KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

September 12, 201 7 

The Honorable Richard E. Glaser 

Fannin County Criminal District Attorney 

101 East Sam Rayburn Drive, Suite 301 

Bonham, Texas 75418 

Dear Mr. Glaser: 

Opinion No. KP-0164 

Re: The validity of local stock law 

elections held under statutes in effect in 1918 

(RQ-0154-KP) 

You ask about the validity of local stock law elections held in 1918 under statutes then in 

effect. 1 You inform us that Fannin County conducted two countywide local stock law elections in 

1918 to determine whether certain animals may run at large, one concerning hogs, sheep, and 

goats, and the other concerning horses, jacks, jennets, and cattle. Request Letter at 1-2. You 

explain that those elections resulted in the adoption of stock laws to prohibit the specified classes 

of animals from running at large. Id. at 1. You state that you examined the commissioners court 

minutes concerning these elections and concluded that they complied with the stock law election 

statutes as they existed at the time of the elections. Id. at 1-2. You ask for an attorney general 

opinion to settle a recurring question asked of your office, "whether Fannin County is currently an 

open or closed range county." Id. at 2. 

We begin with the principle that Texas is a free-range state, meaning that it does not 

recognize a common-law duty requiring owners of livestock to fence in their livestock. Gibbs v.' 

Jackson, 990 S.W.2d 745, 747 (Tex. 1999). The Texas Constitution delegates to the Legislature 

the power to change the free-range rule by enacting statutes for the regulation and fencing of 

livestock. Id. at 748 (citing TEX. CONST. art. XVI, § 23). The Legislature has enacted two kinds 

of exceptions to the general free-range. rule: statutes with statewide application, and statutes 

authorizing local option stock laws. First, the Legislature enacted a statute with statewide 

applicability prohibiting an owner or a person who has "responsibility for the control of a horse, 

mule, donkey, cow, bull, steer, hog, sheep, or goat [to] knowingly permit the animal to traverse or 

roam at large, unattended, on the right-of-way of a highway." TEX. AGRIC. CODE§ 143.102; see 

also id.§ 143.101 (defining "highway" to mean "a U.S. highway or a state highway in this state, 

but ... not ... a numbered farm-to-market road"). Second, the Legislature authorized local option 

stock laws, whereby a county or portion of a county may decide by election whether to adopt a 

1

Letter from Honorable Richard E. Glaser, Fannin Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. 

Att'y Gen. at 1 (Mar. 17, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request 

Letter"). 
The Honorable Richard E. Glaser - Page 2 (KP-0164) 

law prohibiting owners from allowing certain classes oflivestock to run at large in the locality. 

See id.§§ 143.021-.082 (subchapters B through D). 

The statutes authorizing local option stock laws date back to 1876, and over the years the 

Legislature "has repeatedly rewritten the scope of those laws." Gibbs, 990 S.W.2d at 748. In 

1981, the Legislature enacted the Agriculture Code, consolidating the local option stock law 

statutes into chapter 143, subchapters B through D, of the Agriculture Code and repealing the prior 

statutes. See Act of May 22, 1981, 67th Leg., R.S., ch. 388, § 1, secs. 143.021-.082, 1981 Tex. 

Gen. Laws 1012, 1340-50 (the "Act"). You ask whether the Act effectively repealed local stock 

laws adopted by elections held prior to 1981 under statutes then in effect. Request Letter at 1. 

The Legislature enacted the Agriculture Code in 1981 as part of the State's continuing 

statutory revision program. TEX. AG RIC. CODE § 1.001; Act § 5 at 1489. The Act does not contain 

its own saving provisions concerning prior law; therefore, the general saving provisions of the 

Code Construction Act govern the Act adopting the Agriculture Code. See TEX. AGRIC. CODE 

§ 1.002 (providing that the Code Construction Act applies to the Agriculture Code); TEX. Gov'T 

CODE § 311.031 (setting out the general saving provisions); see also Quick v. City of Austin, 7 

S.W.3d 109, 130 (Tex. 1998) (stating that courts "presume that the general savings clause applies 

unless a contrary legislative intent is shown by clear expression or necessary implication"). The 

general saving provisions provide that "the reenactment, revision, amendment, or repeal of a 

statute does not affect: (1) the prior operation of the statute or any prior action taken under it [or] 

(2) any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, 

accorded, or incurred under it." TEX. Gov'T CODE § 311.03 l(a)(l)-(2). A local option election 

that adopts a stock law with respect to a particular class of animal establishes a duty to prevent the 

specified animals from running at large in the county or area in which the election was held. See 

TEX. AGRIC. CODE§§ 143.024, .074; see also Rodriguez v. Sandhill Cattle Co., 427 S.W.3d 507, 

509 (Tex. App.-Amarillo 2014, no pet.). The adoption of a stock law in an election held prior to 

1981 involves a "prior action taken under" the prior law, and the duty to restrain certain classes of 

animals is an "obligation ... previously acquired, accrued, accorded, or incurred under" the prior 

law. TEX. Gov'T CODE§ 311.03 l(a)(l)-(2). Nothing in the 1981 recodification indicated a clear 

expression of legislative intent to repeal local option stock laws. Thus, the 1981 recodification did 

not repeal stock laws establishing the free-range status of certain animals pursuant to a local option 

election conducted prior to 1981 under the statutes then in effect. 

You next ask whether "the local stock law elections held under the predecessor statutes 

constitute adoption of the corresponding subchapters under the current Agriculture Code." 

Request Letter at 1. Currently, subchapter B authorizes a local option election to determine 

whether "horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats are to be permitted to run at 

large in the county or area." TEX. AGRIC. CODE§§ 143.021(a), .023. If a majority votes against 

the proposition, "subchapter [B] is adopted," and thereafter "a person may not permit any animal 

of the class mentioned in the proclamation to run at large in the county or area in which the election 

was held." Id. § 143.024(a). Subchapter D authorizes a local option election to adopt a stock law 

prohibiting the running at large of cattle or domestic turkeys. Id. §§ 143.071(a)-(b), .073. If a 

majority votes for the proposition, "subchapter [D] is adopted" and "a person may not permit any 

animal of the class mentioned in the proclamation to run at large in the county or area in which the 

election was held." Id.§ 143.074. You explain that because chapter 143 of the Agriculture Code 
The Honorable Richard E. Glaser - Page 3 (KP-0164) 

did not exist prior to 1981, you are uncertain how to give effect to chapter 143 's references to 

chapters and subchapters of the current law. See Request Letter at 1-2. In essence, you ask 

whether the current provisions of chapter 143 apply in a county that adopted a stock law prior to 

the adoption of the Agriculture Code. See id. 

The Legislature adopted the Agriculture Code to make "agriculture law more accessible 

and understandable, by ... rearranging the statutes into a more logical order," and "employing a 

[new] format and numbering system," without changing the substance of the law. TEX. AGRIC. 

CODE § 1.00l(a), (b)(l)-(2). To that end, the Legislature repealed the prior statutes governing 

local option laws and placed their substance into chapter 143, subchapters (B), (C), or (D) 

according to the class of animal. See Act§ 1, secs. 143.021-.082 at 1340-50. Thus, a reference 

to a subchapter merely identifies the location of the applicable substantive law. See, e.g., TEX. 

AGRIC. CODE § 143.024(b) (stating that certain provisions of subchapter B "apply only in the 

county or area in which this subchapter has been adopted"); id. § 143.074(b) (stating that certain 

provisions of subchapter D "apply only in a county or area in which this subchapter has been 

adopted"). A local option stock election, regardless of when it occurred, establishes the duty to 

prevent specified animals from roaming free in the locality, but the current provisions of chapter 

143 govern the scope and application of such a duty. See Harlow v. Hayes, 991 S.W.2d 24, 27 

(Tex. App.-Amarillo 1998, pet. denied) (reviewing "the portions of Chapter 143 still in effect" 

to determine the scope of the duty to prevent horses from running at large pursuant to a 1935 

election adopting a stock law). Accordingly, in a county that adopted a local stock law pursuant 

to an election occurring prior to 1981, the current provisions of chapter 143 govern the duty to 

prevent the class of animal specified in the election from roaming free in the locality. 
The Honorable Richard E. Glaser - Page 4 (KP-0164) 

SUMMARY 

The 1981 codification of chapter 143 of the Agriculture 

Code did not repeal stock laws establishing the free-range status of 

certain animals pursuant to a local option election conducted prior 

to 1981 under the statutes then in effect. In a county that adopted a 

local option stock law ptior to 1981, the current provisions of 

chapter 143 govern the duty to prevent the class of animal specified 

in the local option stock law from roaming free in the locality. 

JEFFREY C. MATEER 

First Assistant Attorney General 

BRANTLEY STARR 

· Deputy First Assistant Attorney General 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

WILLIAM A. HILL 

Very truly yours, 

KEN PAXTON 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee