms not otherwise defined.” Paxton v. City of Dallas, 509 S.W.3d 247, 258

(Tex. 2017).

Here, the development of the U.S. Supreme Court’s understanding of the theory of public ownership of wild animals from Geer v. Connecticut, 161 U.S. 519 (1896), through Hughes v. Oklahoma, 441 U.S. 322 (1979), overruling of Geer is instructive,12 and the legislature is

presumed to have enacted the statutory definition of “wild” in 1991 with knowledge of the U.S. Supreme Court’s jurisprudential statements as to public ownership of wild animals. In describing this transition, the U.S. Supreme Court explained that “[i]n expressly overruling Geer . . .

this Court traced the demise of the public ownership theory and definitively recast it as ‘but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve

and regulate the exploitation of an important resource.’” Sporhase v. Nebraska, ex rel. Douglas, 458 U.S. 941, 950–51 (1982) (quoting Hughes, 441 U.S. at 334); see Hughes, 441 U.S. at 341 & n.5

(Rehnquist, J., dissenting) (noting that State does not own wild creatures within its borders “in any conventional sense of the word” and even “[t]he Geer Court itself did not use the term ‘ownership’ in any proprietary sense”); see also Baldwin v. Fish & Game Comm’n, 436 U.S. 371, 385 (1978)

(recognizing that “the States’ interest in regulating and controlling those things they claim to ‘own,’ including wildlife, is by no means absolute”); Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 284

(1977) (positing that “[n]either the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture” and that the “‘ownership’ language” of earlier cases “must be understood as no more than a 19th-century legal fiction expressing the importance to its people that a State have power to

preserve and regulate the exploitation of an important resource”); Toomer v. Witsell, 334 U.S. 385, 402 (1948) (“The whole ownership theory, in fact, is now generally regarded as but a fiction

expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.”).

The theory of public ownership of wildlife was questioned because there is no basis for state ownership as understood in the traditional proprietary sense. See, e.g., Baldwin, 436 U.S. at 392 (Burger, C.J., concurring) (“A State does not ‘own’ wild birds and animals in the same way that it may own other natural resources such as land, oil, or timber.”). The rationale underlying the demise of the public ownership theory is summarily stated by Justice Holmes in Missouri v. Holland:

“To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership.” 252 U.S. 416, 434 (1920); see Idaho ex rel. Evans v. Oregon, 462 U.S. 1017, 1025 (1983) (“[N]o State has a pre-existing legal right of ownership in the fish[.]” (citing Hughes, 441 U.S. at 329–36)); Geer, 161 U.S. at 540

(Field, J., dissenting) (“The wild bird in the air belongs to no one, but when the fowler brings it to the earth and takes it into his possession, it is his property. He has reduced it to his control by his

own labor, and the law of nature and the law of society recognize his exclusive right to it.”); Bartee, 894 S.W.2d at 47 (Rickhoff, J., concurring) (noting “property in [wild] animals is acquired by

occupance only” and “[a]s a general rule, wild fish, birds and animals are owned by no one[, p]roperty rights in them are obtained by reducing them to possession” (first quoting Pierson v. Post, 3 Cai R. 175, 1805 WL 781 (N.Y. Sup. Ct. 1805); then quoting United States v. Long Cove

Seafood, Inc., 582 F.2d 159, 163 (2d Cir. 1978))); see also Hollywood Park, 2004 WL 390807, at

*5 (“Deer, like fish, are ferae naturae, capable of ownership only by possession and control.”);

3B C.J.S. Animals § 8 (2019) (“No one owns animals in the proprietary sense when they are in their natural habitat unless and until they are reduced to something akin to possession.”);

Richard A. Epstein, The Modern Uses of Ancient Law, 48 S.C. L. Rev. 243, 251 & n.28 (1997)

(noting that Geer majority relied on “early Roman sources, which were duly mistranslated from res nullius to res communis”; “[t]he better conclusion was that because wild animals had no

owner, they were considered unowned”); Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73, 74 (1985) (“For the common law, possession or ‘occupancy’ is the origin of property.”). This explanation provides context to the qualification enunciated in the Dobie opinion that “ownership of wild game, so far is it capable of ownership, is in the state for the benefit of all its people in common.” Dobie, 48 S.W.2d at 290.

In short, “[a] state does not stand in the same position as the owner of a private game

preserve and it is pure fantasy to talk of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures

until they are reduced to possession by skillful capture.” Toomer, 334 U.S. at 402; see also Baldwin, 436 U.S. at 405 (Brennan, J., dissenting) (“The lingering death of the [state-ownership] doctrine as applied to a State’s wildlife, begun with the thrust of Mr. Justice Holmes’ blade in Missouri v. Holland, 252 U.S. [at 434] . . . and aided by increasingly deep twists of the knife in [intervening cases] finally became a reality in Douglas v. Seacoast Products, Inc., [431 U.S. at 284].”).

Following the understanding of “public ownership” enunciated in these cases, the statutory provisions declaring that wild animals are the “property of the people of this state” and defining “wild” to be a species’s characteristic should not be understood as a traditional conception of ownership—i.e., proprietorship—over all animals within the species regardless of possession, but

rather as a fiction expressive in legal shorthand of the importance to its people that the state has the power to preserve and regulate the exploitation of an important resource. See Clajon Prod. Corp. v. Petera, 854 F. Supp. 843, 851 (D. Wyo. 1994) (interpreting Wyoming’s statutory declaration that state owns wildlife as “such a claim of ownership [that] is nothing more than a shorthand expression

for preserving the state’s power to regulate natural resources within its borders” (citing Hughes, 441 U.S. at 335–365)), aff’d in part, appeal dismissed in part, 70 F.3d 1566 (10th Cir. 1995); Simpson v. Dep’t of Fish & Wildlife, 255 P.3d 565, 573 (Or. Ct. App. 2011) (interpreting similar statute as “the state’s property interest in wildlife is sovereign, not proprietary” and that it follows that “the state’s property interest in wildlife under ORS 498.002(1) is not a proprietary or possessory interest that amounts to ownership, as ownership is commonly understood” (citing Or. Rev. Stat.

§ 498.002(1))); Potts v. Davis, 610 A.2d 74, 75 n.2 (Pa. Commw. Ct. 1990) (interpreting similar statute as “‘ownership language’” that should be understood “‘as no more than a 19th-century legal fiction’” (citing Pa. Cons. Stat. § 103; quoting Douglas, 431 U.S. at 284;)), aff’d, 610 A.2d 42 (Pa.

1992) (per curiam).13

Thus, I conclude that deer breeders with a permit have a property interest in their breeder deer under common law principles after legally taking the deer from their natural liberty and keeping them in captivity pursuant to state law, while the state maintains sovereign “ownership”—as a legal fiction and distinguished from proprietary ownership.^[14] See Hughes, 441 U.S. at 335–36 (“At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways

not inconsistent with the commerce clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership.”); Munn

v. State of Illinois, 94 U.S. 113, 134 (1876) (“Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.”); Bartee, 894 S.W.2d at 47 (Rickhoff, J., concurring) (“Federal and state authority over wildlife is not based on ownership, but upon the state’s police power to preserve and regulate an important resource.” (citing Toomer, 334 U.S. at 402)).15 In sum, sovereign “ownership” describes the state’s authority to regulate wildlife for the benefit of the people in a manner consistent with our

Constitution and the laws of our state, but sovereign ownership of wildlife is not proprietary ownership and therefore does not necessarily preclude an individual from acquiring ownership through legal possession and captivity of wild animals.^[16] B. What process is due?

Having established that Peterson has a constitutionally protected property interest, I now turn to what process is due and whether the trial court properly granted the Department’s motion for summary judgment and denied Peterson’s motion for summary judgment as to Peterson’s due process claims. As an initial matter, I note that “[t]he constitutional sufficiency of procedures

provided in any situation, of course, varies with the circumstances.” Harrell v. State, 286 S.W.3d 315, 319 (Tex. 2009) (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)). Thus, an essential component of a due process claim is determining the amount of process due given the circumstances.

To determine the amount of process due, three Eldridge factors are balanced: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 319–20 (quoting Matthews v. Eldridge, 424 U.S. 319, 334 (1976)).

Peterson’s motion for summary judgment, however, did not cite, analyze, or provide evidence of these factors establishing the amount of process due, given his circumstances. Nor did

Peterson address these factors on appeal. Because he did not establish the amount of process due, Peterson failed to meet his burden of establishing as a matter of law that he is entitled to

summary judgment on his procedural due process claims. See Tex. R. Civ. P. 166a; City of Richardson, 539 S.W.3d at 259. The district court did not err in denying Peterson’s motion for summary judgment.

In addition to arguing that Peterson has no constitutionally protected property interest, the Department in its motion for summary judgment argued that “even if [Peterson] had a protected

interest and even if he had been denied a transfer permit, the deer-breeder industry’s interest in prompt permits would outweigh the incidental benefit of the burdensome procedures Peterson

demands: a contested-case hearing for transfer permits.”17 Assuming without deciding that the Department had sufficiently established that the Eldridge factors weigh against Peterson’s proposed procedures, the Department nevertheless has not met its summary judgment burden to establish that the procedures already established under the Code and the CWD Rules satisfy the amount of process due. In other words, demonstrating that Peterson’s putatively proposed procedures are unduly burdensome and more than the amount of process due does not meet the Department’s burden to establish as a matter of law that it is entitled to summary judgment because the current established process under the Code and CWD Rules satisfies the amount of process due.^[18] Because the Department failed to meet its burden to establish as a matter of law that it was entitled to summary

judgment on Peterson’s due process claims, I conclude that the district court erred in granting the Department’s summary judgment motion and would reverse the order as to that issue.^[19] See Tex.

R. Civ. P. 166a; City of Richardson, 539 S.W.3d at 259.

C. Attorney’s fees

As to the question of attorney’s fees, I agree with the Court that the district court had jurisdiction to award attorney’s fees under the Uniform Declaratory Judgment Act (UDJA), including against Bailey. But “[w]here the extent to which a party prevailed has changed on appeal, our practice has been to remand the issue of attorney fees to the trial court for reconsideration of what is equitable and just.” Morath v. Texas Taxpayer & Student Fairness Coal., 490 S.W.3d 826, 885

(Tex. 2016) (remanding attorney’s fee issue “as to all parties”); see Tex. Civ. Prac. & Rem. Code

§ 37.009; Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 637–38

(Tex. 1996). Because my disposition on appeal would substantially affect the district court’s judgment, I would reverse the district court’s order on attorney’s fees and remand so that the trial court can address what attorney’s fees, if any, should be awarded under the UDJA. See Morath, 490 S.W.3d at 885; Barshop, 925 S.W.2d at 637–38; Bank of N.Y. Mellon v. Soniavou Books, LLC, 403 S.W.3d 900, 907 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

III. CONCLUSION

For these reasons, I concur with the Court’s holding affirming the dismissal of Peterson’s declaratory judgment and ultra vires claims, but respectfully dissent from affirming the district court’s order granting the Department’s summary judgment motion, awarding attorney’s fees

to the Department, and denying Peterson’s motion for attorney’s fees. I would instead reverse and remand as to those issues.

__________________________________________ Melissa Goodwin, Justice Before Justices Goodwin, Baker, and Smith Filed: June 28, 2019