### KEN PAXTON ATTORNEY GENERAL OF TEXAS

September 12, 2017

The Honorable Richard E. Glaser Fannin County Criminal District Attorney 101 East Sam Rayburn Drive, Suite 301 Bonham, Texas 75418

Dear Mr. Glaser: OpinionNo. KP-0164
Re: The validity of local stock law electionsheldunder statutes ineffect in 1918 (RQ-0154-KP)

You ask about the validity oflocal stock law elections held in 1918 under statutes then in effect. 1 You inform us that Fannin County conductedtwo countywide local stock lawelections 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 ofstock laws to prohibitthe specified classes ofanimals 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 ofthe elections. Id. at 1-2. You ask for an attorney general opinionto settle a recurring question asked ofyour office, "whetherFannin Countyis 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-lawduty requiring owners oflivestock 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 ofa horse, mule, donkey, cow, bull, steer, hog, sheep, or goat [to] knowinglypermitthe animal to traverse or roam at large, unattended, on the right-of-way ofa highway." TEX. AGRIC. CODE§ 143.102; see also id.§ 143.101 (defining "highway" to mean "aU.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 ofa county may decide by election whether to adopt a

1Letter 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

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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 ofthose laws." Gibbs, 990 S.W.2d at 748. In 1981, the Legislature enacted the Agriculture Code, consolidating the local option stock law statutesinto chapter 143, subchapters BthroughD, oftheAgriculture Code andrepealingtheprior statutes. See Act ofMay 22, 1981, 67th Leg., R.S., ch. 388, § 1, secs. 143.021-.082, 1981 Tex. Gen. Laws 1012, 1340-50 (the "Act"). You ask whetherthe Act effectively repealed local stock laws adoptedby elections held prior to 1981 under statutes then in effect. Request Letter at 1.
The Legislature enacted the Agriculture Code in 1981 as part ofthe State's continuing statutoryrevisionprogram. TEX. AGRIC. CODE § 1.001; Act §5 at 1489. TheAct does not contain its own saving provisions concerning prior law; therefore, the general saving provisions ofthe 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 ofthe 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 § 311.03l(a)(l)-(2). A local option election that adopts a stocklawwithrespectto a particular class ofanimal establishes a dutyto preventthe specified animals from running at large in the county or areain 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 ofa stock lawinan electionheldpriorto 1981 involves a "prioractiontakenunder" the prior law, andthe duty to restrain certainclasses of animals is an "obligation

...previously acquired, accrued, accorded, or incurred under" the prior law. TEX. Gov'TCODE§ 311.03l(a)(l)-(2). Nothing inthe 1981 recodification indicated a clear expressionoflegislative intentto repeal local option stock laws. Thus, the 1981 recodification did notrepeal stocklaws establishingthe free-range status ofcertainanimalspursuantto a local option election conductedpriorto 1981 underthe 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, orgoats are to be permittedto run at large in the county or area." TEX. AGRIC. CODE§§ 143.021(a), .023. Ifa majority votes against the proposition, "subchapter [B] is adopted," and thereafter "aperson may not permit any animal ofthe classmentionedintheproclamationto runatlarge inthecountyorareainwhichthe election washeld." Id. § 143.024(a). Subchapter D authorizes a local option electionto adopt a stock law prohibiting the running at large ofcattle or domestic turkeys. Id. §§ 143.071(a)-(b), .073. Ifa majority votes for the proposition, "subchapter [D] is adopted" and "apersonmay notpermit any animal ofthe class mentioned inthe proclamationto run at large inthe county orareainwhichthe election was held." Id.§ 143.074. You explain that because chapter 143 ofthe Agriculture CodeThe Honorable Richard E. Glaser

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did not exist prior to 1981, you are uncertain how to give effect to chapter 143's references to chapters and subchapters ofthe current law. See Request Letter at 1-2. In essence, you ask whether the currentprovisions ofchapter 143 apply in a county that adopted a stock law prior to the adoption ofthe 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 ofthe 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 ofanimal. See Act§ 1, secs. 143.021-.082 at 1340-50. Thus, a reference to a subchapter merely identifies the location ofthe 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 ofwhen it occurred, establishes the duty to prevent specified animals from roaming free in the locality, but the current provisions ofchapter 143 govern the scope and application ofsuch a duty. See Harlow v. Hayes, 991 S.W.2d 24, 27 (Tex. App.-Amarillo 1998, pet. denied) (reviewing "the portions ofChapter 143 still in effect" to determine the scope ofthe 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 lawpursuant to an election occurring prior to 1981, the current provisions ofchapter 143 govern the duty to prevent the class ofanimal specified in the election from roaming free in the locality.The Honorable Richard E. Glaser

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### 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 dutyto preventthe class ofanimal specified in the local option stock lawfrom roaming free inthe locality.

JEFFREY C. MATEER FirstAssistant Attorney General BRANTLEY STARR

· Deputy FirstAssistant Attorney General

VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee