Affirmed and Opinion filed September 27, 2018.

In The

Fourteenth Court of Appeals

NO. 14-17-00472-CV

RITA PALFREYMAN, Appellant

V.

BECKY GACONNET AND LESLIE JONES, Appellees 

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 82674-CV

OPINION

This appeal presents the question of whether companion animals—pet 

dogs—can be considered “stock” for purposes of awarding attorney’s fees pursuant 

to Texas Civil Practice and Remedies Code section 38.001(6) in lawsuits 

concerning their injury or death. Concluding that dogs owned by an individual 

solely for companionship are not stock for purposes of the statute, we affirm the 

trial court’s refusal to award attorney’s fees in this case.
2 

Background

Appellant Rita Palfreyman was awarded actual damages for the untimely 

deaths of two of her dogs while they were boarded at Dog Gone Good, the 

business of appellees Becky Gaconnet and Leslie Jones, but the trial court denied 

Palfreyman the attorney’s fees she incurred in pursuing the case. In her original 

petition, Palfreyman asserted claims for negligence, negligence per se, and gross 

negligence. Among other relief, she requested payment of her attorney’s fees 

pursuant to section 38.001(6), which provides that “[a] person may recover 

reasonable attorney’s fees from an individual or corporation, in addition to the 

amount of a valid claim and costs, if the claim is for: . . . (6) killed or injured 

stock.” Tex. Civ. Prac. & Rem. Code § 38.001(6). 

Appellees filed a motion for summary judgment asserting, among other 

things, that Palfreyman could not recover attorney’s fees under section 38.001(6) 

because her dogs were not “stock” as that term is used in the statute. Among their 

arguments, appellees pointed out that in her deposition, Palfreyman acknowledged 

that both of the deceased dogs were neutered, had not been used by Palfreyman to 

breed, show, or otherwise make money, were not for sale, and had no special 

economic value beyond the personal value to Palfreyman. The trial court granted 

partial summary judgment on this issue.1

Palfreyman then filed her second amended petition, adding a claim for 

“negligence per se” based on the bailment relationship between herself as bailor 

and appellees as bailees. The trial court struck this pleading as untimely. However, 

at the conclusion of the bench trial, the judge agreed with Palfreyman that the 

 1 The trial court additionally granted partial summary judgment against Palfreyman’s 

requests for certain types of damages, including for loss of companionship, pain and mental 

anguish, and medical expenses. Palfreyman does not challenge these rulings on appeal. 
3 

bailment claim had been tried by consent. The judge therefore permitted 

Palfreyman to file her third amended petition to add the claim related to bailment.2

As with her second amended petition, Palfreyman’s third amended petition referred 

to the bailment-based cause of action as “negligence per se.”

Also at the conclusion of trial, Palfreyman requested that the trial court 

reconsider the refusal to award attorney’s fees. The trial court denied this request

but permitted Palfreyman’s attorney to present a bill of exceptions in which she 

demonstrated that Palfreyman paid over $7,000 in attorney’s fees for prosecution 

of the case through trial.

The trial court awarded Palfreyman $900 in actual damages for the loss of 

her two dogs plus court costs and interest but denied any recovery of Palfreyman’s 

attorney’s fees. The trial court did not specifically state under which claim the 

actual damages were awarded. Findings of fact and conclusions of law were 

neither requested nor filed.

In three issues, Palfreyman contends that attorney’s fees are recoverable for 

the loss of her dogs because the animals constituted “stock” under section 

38.001(6) of the Civil Practice and Remedies Code.3 In a reply brief, appellant 

asserts an alternative ground for the recovery of her attorney’s fees. 

Governing Law

As a general matter, Texas law prohibits the recovery of attorney’s fees 

incurred in prosecuting or defending a lawsuit unless authorized by statute or 

contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). 

 2 The trial judge expressed concern that the third amended petition added other material 

and expressly permitted the petition only to the extent it added the claim based on bailment. 

3 Palfreyman’s three issues ask: (1) Does Texas law allow recovery of attorney’s fees for 

death or injury to stock? (2) What is stock? and (3) Does Texas law allow recovery of attorney’s 

fees for death or injury to a dog? 
4 

An issue concerning the availability of attorney’s fees under a statute or a contract 

presents a question of law we review de novo. Holland v. Wal–Mart Stores, Inc., 1 

S.W.3d 91, 94 (Tex. 1999). Appellant claims entitlement to attorney’s fees under a 

statute.

Our primary objective in construing the statute is to give effect to the 

legislature’s intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We 

must enforce the statute “as written” and “refrain from rewriting text that 

lawmakers chose.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 

(Tex. 2009). We give terms that are not statutorily defined their ordinary and 

common meaning unless the context suggests the Legislature intended a different 

or more technical meaning or unless such a construction would lead to an absurd 

result. Colorado Cty. v. Staff, 510 S.W.3d 435, 448 (Tex. 2017). We read words 

and phrases in context and construe them according to the rules of grammar and 

common usage. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage 

Comm’n, 518 S.W.3d 318, 325 (Tex. 2017). “In determining the ordinary and 

common meaning of an undefined word in a statute, we may consider a variety of 

sources, including dictionary definitions, judicial constructions of the term, and 

other statutory definitions.” Colorado Cty., 510 S.W.3d at 448. 

Are Pet Dogs “Stock”?

 Our analysis begins with the statute’s words and their apparent meanings 

within context. The Civil Practice and Remedies Code provides no definition for 

the key term in the provision at issue, “stock.” As both Palfreyman and appellees 

agree, the context of section 38.001(6) requires us to define “stock” to reference 

something that at one point was living, as the modifiers “killed” and “injured” do 

not make much sense when applied to inanimate objects. Further, we keep in mind 

that Palfreyman is referring to her dogs, rather than cattle or fish or other species. 
5 

Therefore, we will confine our analysis to relevant definitions of the multi-purpose 

term “stock.”4

Although the use of the term “stock” in Texas statutory law is scant, the term 

“livestock” has been legislatively defined to include “(A) cattle, sheep, swine, 

goats, ratites, or poultry commonly raised for human consumption; (B) a horse, 

pony, mule, donkey, or hinny; (C) native or nonnative hoofstock raised under 

agriculture practices; [and] (D) native or nonnative fowl commonly raised under 

agricultural practices.” Tex. Penal Code § 42.09(b)(5) (criminalizing cruelty to 

livestock). The Penal Code also offers a definition for “nonlivestock animals”: “a 

domesticated living creature, including any stray or feral cat or dog, and a wild 

living creature previously captured. The term does not include an uncaptured wild 

living creature or a livestock animal.” Id. § 42.092 (criminalizing cruelty to 

“nonlivestock animals”). Under these definitions, a neutered dog kept solely for 

companionship would not be considered livestock.

The American Heritage Dictionary offers the following relevant definition

for “stock”: “All the animals kept or raised on a farm; livestock.” American 

Heritage Dictionary 1198–99 (5th ed. 2018). The Oxford English Dictionary offers 

a similar relevant definition: “Farm animals such as cattle, pigs, and sheep, bred 

and kept for their meat or milk; livestock,” Oxford English Dictionary 819 (2nd ed. 

1989). Neither of these definitions would include Palfreyman’s pets.

Palfreyman, however, urges a much broader definition of “stock.” She 

asserts that none of the common usage definitions accurately convey the meaning 

intended in the statute. She offers the following definition: “stock” means “any 

living species of plant, animal or organism that is owned, controlled, or possessed 

 4

 Neither party has directed us to a judicial construction of the term “stock” to guide us. 
6 

by a person or legally recognized entity, that was or is cultivated or selected to a 

generally accepted standard, and for the specific intent of having a cognizable 

purpose or personal benefit.” She does not support her definition with any citation 

that would suggest it is the ordinary or common meaning of “stock.”

To support her proffered definition, Palfreyman instead emphasizes the 

legislative instruction that chapter 38 of the Civil Practice and Remedies Code 

should be “liberally construed to promote its underlying purposes.” Tex. Civ. Prac. 

& Rem. Code § 38.005. Palfreyman asserts that a liberal reading of section 

38.001(6) would include her pet dogs. However, as we have held, a liberal 

construction does not permit a court to add new claims to section 38.001 for the 

recovery of attorney’s fees. See Doctors Hosp. 1997, L.P. v. Sambuca Houston, 

L.P., 154 S.W.3d 634, 638 (Tex. App.—Houston [14th Dist.] 2004, pet. abated).

Palfreyman also cites other appearances of the word “stock” in the Texas 

Constitution and Texas statutes. However, none of these citations identify a 

technical or statutory meaning for “stock” outside of the common usage already 

discussed. Palfreyman first cites article XVI, section 23 of the Texas Constitution, 

which provides in part that:

[t]he Legislature may pass laws for the regulation of live stock and the 

protection of stock raisers in the stock raising portion of the State . . . ; 

and shall have power to pass general and special laws for the 

inspection of cattle, stock and hides and for the regulation of 

brands . . . . 

Tex. Const. art. XVI, § 23. Palfreyman suggests that the use of “live stock” and 

“stock” in the same sentence suggests that the terms were intended to have 

different definitions. We disagree. The use of the word “stock” was simply as a 

short-hand reference to “live stock” and was not intended to convey a different 

meaning.
7 

Palfreyman further cites the use of the term “stock” in the Texas 

Agricultural Code, Texas Parks and Wildlife Code, and Texas Water Code, but 

none of the cited usages include pet dogs or utilize definitions not included within 

the common usage definitions of the term. See Tex. Agric. Code § 71.041(5)

(defining “[n]ursery stock weather protection unit” as a type of cover for protecting 

plants intended for sale or lease); Tex. Parks & Wild. Code § 43.551 (authorizing 

the licensing of fish farmers to take “fish brood stock” from public waters); Tex. 

Water Code §§ 36.001(8), (9), (22) (including the term “stock raising” in 

definitions for “waste” and “use for a beneficial purpose” and the term “stock” in 

the definition of “nursery grower” in the Groundwater Management section of the 

Code). 

Palfreyman also suggests that dogs are “stock” synonymous with livestock, 

as they are often bred for sale and sold, sometimes at facilities known as “puppy 

farms” and sometimes live and work on agricultural farms and ranches. Although 

these scenarios raise interesting issues, they do not describe the situation presented 

here. As Palfreyman acknowledged in her deposition testimony, her pet dogs were 

kept solely as companion animals. They were neutered, were not for sale, and did 

not work on a farm or ranch. 

We conclude the term “stock” in section 38.001(6) does not include pet 

dogs. Accordingly, Palfreyman was not entitled to attorney’s fees pursuant to 

section 38.001(6).5

 We therefore overrule her three issues. 

Reply Brief

We additionally note that Palfreyman filed two reply briefs in which she 

 5

 There is no question that Palfreyman’s dogs were of great worth to her; however, that 

does not change the language of the statute upon which she relies. See Strickland v. Medlen, 397 

S.W.3d 184, 185-86, 192-93 (Tex. 2013). 
8 

asserted in the alternative that she was entitled to recover her attorney’s fees 

because such fees may be awarded in a bailment action, citing Allright, Inc. v. Guy, 

696 S.W.2d 603, 605 (Tex. App.—Corpus Christi, 1985, no writ) (considering 

whether attorney’s fees could be recovered in bailment action under predecessor 

statute to Tex. Civ. Prac. & Rem. Code § 38.001(8)) (authorizing attorney’s fees 

for claim under oral or written contract)).6 However, because Palfreyman did not 

raise this contention in her initial brief and it is not subsumed within the issues 

raised in her initial brief, we need not and do not address her contention regarding 

section 38.001(8) in this appeal. See Tex. R. App. P. 38.3; Pochron v. Oleksy, No. 

14-12-00650-CV, 2014 WL 494894, at *5 (Tex. App.—Houston [14th Dist.] Feb. 

6, 2014, no pet.) (mem. op.); Swaab v. Swaab, 282 S.W.3d 519, 527, n.10 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). 

We affirm the trial court’s judgment. 

 

 /s/ Martha Hill Jamison

 Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

 6 Section 38.001 generally permits the recovery of attorney’s fees in contract actions. 

Tex. Civ. Prac. & Rem. Code § 38.001(8). A claim based on a bailment can be brought either as 

a contract claim or as a tort claim, depending on the particular facts of the case and the type of 

action the plaintiff chooses to assert. See, e.g., Barker v. Eckman, 213 S.W.3d 306, 310 (Tex.

2006) (citing Elder, Dempster & Co. v. St. Louis Sw. Ry. Co., 105 Tex. 628, 154 S.W. 975, 987–

88 (1913) (examining plaintiff's pleadings to determine whether a claim for breach of bailment 

agreement sounded in tort or contract)). In her third amended petition, Palfreyman explicitly

raised her bailment action as a form of negligence, claiming that because the bailors (defendants)

failed to return her property, “there is a presumption of negligence.”