### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00703- CV

Ke n Bai ley and B radley P ete rson, Appellan ts

v. Cart er Sm ith, Executive Dire ctor ; Clayton Wolf, Wi ldli fe Division Direc tor; Mitc h Lockw ood, Bi g Gam e P rogramDirec tor; and T exas P arks & Wildli fe Departm ent, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 5-0 0439 1, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

O P I N I O N

This is a dispute betwee n commerc ial deer bree ders and the Texas Parks and Wil dlife Depa rtment (the Depa

rtment) over the owner ship of captive- b re d wh i tetail deer

. Ken Ba iley and
Br adley Peterson eac h hold a deer bree der’ s permit issued by the Depa rtment authorizing them “to
possess live bree der deer in captivity ” and to “eng ag e in the business of bree ding bree der deer .” See
Tex. P arks & Wil d. Code §§ 43.352(a) , .357(a) (1). Peterson and Ba iley sued the De partment a

nd

sever al of its officia ls to establish that bree der deer are or beca me private proper

ty and to invalidate Depa rtment rules requiring bree ders to test for chronic wasting disease. The Depa rtment responde d that bree der deer are wild animals and there fore “prope rty of the people o f this state.” See id. § 1.011(a)

. The dist rict court g rante d the Department’s partial plea to the jurisdiction and moti on for summary judgme nt, denied Peterson’s cross-motion, and awa rded the Depa

rtment its attorney s’ fee s. For the rea sons that follow, we will aff irm.LEGAL AND F ACTUAL BACK GR OUND The Depa rtment is broadly responsible for administering the laws rela ted to wildlife and “for protec ting the state’s fish and wildlife resour ce s . ” S ee id. §§ 12.001(a) , .0011(a)

. I n addition to g ranting the Depa rtment b road enfor ceme nt power s to car ry out this task, see id. §§ 12.102–.105, the L eg islature has authorized the Depa rtment to g rant cer

tain licenses and permits
to assist with manag ing the state’s resour ces. See generally id. §§ 43.021–.955 (“Spec ial L icense s and Permits”). Subchapter L conce rns the deer bree der’ s permit, which au t horizes a person to “possess li ve breede r deer i n ca ptivity .” Id. § 43.352(a) ; see generally id. §§ 43.351–.369 (“D eer Br eede r’s Permit”). Specifica lly , the permit authorizes a person to “eng ag e in the business of bree ding bree der deer in the immediate locality for which the permit was issued” and to “sel l, transf er t o an o ther person, or hol d in captivity live bree der deer for the purpose of propag ation or sale.” Id. § 43.357(a) (1)–( 2). These rig hts are subject to the Depa rtment’s authority to adopt rules

conce rning “the possession of bree der deer ” and the “proc edure s and require ments for the purcha se, transfe r, sale, or shipment of bree der deer ,” among o t h er subjects. See id. § 43.357(b)( 1), (5).
Fur thermore , moving bree der deer into or out of a fac ility require s a separ ate transfe r permit issued by the Depa

rtment. Id. § 43.362(b) (providing , with exceptions not rele vant here , that “no person

1
may purcha se, obtain, sell, transfe r, or acc ept in this state a live breed er d ee r u n less the person

A fa cility

is de fined in the Depa

rtment’s reg ulations a s “[o] ne or more enclosure s, in the 1 ag g reg ate a

nd including additions, tha t are the site of dee r bre eding opera tions under a sing le dee r bree der’ s permit.” 31 Tex. Admin. C o d e § 65.601(4) (2018) (Tex. Parks & Wil d. Dep’ t, Def initions ). 2obtains a transfe r permit”). “Only bree der deer t h at ar e i n a h ealthy condition may be

. . .

transfe rre d.” Id. § 43.362(a)

.

One of the more se rious health thre ats to deer is chronic wa sting disea se (CWD), a
prog ressive neurode g ener ative disease that aff ects cer vid specie s, including deer , elk, reinde er, and

moose. Chronic W

asting Disease , Centers for Disease Control and Prevention,
h tt p s :/ /w w w . c d c . g ov/prions/cwd/index.ht ml (last visited J une 24, 2019). Sy mpt o ms in c lu d e “ d

r a s ti c weig ht loss (wa sting), stumbli ng , listl essness and other neurolog ic sy mptoms.” Id. “CWD is fata l
to animals and there are no trea tment s o r v accines.” Id. To addre ss the risk of CW D, the Depa rtment adopted a

rule re quiring deer

bree ders to test their he rds for CWD as a pr ere quisite to apply ing for a transfe r permit. See generally 31 Tex. Admin. Code § 65.604 (2018) (Tex. Parks and Wil d. Dep’ t, Disease Monitoring)

. Rule 65.604 prohibits any person f rom removing deer from a 2
bree der fac ility that i s n o t “m o v ement qualified” or introducing deer from an unqualified fac ility without express permission from the Depa rtment. See id. § 65.604(a) –(c)

. A fac ility “is movement qualified if no CW D test results of ‘dete cted’ have been returne d from an acc redited test fac ility for bree der de er submitted from the f acility ” and one of three criter ia is satisfied:
(1) the f acility is cer

tified by the Texas Animal Hea lth Com mission (TAHC) as having a CW D Monitored Her d Status o f L evel A or hig her; (2) less than five elig ible bree d er deer mortalities have occur red within the fac ility

as of Ma y 23, 2006; or

We cite to the curr ent version of reg ulations for convenie nce absent a material and 2 substantial chang e. 3(3) CW D test res u l ts of ‘not detec ted’ have been returne d from an acc redited test fac ility on a mi nimum of 20% of all eli gi b l e bree der deer mortalities occur

ring within the fac ility

as May 23, 2006.

Id. § 65.604(d). A movement-qua lified fac ility loses that status if it does not meet the require ments of Subsection (d) “ by

Marc h 31 of any

y ear .” Id. § 65.604(f)

. On J une 30, 2015, the Depa rtment confirme d the first positive test for CW D in Texas captive deer

. Subsequent testing found sever al other infec ted deer in the same fac ility

. Soon afte rwa

rds, the Depa

rtment’s executiv e direc tor, Carter Smit h, promulg ated emer g ency rules signific antly incre asing the testing nece ssary to acquir e movement-qua lifi ed s t atus. See
40 Tex. Reg

. 5549, 5566–5570 (2015) (eme rg . rule 3 1 Tex. Admin. Code §§ 65.90–.99), subsequently proposed by 41 Tex. Reg

. 2817, 2853, adopted by 41 Tex. Reg

. 5631, 5726 (codifie d as amended at 31 Tex. Admin. C ode §§ 65.90–.99). F urther, the new rules provided that “no li ve bree der deer may be transfe rre d any wher e for any rea son” except as provided in the new rules. See
40 Tex. Reg

. at 5568–69. The pref ace to the emer g ency rules stated thes e steps wer e nece ssary beca use up to 30% of Te x as dee r breeder fac iliti es were potentially exposed to the disease but the

manner in which the disease enter ed that fac ility was still unknown. Id. at 5566. Smit h acte d in part under his authority to adopt emer g ency rules to addre ss “an immediate dang er to a specie s authorized
to be reg ulated by the department.” Tex. Parks & Wil d. Code § 12.027. The or der a lso states the Depa rtment is authorized to reg ulate whitetail dee r in ca ptivity as “g ame a

nimals.”
Ba iley and Peterson sued the Depa rtment seeking decla

ratory relief invalidating the

emer g ency rules or, in the alterna tive, cer tain provisions of the Parks and Wil dlife Code. First, they
soug ht a declara

tion under the Uniform Declar atory J udg ment Act (UDJ A) that captive- bred deer

4ar e private proper ty rathe r than wild animals. See Tex. Civ. Prac. & Rem. Code § 3 7

. 0 0 4 (a ) (authorizing a person to “whose rig hts, status, o r o t h er l ega l rela tions are aff ecte d by a st atute” to “obtain a decla

ration of rig hts, status, or other leg al rela tions there under” ). Ba sed on that owner ship, they next soug ht a decla

ration under the Administrative Procedur es Act (APA) that the emer g ency rules violated proce dural due proce ss. See Tex. Gov’t Code § 2001.038(a) (authorizing decla ratory 3 judgme nt challeng ing “ [t ]he validity of applicability of a rule .

. . if it is allege d that the rule or its threa tened application interfe res with or impairs, or threa tens to interfe re with or impair, a leg al rig ht

or privileg e of the plaintiff”)

. As an alterna tive to the rules challeng e, Ba iley and Peterson asked the district court to decla

re (under the UDJA) that various parts of the P ar k s an d Wil dlife Code are

u n co n s tituti onal as applied to them for violating proce dural due proce ss. Ba iley and Peters o n also sued Smit h, Big Game Prog ram Direc tor Mitch L ockwood, and Wil d l i fe Di vision Direc tor Clay ton Wolf alleg ing they acte d ultra vires by adopting or being i n volved in the adoption of the

emer g ency rules. Finally , Ba iley and Peterson pray ed for an awa rd of attorney ’s fee s as allowed by the UDJA. See Tex. Civ. Prac. & Rem. Code § 37.009 (“I n any proce eding under this chapte r, the court may awa rd costs and r easona

ble and ne cessa

ry attorney ’s fe es as a

re e quitable and just.”). The Depa rtment filed an answe r and a plea to t h e jurisdiction asser ting sovere ign immunit y . I n its answe r, the Depa rtment pray ed for an awa

rd of attorney ’s fee s for defe nding ag ainst the UDJA claims. The Depa rtment subsequently adopted perm an en t rul es with essentially the

same movement restric tions and heig htened testing re q u i re m en ts as the emer g ency rules. See

Peterson challeng ed the rules on sever al other g rounds but has chosen to proce ed only on 3 his procedur al due pr ocess c laim in this Court. 541 Tex. Reg

. 5631, 57 2 6

– 4 1

. Peterson and Ba iley amende d their pleading s to challeng e the

perma nent rules ( CW D Rules). B ailey then nonsuited his claims. After various proce eding s that do not conce rn us here , the Depa rtment , Smit h,
L ockwood, and Wolf filed an amende d plea to the jurisdiction a nd motion for summary judgme nt. The Depa rtment asser

ted the court lacke d jurisdiction to decide Peterson’s claim for an owner ship decla ration and that it was entitled to summary judgme nt on his other two claims beca use Peterson did not possess an owner ship interest in his bree der deer

. Peterson fi l ed a cr o s s -motion for
summary judgme nt. The district court hear d arg uments, revie wed evidenc e submitt ed by the parties, and signe d an orde r providing :

I T I S ORDERED that [t he Depa rtment]’s Partial P l ea to the J urisdiction that the Court lacks jurisdiction over Pl a in ti f f s r e quest for a dec lara tion of deer

owner ship is GRANTED.
I T I S OR DERED that [t he Depa rtment]’s Partial Plea to the J urisdiction tha

t the Court lacks jurisdiction over the State O fficia ls with respe ct to Plaintiffs statutory and constitutional challeng es to the rules and the constitutional challeng es to the statutes is GRANTED.

. . . . I n addition to and as an alterna tive, if nece ssary , to the Court’s ruling s on [t he Depa

rtment’s] Partial Pleas to the J urisdiction, the Cour t ORDERS that [t he Depa

rtment’s] Motion for Summary J udg ment is GRANTED and that Plaintiff’s Motion for Summary J udg ment is DENI ED.” The Court further ORDERS that [ t h e Depa rtment]’s Motion for Attorney ’s Fe es is GRANTED. The Court f inds and conc ludes that [t he Depa rtment]’s defe nses of Pl ai n tiffs claims are so inext rica bly intertwined that segr egation of Def endant’ s attorney ’s fee s is not
6requir ed. There fore , the Court ORDERS that [t he Depa rtment] rec over attorney ’s fe es in the amount of $425,862.50 ($362,967.50 from Plaintif

fs Ba iley and Peterson jointly and sever ally , plus $62,895.00 from Plaintiff Peterson, individually ). The Court further ORDERS that [P eter son’s] Motion for Attorney ’s Fe es is D ENI ED.

This appea l followed. Peterson appea ls the district court’s ruling s on the plea to the jurisdiction and cross-motions for summar y judgme nt. Ba iley

and Peter son jointl y

challeng e the f

ee a war d.

JURISDICTION
We first addre ss whether the district court corr ectly co n cl u d ed that sovere ign immunit y barr ed it from deciding Peterson’s claim for a decla ration of owner ship and his ultra vires claims ag ainst Smi th, L ockwood, a nd Wolf.

Stand ard of Review an d App licable Law

A plea to the jurisdiction c halleng es a court’s a uthority over the subject matter of a claim. City of Ingleside v. City of Corpus Christi , 469 S.W .3d 589, 590 (Tex. 2015) (per curia m). Whether a court has subject matter jurisdiction is a question of law we revie w de novo. Id. When

a plea to the jurisdiction challeng es the pleading s, as here , we must deter mine if the plaintiff car

ried his burden to plead “ fac ts that affirma tively demonstrate the court’s jurisdiction to hear the case.” Mey ers v. JDC/Firethorne, Ltd. , 548 S.W .3d 477, 486 (Tex. 2018). I n doing s o , we construe the pleading s liberally and consider the pleade r’s intent. Id. A plea to the jurisdiction may be g rante d without aff

ording the plaintiff an opportunity to amend only if the pleading s aff irmatively neg ate the exis tence of jurisdiction. Texas Dep’ t o f P a r ks & W

i l dlife v. Miranda , 133 S.W .3d 217, 227 (Tex. 2004).

7Sovereig n immunit y prohibits “suit s aga i n s t the s tate unless the s tate consents and

waives its immunit y .” Nazari v. State , 561 S.W .3d 495, 500 (Tex. 2018). Sovereig n immunit y from suit implicates courts’ sub je c t ma tt e r ju r is d ic ti o n “bec ause it rec og nizes ‘the courts’ limit ed authority

over the sovere ign cre ating them.’” Id

. (q u o t i n g Hall v. McRav en , 508 S.W .3d 232, 238 (Tex. 2017)). W hen applicable , sovere ign immunit y “shield[s] the public from the costs and

4
conseque nces o f im

p r o v id e n t a c ti o n s o f th e ir g o v e r

n me n ts

. ” To o k

e v
. Ci ty o f M e x ia , 1 9 7 S. W. 3 d 3 2 5 , 332 (Tex. 2006).

Courts addre ss the applicability of immunit y throug h a t wo -s tep proce ss. “The judiciary deter

mines the applicability of immunit y in the first instance and delineate s its boundarie s. I f immunit y is app l i ca b l e, t hen the judiciary defe rs to the leg islature to waive such immunit y .”
W asson Interests, L td. v. C ity of Jack sonville , 489 S.W .3d 427, 435 (Tex. 2016) ( i n t er nal citation omitted). The L eg islature may waive immunity

by “cle ar and unambig uous lang uag e” in a statute or leg islative resolution. Nazari , 561 S.W .3d at 500 (quoting Tex. Gov’t Code § 311.034).
Analysis
Peterson initially asser ts the De p ar t m ent’s immunit y does not apply beca use it
reque sted attorney ’s fee s. The Texas Suprem e C o u rt has held that when a g overnme ntal entity
“asse rts aff

irmative claims for monetary rec overy ,” im munity does not apply to counter claims for monetary relief that are “g erma ne to, connec ted with, and proper ly defe nsive to those asser ted by the

Sovereig n immunit y

“also e x tend[s] to immuni ty from liability , but only

immunit y from 4 suit implicates jurisdiction.” City of Austin v. Utility Assocs. , 5 1 7 S

. W

. 3 d 300, 308 n. 18 (Tex. App.—Austin 2017, pet. denied)

. 8g overnme ntal entity .” Reata Constr. Corp. v. City of Dallas , 197 S.W .3d 371, 376–77 (Tex. 2006).
We ag ree with Peterson that a request for attorney ’s fees under the UDJ A i s an affirmative c laim,

see Kelsall v. Haisten , 564 S.W .3d 157, 164 (Tex. A pp.—Houston [1st Dist.] 2018, no pet.), but a fee reque st that is “pure ly defe nsive in nature” and “unconne cted to any claim for monetary relief ” does not abroga te immunit y under Reata

. See Texas Dep’ t of Criminal Justice v. McBride , 317 S.W .3d 731, 733 (Tex. 2010). T h e De partment did not file suit in this case and did not seek monetary rec overy apar

t from it s reque st for fees incurred in defe nding ag ainst Peterson’s c laims, i.e., a “pure ly defe nsive” reque st for fee s. As a result, Reata does not abrog ate its immunit y . See id.

Havi n g co n cluded the Depa rtment’s immunit y applies, we now turn to whether
Peterson pled a wa i v er o f i t fo r his owner ship decla ration and his ultra vires claims. The UDJA provides that “[a] person whose rig hts, status, or ot her leg al re l at i o n s are aff ecte d by a st atute .

. . may have de termined a

ny question of construc tion or validity arising under the

. . . statute . . . and obtain a dec lara tion of rig hts, status, or ot her leg al relations there under.” Tex. Civ. Prac. & Rem. Code § 37.004(a)

. The Texas Supreme Court has explained the UDJA g ener ally “does not enlar g e th e trial court’s jurisdiction but is ‘mere ly a procedura l device for deciding case s alre ady within a court’s jurisdiction.’” Texas Dep’ t of Transp. v. Sefzik , 355 S.W .3d 618, 621–22 (Tex. 2011) (per curia m) (quoting Texas Parks & W ildlif e Dep’t v. Sawye r Tr. , 354 S.W .3d 384, 388 (Tex. 2011)). The UDJA’s sole fea ture that aff ects a trial court’s subject matter jurisdiction is a limit ed waiver of

sovere ign immunity

for “ claims cha lleng ing the validity of ordinanc es or statutes.” Texas L ottery Comm’n v. First State Bank of DeQue en , 325 S.W .3d 628, 633–34 (Tex. 2010) (quot i ng City of El Paso v. Heinrich , 284 S.W .3d 366, 373 n.6 (Tex. 2009)). Howeve r, the UDJA’s waiver of

9immunit y does not a pply “whe n the plaintiff seeks a decla ration of his or her rig hts unde r a statute or other la

w.” Sefzik , 355 S.W .3d at 621.
Peterson contends that the district court nece ssarily possessed jurisdiction to rende r his owner ship decla

ration beca

use his rema ining claims turn on that very issue. We agr ee that
Peterson’s own er s h i p i n t erest in his bree der deer is rele vant to those claims and decide that issue below, but that overla

p does not mean the district court nece ssarily possessed jurisdiction over this claim. See Hec kman v. W illiamson County , 369 S.W .3d 137, 152–53 (Tex. 2012) (stating rule that plaintiff “must demonstrate that the court has jurisdiction over . . . eac h of his claims” and that “the
court must dismiss those claims (and only those claims) over which it lacks jurisdiction”). Peterson
g oes on to ask us to rec og nize a waiver of immunit y by an al o gy t o t h e Texas Constit ution’s open
courts g uara

ntee, which states: “All courts shall be open, and ever y person for an injury done him,
in his lands, g oods, person or reputa tion, shall have reme dy by due course of law.” Tex. Const. art. I , § 13. This provision g uara ntees that the leg islature may not abolish a well-e stablished common law

cause of action for injuries done to one’s “la nds, g oods, person or r eputation” without pr oviding a “re asonable substitut e.” Oncor Elec. Delive ry Co. v. Chaparral Energy, LLC , 546 S.W .3d 133, 143 (Tex. 2018)

. Peterson arg ues “[i] t makes no sense” for Texas c ourts to ha ve jurisdiction to decide whether the L eg islature has unrea sonably abridg ed the rig ht to rec over for damag es to “g oods”—i.e.,
proper t y

— b u t have no power to decide whether proper ty rig hts exis t in the first instance. But
Peterson does not alleg e a due-c ourse- of-law claim. He seeks a fre estanding decla ration of his statutory rig hts, and the Tex as S upreme Court has been clea r that state a g encie s are immune from

10such claims absent a specific waiver

. See Sefzik , 355 S.W .3d at 621; Sawyer Tr. , 354 S.W .3d at 388 5 (holding “no g ener al rig ht to su e a s t at e age n cy for a decla ration of rig hts” under UDJA exis ts)

. Having identified none, we conclude the district court lacke d jurisdiction over Peterson’s claim for

an owner ship decla

ration. See McLane Co. v. Tex. Alcoholic Bev erage Comm’n , 514 S.W .3d 871,
876 (Tex. A

pp.—Austin 2017, pet. denied) (“[The Texas Supre me Court] has squar ely repudia ted the once- widespre ad notion that the UDJA confe rs some broade r rig ht to sue g overnme nt to obtain ‘statutory construction’ or a ‘dec lara tion of rig hts.’” (quoting Ex parte Springsteen , 506 S.W .3d 789, 799 (Tex. App.—Austin 2016, pet. denied)) ).

Peterson als o as s er t ed claims ag ainst Smit h, L ockwood, and Wolf in their officia l
capa cities. Sovereig n immunit y from suit g ener ally extends to state officia ls acting in their officia l

6
capa cities beca

use “a suit ag ainst a g overnme nt officia l acting in an officia l capacity is ‘mere ly another way of pleading an action ag ainst the entity of which the officia l is an ag ent.’” Brown & Gay Eng’g, Inc. v. Olivares , 461 S.W .3d 117, 120 (Te x . 2015) (quoting Texas Adjutant Gen.’ s Office

Peterson also cites to McI ntyre v. El Paso Indepe ndent School District , 499 S.W .3d 820, 5 821 (Tex. 2016) and Texas Education Agenc y v. Lee per , 893 S.W .2d 432 (Tex. 1994), but neither supports his arg ument. McI ntyre involved whether two pare nts challeng ing compulsory school attendanc e laws wer e require d to exhaust administrative reme dies befor e bring ing suit. 499 S.W .3d at 821. Leeper conce rned whether the court of appe al s co rrectly conclude d a law was penal, thus depriving the trial court of jurisdiction to construe it. 893 S.W .2d at 441. Neither case involved the kind of fre estanding decla ration of r ights Peter son seeks he re. Peterson also sued Smit h, L ockwood, and Wolf in their persona l capa cities. He l at er 6 nonsuited h i s persona l-ca pacity claims ag ainst Smit h and does not mention his persona l-ca pacity claims ag ainst L ockwood and Wolf i n h i s b ri ef to this Court. A brief must contain “a clea r and concise arg ument for the contentions made,” supported by “appr opriate citations to authorities and to the rec ord.” Tex. R. App. P. 38.1(i). F ailure to provide arg ument and ana ly sis in support of an issue can result in waiver

. RSL Funding, LLC v. Newsome , 569 S.W .3d 116, 126 (Tex. 2018). We conclude Peterson wa ived his persona l-ca pacity claims ag ainst L ockwood a nd Wolf. 11v. Ngakoue , 408 S.W .3d 350, 356 (Tex

. 2 0 1 3 ))

. Howeve r, a suit ag ainst a state officia l can g o

forwa rd if the officia l “ac ted ultra vires , or without leg al authority , in car ry i n g o u t h i s duties.”
Houston Belt & Terminal Ry. C o
. v. C i t y of Houston , 487 S.W .3d 154, 157–58 (Tex. 2016). A
proper ultra vires suit “must alleg e, and ultimately prove, that the office r acte d without leg al authority or fa i l ed t o perf orm a purely minist eria l act.” Id. at 161 (quoting Heinrich , 284 S.W .3d at 372).
Peterson alleg ed that Smit h, L ockwood, and Wolf acte d ultra vires beca use the CW D
R u l es do not require the Depa rtment to inspect bree der deer for disease befor e deny ing a t ra n s fe r permit, a require ment Peterson finds in Section 43.3591 of the Parks and Wil dlife Code. See Tex. Parks & Wil d. Code § 43.3591 (“G enetic Testing” ). We do not rea ch the mer its of that arg ument (or consider whether it conflicts with his asser tion under his other claims that the Parks and Wil dlife Code does not provide a hear ing) , beca use Smit h, L ockwood, and Wolf are not proper parties to this claim. An ultra vires suit must be broug ht “ag ainst the ‘alleg edly responsible g overnme nt actor in his o ff i ci al ca p acity .’” Hall , 508 S.W .3d at 240 (quoting Patel v. Texas Dep’ t of Licensing & Regulation , 469 S

. W

. 3d 69, 76 (Tex. 2015)). Smit h acte d under his authority as Ex ecutive Direc tor in adopting the emer g ency rules, but the Depa rt m ent adopted the curr ent CW D Rules of which Peterson complains under its statutory authority to reg ulate the possession, purcha se, transfe r, and sale of bree der deer

. See 41 Tex. R eg . 5631, 5757 (citing Tex. Parks & Wil d. Code § 4 3

. 3 5 7 (b)( 1), (5))

. Be cause Smit h, L ockwood, and Wolf did not adopt the CW D Rules t h at
reg ulate Peterson’s bree der d ee r, t he district court corr ectly conclude d it lacke d jurisdiction over

12these claims. See Hall , 508 S.W .3d at 240 (conc luding chanc ellor of University of Texas not proper

party to ultra vires suit challeng ing r ules adopted by

board of reg ents).
W e have conclude d that the district court lacke d jurisdiction over Pe t er s o n ’s
reque sted owner ship decla ration and t h at Smit h, L ockwood, and Wolf are not proper parties to Peterson’s ultra vires claims. Be cause these pleading defe cts aff irmatively neg ate the exis tence of jurisdiction, Peterson is not entitled to an opportunity to amend. See Miranda , 133 S.W .3d at 227.

SUMMAR

Y JUDG MENT
We next consider wh et h er the district court err ed by g ranting the Depa rtment’s motion for summary judgme nt on Peterson’s due pro ce s s claims and deny ing Peterson’s cross-motion. 7

Stand ard of Review

We re v i ew a co urt’s ruling on a motion for summary judgme nt de novo. Texas
W orkforce Comm’n v. W

ichita County , 548 S.W .3d 489, 492 (Tex. 2 0 1 8). Summary judgme nt is
proper when there is no g enuine issue of m aterial fac t and the movant is entitled to judgme nt as a

Peterson initially contends we should not revie w the district court’s ruling beca use it is an 7 improper advisory opinion. “The distinctive fea ture of an advisory opinion is that it decide s an abstrac t question of law without binding the parties.” Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 444 (Tex. 1993)

. The Depa rtment did not contest the district c ourt’s jurisdiction over Peterson’s rules challeng e or his alt er n at i v e constitutional challeng e, so those claims wer e proper ly befor e the court for decision. See Masterson v. Diocese of Nw. Tex , 422 S.W .3d 594, 601 (Tex. 2013) (“Te x as courts are bound by the Texas Constit ution to decide disputes over which they have jurisdiction.”). We need not decide whether the district court’s conditional ruling on Peterson’s owner ship decla

ration was advisory beca use we have sustained the Depa rtment’s p l ea t o the jurisdiction on that issue. See Tex. R. App. P. 4 7

. 1 (d i re ct i n g appellate courts to hand down an opinion “as brief as prac ticable but that addres s es ev er y issue raised and nece ssary to final dispositi on of the a

ppeal” ). 13matter of law. Tex. R. Civ. P. 166a(c ). “On cross-motions for summary judgme nt, eac h party bear s

t h e b urden of establishing that it is entitled to judgme nt as a matter of law.” City of Richards o n

v. Oncor Elec. Delive ry Co. , 539 S.W .3d 252, 259 (Tex. 2018). When, as here , the trial court g rants

o n e m o tion and denies the other, we “must deter mine all questions prese nted and rend er t h e judgme nt that the trial court should have rende red.” Id.

Resolving Peterson’s issues will require us to construe the Parks and Wil dlife Code. Statutory construction prese nts a question of law that we revie w de nov o . Y oungkin v. Hines , 546 S.W .3d 675, 680 (Tex. 2018). Our g oal when construing a statute is to deter mine and g ive eff

ect
to the leg islature’s intent. Id. We rely on the plain meaning of t h e s tatutory text as expressing leg islative intent. Fort W

orth Transp. Auth. v. Rodriguez , 547 S.W .3d 830, 838 (Tex. 2018). When analy zing a specific provision, we “conside r the context and fra mework of the entire statute and meld its words into a cohesive ref lection of leg islative intent.” Id. at 839 (quoting Cadena Comercial USA Corp. v. Texas Alcoholic Bev erage Comm’n , 518 S.W .3d 318, 326 (Tex. 2017)). “F urther, we
construe statutory lang uag e ag ainst the backdr op of common law, assuming the L eg islature is familiar with common-law traditions and principles.” Marino v. Lenoir , 526 S.W .3d 403, 409 (Tex. 2017). We also may consider “forme r st atutory provisions, including laws on the same or simil ar subjects” and the “conse quence s of a particula r construction.” Tex. Gov’t Code § 311.023(4), (5).

P roce dural Due Pr ocess

The Texas Constit ution provides that no p er s on “shall be deprive d of life, liberty , proper

ty , privileg es or immunit ies

. . . except by the due course of the law of the land.”
Tex. Const. art. I , § 19. Be cause the due course of law g uara ntee and the fede ral due proce ss clause

14are text ually simil ar, the Texas Supreme Court has “tra ditionally followed contempora ry fede ral due
proce ss interpre tations of proce dural due proce ss issues.” Honor s A cad., Inc. v. Texas Educ. Agenc y , 555 S.W .3d 54, 61 (Tex. 2018) (quoting University of Tex. Med. Sch. v. Than , 901 S.W .2d 926, 929 (T ex . 1995)). A two-par t test g overns a proce dural due proce ss claim: a court must d et er m i n e whether the p et i t i oner possesses “a liberty or proper ty interest that is entitled to proce dural due
proce ss protec tion” an d , i f so, “wha t proce ss is due.” Mosley v. Texas Health & Human Servs.
Comm’n , ___ S.W .3d ___, ___, No. 17-0345, 2019 WL 1977062, at *9 (Tex. May 3, 2019) (quoting Than , 901 S.W .2d at 929).

“Proper ty interests ‘ar e cre ated and their dimensions are define d by exis ting rules or

un d er s t an dings that stem from an independe nt source such as state law.’” Honors Acad. , 555 S.W .3d at 61 (quoting Board of Rege nts of

State Colls. v. Roth , 408 U.S. 564, 577 (1972))

. Only vested rig hts are const i t u t ionally protec ted. Id. “To have a constitutionally protec ted proper ty in t er es t , a person must have a ‘leg itimate claim of entitlement’ rathe r than a mere ‘unilatera l expectation.’” Id. (quoting Roth , 408 U.S. at 577). Put an o t h er way , a constitutionally protec ted interest is “something more than a mere expectancy based upon an anticipated continuance of an exis ting law.” Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W .3d 1, 15 (Tex. 2015) (quoting City of Dallas v. Tr ammell , 101 S.W .2d 1009, 1014 (Tex. 1937)).

The Texas Supreme Court has descr ibed “the rig ht to own p ri v ate proper ty as ‘funda mental, natura l, inhere nt, inalienable, not derive d from the leg islature and as pree x isting even constitutions.’” Kopplow Dev ., Inc. v. C i t y o f San Antonio , 399 S.W .3d 532, 535 (Tex. 2013) (quoting Eggeme

yer v. Eggemeye r , 554 S.W .2d 137, 140 (Tex. 1977)). Property , in leg al terms,

15“does not r efe r to a thing but r ather to the rig hts be tween a person and a thing.” Evanston Ins. Co.

v. Legacy of Life, Inc. , 370 S.W .3d 377, 382–83 (Tex. 2012). “The desig nation of an object as tang ible proper

ty means that it has acquir ed sufficie nt rig hts to be rec og nized as proper ty under the law.” Id. at 383 (citing Michae l A. He l l er , The Tragedy of the Anticommons: Property in the
Transit ion fr o m Ma rx to Marke ts , 111 Har v. L

. Rev. 621, 666–67 (1998))

. Some of the key components of the bundle of proper ty rig hts “include the rig hts to possess, use, transfe r and exclude others.” Id

. (c i t i ng Kaiser Aetna v. United States , 444 U.S. 164, 176 (1979); United States
v. Ge neral Motors Corp. , 323 U.S. 373, 378 (1945)).

Historically , whether proper ty rig hts could arise in an an i mal depende d on the animal’s common law classifica tion. “The common law divides animals into two g roups: animals domitae naturae or mansuetae naturae —that is, tame or tamed, domest ic animals—and animals ferae naturae—that is, w ild, usua lly found at liberty .” Union Pac. R.R. v. Nami , 498 S.W .3d 890,
896 (Tex. 2016). The common law of Eng land “base d proper ty in [wil d animals] upon the principle of common owner ship.” Gee r v. Connecticut , 161 U.S. 519, 526 (1896), overruled on other grounds by Hugh es v. Oklahoma , 441 U.S. 322 (1979). Private individuals could “re duce a part of this

common proper

ty to possession, and thus acquir e a qualified owner ship in it,” but that ri gh t was subject to g overnme nt reg ulation. Id. (citation omitted). The Americ an states inherited this power with the understanding that it was “to be e x erc ised, like all other powe rs of g overnme nt, as a trust for the be nefit of the pe ople.” Id. at 529. I n this conception:

The wild g ame within a state belong s to the people in their collective sovere ign capa city

. I t is not the subject of private owner ship, e x cept in so far as the people may elec t to make it so; and the y may , if they

16see fit, absolutely prohibit the taking of it, or traff ic and commerc e in it, if it is deeme d nece ssary for t h e protec tion or preserva tion of t he public g ood.

Id. (quoting Ex parte Maier , 37 P. 402, 404 (Cal. 1894))

. T ex as adopted the common law of Eng land as its rule o f d ec i s i o n i n 1840. See Act approve d J an. 20, 1840, 4th Cong., R.S.,
1839 Repub. Tex. L aws 3, reprinted in 2 H.P.N. Gammal, The Laws of Texas , 1822–1897 , at 177–78 (Austin, Gammal Book Co., 1898) (now codified at Tex. Civ. Prac. & Rem. Code § 5.001). Texas courts have consistently

trea ted the public trust doctrine as forming part of t he common law si nce that time. See, e.g. , State v. Marshall , 13 Tex. 55, 57 (1854) (apply ing rule that wild animals are
g ener ally not “the subject of p ro p er t y ”) ; Ex parte Blardone , 115 S.W

. 838, 840 (Tex. Crim. App. 1909) (“The authorities are uniform in holding that the a bsolute ownership of wild g ame is ve sted
in the people of the state and that such is not the subject of private owner ship.” (citation omitted)); Coastal Habitat All. v. Public Util. Comm’n , 294 S.W .3d 276, 287 (Tex

. App.—Austin 2009, no pet.) (explaining that “wild animals[] belong to the State, and no individual proper ty rig hts exis t in them as long as they rema in wild, unconfine d, and undomesticated” ); Hollywood Park Humane Soc.

v. Town of Hollywood Park , 261 S.W .3d 135, 140 (Tex. App.—San Antonio 2008, no pet.) (explaining that no proper t y ri ghts exis t in wild animals “as long as the animal rema ins wild, unconfine d, and undomesticated,” but proper ty rig hts “ca

n arise when an animal is leg ally remove d
f r o m it s ‘ n a

tu r a l li b e r ty ’ a n d s u b je c te d to ‘ ma

n ’ s d o mi n io n ’ ” ( q

u o ti n g S ta te v
. B a r te e , 8 9 4 S. W. 2 d 3 4 , 41 (Tex. App.—San Antonio 1994, no pet.) and citing Nicholson v. Smith , 986 S.W .2d 54, 60 (Tex. App.—San Antonio 1999, no pet.)))

. The Texas L eg islature essen t ially codified this doctrine in
1907 by enac ting a statute providing that “[a]ll the wild deer ” as well as s ever al other ty pes of

17animals “found within the border s of this State, shall be and the same are here by decla red to be the
proper ty of the public.” Act of April 19, 1907, 30th L eg ., R.S., ch. 144, § 1, 1907 Tex. Ge n. L aws 278, 278 (cur

rent version at Tex. Parks & Wil d. Code § 1.011(a) ). Eac h subsequent version of the 8

statute desig nated wild animals as either “prope rty o f t h e p eo ple of this state” or “prope rty of the public.” Bartee , 894 S.W .2d at 42 & n.10. The curr ent version p ro v i des: “All wild animals, fur- bear ing animals, wild birds, and wild fowl inside the border s of this state are the proper ty of the people of this state.” Tex. Parks & Wild. Code § 1.011(a).
Peterson arg ues that we should not interpre t Section 1.011 as co d ify ing the public
trust doctrine beca

us e t h e Un i t ed States Supreme Court alleg edly reje cted that doctrine as a “19th-c entury leg al fiction” when it overr uled Gee r. See Hughes , 441 U.S. at 335–36. But Peterson ignor es that both Gee r and Hughes conce rned challeng es to state statutes u n d er t h e C o mmerce Clause of the United States Constit ution rathe r than to the publ i c trust doctrine g ener ally

. See
U.S. Const. art. I , § 8, cl. 3. Gee r had been convicted under a Connecticut statute banning export 9

o f gam e an i m al s from the state and challeng ed the law as burdening interstate commerc e. Gee r , 161 U.S. at 521. The Court upheld the ba n on the g round that “[t] he common owner ship [of wild animals] imports the rig ht to keep the propert y , i f t h e sovere ign so chooses, alway s within its

The people of Texas subsequently amende d the Constit ution to state: “The conser vation 8 and development of all of the natura l resour ces of this State

. . . are ea ch an d all here by decla red public rig hts and duties.” Te x . Const. art. XVI , § 59. The Department asserts wil d g ame a nimals such as whitetail deer are part of the “natural resource s” S ection 59 was int ende d t o empower the L egi slature to conser

ve. We do not rea ch this issue beca use it is unnece ssary in light of o u r resolution of Peterson’ s due proc ess claim below. See Tex. R. App. P . 47.1. The Commerce Clause g rants Congr ess authority to reg ulate interstate commerc e but “also 9 limit s t h e power of states to interfe re with interstate commerc e.” ETC Mktg., Ltd. v. Harris Cty. Appraisal Dist. , 528 S.W .3d 70, 75–76 (Tex. 2017), cert. de nied , 138 S.Ct . 557 (2017). 18jurisdiction for ever y purpose.” Id. at 530. I n Hughes , the Court overr uled Gee r and held it would evalua te state reg ulations of wildlife under the Commerce Clause “ac cording to the s a me g e n era l rule applied to state reg

ulations of other natura l resour ces.” 441 U.S. at 335. Howeve r, the Court stressed that “ [t ]he overruling of Gee r does not leave the States power less to pr otect and c onserve wild animal life within their border s.” Id. at 338. I n the y ear s following , state courts h ave held Hughes did not invalidate their own public trust st at u t es o r const itutional provisions. See, e.g. , People v. Rinehart , 377 P.3d 818, 823 & n.3 (Cal. 2016); Pullen v. Ulmer , 923 P.2d 54, 60 (Alaska 1996); State v. Fertterer , 841 P.2d 467, 470–71 (Mont. 19 9 2 ), o ve r ruled on other grounds , State

v. Gatts , 928 P.2d 114 (Mont. 1996). Persuade d by these d ec i s i ons, we conclude Hughes does
not aff ect the continued validity of the public trust d o ctrine. See PPL Mont., LLC v. Montana , 565 U.S. 576, 603–04 (2012) (remar king “the publi c trust doctr i n e re m ains a matter of st ate law” and is not defined by

the Constitut ion). Under the public trust doc trine an a nimal must be “leg ally

remove d” fr om the wild before proper

ty rig hts can arise in it. See Bartee , 894 S.W .2d at 41 (“A wrong ful reduc ing to 1 0 possession of creat u re f

er a e naturæ cannot form the basis of owner ship.” (quoting 3A C.J .S. Animals, § 8 (1973)) ). The L eg islature has enac ted statutes defining whitetail deer as “g ame animals” and providing that “[n] o person may captur e, transport, or transplant any g ame animal or

The Parks a

nd Wil dlife Code now provides that “‘[w]il d,’ when used i n ref ere nce to an 1 0 animal, means a specie s, i n cludi ng eac h individual of a specie s, that normally lives in a state of nature and is not ordinarily domesticated.” Tex. Parks & Wil d. Code § 1.101(4). The Depa rtment asser ts that this definition essentially abolishes the common law rule by making an animal’s status depend on its sp ec i es ra t h er than its individual circ umstances. We do not addre ss this arg ument beca use our narr ower analy sis below is sufficie nt to dispose of Peterson’s appea l. See Tex. R. App. P. 47.1. 19g ame bird from the wild in this state” without a permit from the De p artment. See Tex. Parks

& Wil d. C o d e § 4 3

. 0 61(a) ; see also id. § 63.001(a) (def ining whitetail deer as g ame animals).
An other statute more ge nera lly provides that “[n] o person may possess a li ve game animal i n t h i s
state for any purpose not authorized by this code.” Id. § 63.002. I n addi t i o n , re s t ri ct i on of the
movements of animals by fenc es (i.e., removing them from their “natur al l iberty ”) does not aff ect their status as “prope rty of the people of this state.” Id. § 1.013. Read t o g ether , these provisions prohibit a person from removing whitetail deer from the wild and holding them in captivity without
a per mit from the Depa

rtment.
Pe te r s o n ma in

ta ins that his bree der’ s permit either allows for owner ship rig h ts to a r is e in bree der deer acc ording to the common law or actua lly convey s owner ship of bree der deer

. Whil e 1 1

a bree der’ s permit authorizes a person “sell , t ra n sfer to another person, or hold in captivity live bree der deer for the purpose of propag ation or sale,” id

. § 43.357(a) , the permit s t at u t e expressly

Peterson asks us to apply W iley v. Bake r , 597 S.W .2d 3 (Tex. App.—Ty ler 1980, no writ), 1 1 and hold that common law proper ty rules preva il over the definitio n o f wh i t et ai l deer as a g ame animal. W

iley conce rned an elk that had esca ped from a g ame far

m run by Wil ey and later killed by Ba ker. Id. at 4. The c ourt of appe als held the statutory definition of elk as a

g ame a nimal applied o nly to hunting laws and there fore did not control the animal’s status beca use there h ad b ee n n o violation of those laws. Id. at 5–6. The parties in W iley did not addre ss Section 43.061’s prohibition on captur i n g o r transporting g ame animals from the wild, likely beca use the version in eff

ect at the time exempted g ame animals “priva tely raised or privately owned. ” Act of May 31, 1975, 64th L eg ., R.S., ch. 545, §1, 1975 Tex. Gen L aws 1405, 1488 (cur rent version codified at Tex. Parks & W i ld. Code § 43.061). The L eg islature later repe aled that exception while leaving the broade r prohibition unchang ed. See Act of May 25, 1995, 74th L eg ., R.S., ch. 927, § 7 , s ec . 43.061, 1995 Tex. Gen L aws 4650, 4652. W iley also preda tes the L eg islature’s enac tment of Sections 1.013 and 6.002. See Act of May 31, 1997, 75th L eg ., R.S., ch. 1256, § 123, 1997 Tex. Gen. L aws 4732, 4757 (cur

rent version at Tex. Parks & W i l d. Code § 1.013); Act of May 31, 1997, 75th L eg ., R.S., ch. 1256, § 96, 1997 Tex. Gen. L aw s 4 7 3 2 , 4 7 5 1 (cur rent version at Tex. Parks & Wil d. Code § 63.002). The leg al landsca pe has sufficie ntly chang ed since W iley was decide d that we do not find it persua sive here

. 20define s “bre eder deer ” as white-tailed or mule deer “ legally held under a permit authorized by this

subchapter ,” id. § 43.351(1) (empha sis added)

. Nothing in su b chapte r L makes bree der deer
proper ty of the deer bree der. See generally id. §§ 43.351–.369. Peterson never theless maintains that Sections 43.364 and .366 allow for proper ty rig hts to arise in bree der deer acc ording to common law principles. Section 43.364 states:

Br eede r deer may be purcha sed, sold, transfe rre d, or rec eived in this state only fo r t h e purposes of liberation or holding for propag ation. All bree der deer an d i n cre ase from bree der deer are under the full forc e of the laws of this state perta ini n g t o deer , and those bree der deer may be held in captivity for propaga tion in this state only afte r a deer bree der’ s permit is issued by the depar tment under this subchapter.

Id. § 43.364. Peterson contends that “the laws of this state” include the common law rule. We ag ree that the laws of this state include the common law, but we must c onstrue the statutory lang uag e in
context. See Rodriguez , 547 S.W .3d at 838. Section 43.364 sets out the two permissible purposes for which a person may use bree der deer and specifie s that they may be held in captivity only pursuant to a permit issued by the Depa rtment

. Read in that context, we interpre t the statutory command that “[a]ll bree der deer and incre ase from bree der deer are under the full forc e of the laws of this state perta ining to deer ” to mean that the law perta ining to wild animals —including their
statu s as p u b l i c proper

ty —applies to bree der deer except to the extent that a bree der’ s permit authoriz es a limit ed depar ture from those laws. See Tex. Parks & Wil d. Code § 43.364. S ec t i o n 43.366 makes the same point more expli citly : “bre eder deer held under a deer bree der’ s permit are subject to a ll law s and reg ulations of this state perta ining to deer exc ept as specifically provided in

21this subchapter .” Id. § 43.366 (empha sis added)

. Neither section allows common law proper ty rig hts to arise in bree der de er. See id. §§ 43.364, .366.

Moreove r, al l owing private property rig hts to arise in bree der deer is incompatible with the L eg islature’s direc tion that bree der deer are “held under a permit.” See id. § 43.351(1). The
L eg islature has specific ally provided that a bree der’ s permit is va lid f or only a set amount of time, see id. § 43.352(b), and n o t h i n g in the s tatute contemplates that the breeder reta in any rig hts over bree der deer afte r the permit expires or is revoke d by the Depa rtment, see generally id. §§ 43.351–.369; see also id. § 43.365 (providing that a person commits an offe nse who “knowing ly sells, arr ang es the sale of, purcha ses, transfe rs, rec eives, or attemp t s t o s el l , arr ang e the sale of, purcha se, transf

er, or rec eive a live bree der de er in violation of this subchapter ”). But if br eede r 1 2
deer become private proper ty , the owner ’s rig hts would not depend on the status of th e p ermit beca use private proper

ty rig hts are “not derive d from the leg islature.” See Kopp l o w De v. , 399 S.W .3d at 535 (quoting Eggeme yer , 554 S.W .2d at 140). The statutory scheme simply

leave s no room for c ommon law proper ty rig hts to arise in bree der de er. Construing all these provisions tog ether ag ainst the bac kdrop of Section 1.011 and the common law, see Marino , 526 S.W .3d at 409, we conclude bree der deer are public proper ty held under a permit issued by the Depa rtment and, conseque ntly , deer bree ders do not acquir e common

Subchapter L does not addre ss disposit ion of bree der de er a fter the permit term expires. 1 2 Howeve r, Depa

rtment reg ulations require the deer bree der to sell, transfe r, or donate the bree der deer to a person who holds a permit allowing possession of them or to obtain authorization to rele ase the bree der deer into the wild. See 31 Tex. Admin. Code § 65.612(b) (2019) (Tex. Parks & Wil d. Dep’ t, Disposition of Deer)

. 22law proper ty rig hts in them. See Anderton v. Texas Parks & W ildlif e Dep’ t, 605 F. App’x 339, 348 1 3 (5th Cir. 2015) (per curia m) (“While a permittee may have possession of the bree der deer , the deer

are only ‘held under a permit[.] ’ Nowher e do the statutes or reg ulations s t at e t h at b reeder deer become the proper

ty of a permit holder.” (interna l citation omitted)); In re W heele r , 431 B.R. 158,
160 (B ankr. N.D. Tex. 2005) (construing Texas la w and holding that debtor, a deer bree der, “does not have title t o the deer. The deer are considere d wild animals, and a re pr operty

of the pe ople of the State of Te x as.”)

.

That bree der deer are not common law proper ty does not mean that bree der deer have

no leg al status or protec tion under the law. Our holding does not aff ect the rig hts confe rre d by a deer bree d er ’s p er m i t or whether those rig hts are enfor cea ble ag ainst third persons. See, e.g. , Bartee , 894 S.W .2d at 43 & nn.13–14 (concl u d i n g t h at d eer held under a previous version of bree der’ s permit wer e protec ted by theft and criminal mischief laws). The rig hts of hunters who lawfully kill deer are also u n af

fe ct ed. See generally Tex. Parks & Wil d. Code §§ 62.021–.032 (“Sale , T ra n s p o rt at ion, and Storag e of Game” ). Peterson never theless insists that our construction will destabilize the deer industry by removing any eco n omic incentive to eng ag e in deer bree ding, a major component of Texas’ hunting industry

. On the other hand, various amici with ties to the h u n t i n g

Even though sever al rec ent court decisions articula te the g overnme nt’s authority over wild 1 3 animals in terms of owner ship, e.g. , Coastal Habitat All. v. Public Util. Comm’n , 294 S.W .3d 276, 287 (Tex. App.—Aust i n 2 009, no pet.) (stating that wild animals “belong to the State”), our conclusion does not mean the Depa rtment owns bree der deer

. L ike other wild animals, bree der deer “ belong [] to the people in their collective sovere ign capa city .” Gee r v. Connecticut , 161 U.S. 519, 526 (1896), overruled on other grounds by Hughes v. Oklahoma , 441 U.S. 322 (1 9 7 9 ) (quoting E x p a r t e Ma ier , 37 P. 402, 404 (Cal. 1894)). The state’s authority over such animals is “n o t based on owner ship, but upon the state’s police power to prese rv e an d re gu late an important resour ce.” State v. Bartee , 894 S.W .2d 34, 47 (Tex. App.—San An t o n i o 1994, no pet.) (Rickhoff, J., concurr ing)

. 23industry urg e that the publ ic t rust doctrine is vital to the continuing health of the hunting a nd deer bree ding industries. We do not addre ss these arg uments beca use “[t] he wisdom or expediency of 1 4
the law is the L egi s lature’ s prer og ative, not ours.” City of Laredo v. Laredo Merc hants Ass’n , 5 50 S.W .3d 586, 589 (Tex. 2018) (quoting Smith v. Davis , 426 S.W .2d 827, 831 (Tex. 1 9 6 8 ))

. Subchapter

L is clear that deer bree ders have no veste d proper ty interest in their bre eder

deer , and we must enfor ce the statute as wr itten.

Our conclusion does not a ddress whether a bree der has a vested rig ht in a bree der’ s permit. See Anderton , 605 F. App’x at 346–48 (ana ly zing proper

ty interest in bree der’ s p er mit
separ ately from interest in deer her d ). Peterson asser ts in his briefing that “re g ardle ss of the captive- bred deer owner ship issue” the Depa rtment must further show that h e h as n o protec ted
proper ty interest in his bre eder ’s per mit. S pecif

ically , he asse rts that “the pursuit of one’s chosen, lawful occupa

tion” is a protec ted interest and, as a result, his permit “ca nnot be taken without
p ro ce d u ra l due proce ss.” The rig ht to pursue a cer tain occupation is an economic libert y 1 5
interest protec ted by the substantive component o f t h e due course of law clause

. See Mosley , 2019 WL 1977062, at *9 (“I ncluded among the protec ted liberty interests is the rig ht ‘to eng ag e in

This Court has rec eived an amicus brief from the Texas Wil dlife Association, the Boone 1 4 and Crockett Club, Texas Chapter of the Wil dlife Society , the Association of Fish and Wi ldlife Ag encie s, the Nati o n al W i l d life Feder ation, the National Wil d Turkey Fe dera tion, Texas Chapter of the C o as tal Conservation Association, the Ba ckcountr y Hunters & Ang lers, and the Texas and Southwestern Cattle Raisers A ssociation in support of the De partment’s position. Peterson cites to House of Tobacco, Inc. v. Calvert , wher e the Texas Supreme Court held 1 5 that the Comptroller of Public Acc ounts could not revoke a permit to distribute ciga rettes without providing notice and a hear ing. 394 S.W .2d 654, 657–58 (Tex. 1965). Calvert is not applicable here beca use there is no sug g estion that the Depa rtment has revoke d or intends t o re v o k e Peterson’s bree der’ s permit. 24any of the common occupations of life.’” (quoting Than , 901 S.W .2d at 929)). To establish that an

economic r eg ulation is unconstitut ional for violating this prote ction, a par ty must show either that the law’s “purpose could not arg uably be rationally rela ted to a leg itimate g overnme ntal interest” or that “whe n considere d as a whole, the [l aw’ s] actua l, rea l-world eff ect as applied to the challeng ing party could not arg

uably be rationally rela ted to, or is so burdensome as to be oppressive in light of, the g overnme ntal interest.” Patel , 469 S.W .3d at 87. Peterson alleg ed in a previous petition that the
CW D Rules are unconstitutionally oppressive but his live petition at the time of the district court’s ruling omits that claim. See FKM P’sh i p , L t d

. v. Board of Rege nts of Univ. of Hous. Sys. , 255 S.W .3d 619, 632 (Tex. 2008) (filing amende d petition omitting claim “ef fec tively nonsuits or voluntarily dismiss es the omitted claims as o f t h e t i me the pleading is filed”)

. Be cause Peterson elec ted not to go f

orwa rd on that cla im in the dist rict cour t, we dec line to addre ss it here. 1 6

ATTORNEY’S FEES
Peterson and Ba iley challeng e the district court’s awa rd of $425,862.50 in attorney ’s fee s in their rema ining issues. “I n any proce eding under [t he UDJA] , the court may awa rd costs and

rea sonable a

nd nece ssary attorney ’s fees as are equitable and just.” Tex. C iv. Prac. & Rem. Code § 37.009. The UD J A “e ntrusts attorney fee awa rds to the trial cour

t’s sound discretion, subject to the require ments that any fee s awa rded be rea sonable and nece ssary , which are matters of fac t, and
to the additi onal requirements that fe es be equitable and just, which are matters of l aw.” Bocque t

v. Herring , 972 S.W .2d 19, 21 (Tex. 1998). “A trial court abuses its discretion by awa rd i n g fe es

W e s t re ss that we express no opinion on whether Peterson has a vested rig ht under th e 1 6 terms of his per

mit. 25when there is insufficient evidenc e that the fee s wer e rea sonable and nece ssary , or when the awa rd is inequitable or unjust.” Save Our Springs All., Inc. v. City of Dripping Springs , 304 S.W .3d 871, 891 (Tex. App.—Austin 2010, pet. denied).

Jurisdi ction to Award Fe es

Peterson initially challeng es whether the district court had jurisdiction to awa rd fee s if it lacke d jurisdi ct i o n t o d ec i d e the m erits of one of Peterson’s claims. This Court has held that
courts possess authority to awa rds fee s in that circ umstance beca use the UDJA authorizes courts to

aw ar d fe es “[i] n any proce eding under the UDJA.” Id. ; accord Dev on Energy Prod. Co., v. KC S Res., LLC , 450 S.W .3d 203, 220 (Tex

. Ap p . —Houston [14t h Dist.] 2014, pet. denied) ; Feldman

v. KPMG LLP , 438 S.W .3d 678, 685–86 (Tex. Ap p . — Ho u s t o n [1st Dist.] 2014, no pet.); Castro v. McNabb , 319 S.W .3d 721, 735–36 (Tex. App.—El Paso 2009, no p et

. ). P et erson asser ts these holdings conflict with case s holding an awa rd of fee s under the UDJA is unavailable when a party ’s claim was incidental to its other claims for relief

. E.g. , Jack

son v. State Office of

Admin. Hearings , 351 S.W .3d 290, 301 (Tex. 2011). But Jack son and rela

ted case s are based on the principle tha t a party may not reple ad a claim under the UDJA to circ umvent limit s on attorney ’s fee s. Id. ; see MBM
Fin. Corp. v. W

oodlands Operating Co. , 292 S.W .3d 660, 669 (Tex. 2009). That principle does not
prec lude an awa

rd of fee s for defe nding ag ainst another party ’s claim for decla ratory relief

. We conclude the district court possessed jurisdiction to awa rd fe es fo r both of Peterson’s UDJA claims. See Save Our S

prings All. , 304 S.W .3d at 891; see also Zurit a v. SVH-1 Partners, Ltd. , No. 03-10-00650- CV, 2011 WL 6118573, at *8 (Tex. App.—Austin Dec

. 8, 2011, pet. denied)

26(mem. op.) (“The trial court’s conclusion that it l ac k ed j u ri sdiction to rende r the reque sted

decla rations did not chang e the na ture of the proce eding .”).

Jurisdi ction over Bailey

Next, Ba iley arg ues the district court lost jurisdiction over him following his nonsuit.
A plaintiff has an absolute rig ht to take a nonsuit at any time befor e introducing all of his evidenc e

o t her than rebuttal evidenc e. Tex. R. Civ. P. 162. Howeve r, a dismiss al “shall not prejudice th e rig ht of an adver se party to be hear d o n a p en d ing claim for aff irmative relief

.” Id. More specific ally , a nonsuit has “no eff ect on any motion for . . . attorney ’s fe es or other costs, pending
at the time of dismiss al.” Id. Ba iley does not dispute the Depa rtment reque sted attorney ’s fee s under Section 37.009 in its ori gi n al answe r and that this reque st was pending at the time of his nonsuit. The district court there fore had power to decide the entirety of the Depa rtment’s pending claim for attorney ’s fees. See Villaf ani v. T rejo , 251 S.W .3d 466, 469 (Tex. 2008) (“[A] plaintiff’s nonsui t
cannot e x tinguish a de fenda nt’s counter claim for c osts and attorney ’s fe es.”)

. Segregat ion
Ba i ley and Peterson next challeng e the district court’s ref usal to requi re t h e Depa rtment to s egr ega te its fee s. Texas follows the Americ an Rule for attorney ’s fee s, which provides that “a party may not rec over attorney ’s fee s unless authorized by statute or contra ct.”
W ells Fargo Bank, N.A. v. Murphy , 458 S.W .3d 912, 915 (T ex . 2 0 1 5 ). As a result, fee claimants must “seg reg ate f

ees be tween claims for which they are rec overa ble and claims for which they are not.” Tony Gullo M

otors I , L.P. v . Chapa , 212 S.W .3d 299, 311 (Tex. 2006)

. An exception e x ists

27when fee s are based on claims arising out of the s ame transac tion that are so intertwined and

insepara ble as to make seg reg ation impossibl e. Id. at 313–14. Howeve r, “it is only when discr ete leg al service s advanc e both a rec overa ble and unrec overa

ble claim that they are so intertwined that they need not be seg reg ated.” Id. Whether and the extent to which seg reg ation is require d is a mix ed question of law and fac t. See id. at 313; Osborne v. Jauregui, In c. , 2 5 2 S

. W

. 3 d 70, 76 (Tex. App.—Austin 2008, pet. denied)

. The burden is on the party seeking fee s to show seg reg ation is not require d. Home Comfortable Supplies, Inc. v. Cooper , 544 S.W .3d 899, 911 (Tex. App.—Houston [14t h Dist.] 2018, no pet.).

Peterson and B a il e y a sserted claims under the UDJA and the APA. Unlike the UDJA, the APA does not authorize a court to awa rd attorney ’s fee s. See Texas State Bd. of Veterinary Med.
Exam’ rs v. Giggleman , 408 S.W .3d 696, 708 (Tex. App.—Austin 2013, no pet.). The Depa rtment
arg ues segreg ating its fee s is impossibl e beca use both claims turned on whether bree der deer are private pr operty

. Peterson and Ba iley respond the APA and UDJA claims are distinct bec ause the
CW D R u l es “do not even purport to addre ss the issue of owner ship.” They also point out they orig inally asser

ted a substantive due proce ss claim. Peterson and Ba iley insist the Depa rtment has
not even attempted to meet its burden, b u t t h e De p ar tment in fac t seg reg ated the fee s it incurre d responding to Peterson’s previously n o n s u ited claims under the Texas Open Meeting s Act. We
ag ree with the Depa

rtment that further seg reg ation is not require d beca use Peterson and Ba iley ’s various due proce ss claims all depende d on the exis t en ce of a proper ty interest entitled to constitutional protec tion. See, e.g. , Klumb , 458 S.W .3d at 15 (“B efor e any substantive or proce dural due-pr ocess rig hts attach, howeve r, the Petitioners must have a l i b er t y o r proper ty interest that is

28entit l ed to constitutional protec tion.”). Under these circ umstances, we conclude the Depa rtment

car ried its burden to show se g reg ation was unne cessa ry . See Chapa , 212 S.W .3d at 313–14.

Reasonable and Nec essary

We now turn to whether the fee awa rd was rea sonable and nece ssary . Whether fee s

are rea sonable and nece ssary is an is sue of fac t. Bocquet , 9 7 2 S

. W .2d at 21. To find an abuse of discretion “whe n fac tual matters are in dispute, the revie wing court must conclude that the fac ts and circ umsta n ce s of the case exti ng uish any choice in the matter.” In re Mahindra, USA Inc. , 549 S.W .3d 541, 550 (Tex. 2018) (orig

. proce eding ). Peterson and Ba iley asser t the Depa

rtment failed to provide lega lly sufficie nt evidence that its fees we re r easona ble and nece ssary . See In re National Lloyds Ins. Co. , 532 S.W .3d 794, 809 (Tex. 2017) (orig

. proce eding ) (“When fee -shifting is authorized, the party s ee k ing to rec over those fee s bear s the burden of establishing the fee s are

rea sonable a

nd nece ssary .”).
To support its fee claim the Depa rtment submitt ed a sworn aff idavit executed by
Phili p L edbetter , an assistant attorney g ener al experience d in natura l resour ce litigation. L edbetter employ ed the lodestar method, which involves multipl y ing the re as o n ab le hours worke d by a

rea sonable hourly rate

. See El Apple I, Ltd. v. Olivas , 370 S.W .3d 757, 760 (Tex. 2012). The Texas Supreme Court r ece ntly explained tha t sufficient e vidence to support this calculation “includes, at

a minimum , evidenc e of (1 ) p articula r service s perf

ormed, (2) who perf

ormed those service s, (3) approximately when the service s wer e perf ormed, (4) the rea sonable amount of time require d to perf orm the service s, and (5) the rea sonable hourly rate for eac h person perf orming such service s.”
Venture v. UTSW

DVA He althcare, LLP , No. 16-0006, ___ S.W.3d ___, ___, 2019 WL 1873428,

29at *20 (Tex. Apr. 26, 2019). L edbetter explained in his aff idavit that h e arrived at a rea sonable hourly rate for eac h of the assistant attorney s g ener al assig ned to the case by revie wing the aver ag e hourly billing rate s published in the Texas Lawyer for lawy ers prac ticing in Travis County in rele vant
prac tice are as, revie wing the billing rec ords kept by eac h attorney g ener al working on the case , and consulting with eac h of them reg arding the specific service s they perf ormed. Ba sed on this revie w, L edbetter individually deter mined eac h attorney ’s rea sonable hourly rate and the rea sonable hours worke d on the case and arr ived at a rea sonable fee

. The Depa rtment claimed a total of $1,219,975
i n fe es b ut sug g ested an alterna te sum of $425,862.50. The alterna te sum repr esente d fees t h e Depa rtment incurre d responding to Ba iley and Peterson’s discovery reque sts and $62,895 for leg al service s incurre d afte r B ailey ’s nonsuit. The district c ourt acc epted the alterna tive sug g estion and made Ba iley and Peterson jointly and sever ally liable for $362,967.50 and Peterson individually liable for $62,895.

Peterson and Ba iley arg

ue g ener ally that the Depa rtment’s rec ords are insufficient for the district court to deter

mine whether the assistant attorney s g ener al assig ned to the case duplicated

eac h other’s work. See El Apple I , 370 S.W .3d at 7 6 2 (“ C h ar ges for duplicative, excessive, or inadequa tely documented work should be excluded.”). They asser t the Depa

rtment’s rec ords are at least as insufficient as the proof supporting the fee awa rd in Long v. Griffin , 442 S.W .3d 253 (Tex. 2014) (per curia m). There , the aff idavit supporting the attorney ’s fee s set out the hours worke d by

eac h attorney and eac h attorney ’s hourly rate , and listed the activities perf ormed during the case . Id.
at 255. The Texas Supreme Court held this evidenc e was too g ener al beca use there was no evidenc e “to inform the trial court the time spent on specific tasks.” Id. Long does not control here beca use

30L edbetter revie wed (and submitt ed with his aff idavit) fee rec ords detailing specific amounts of time

eac h assistant attorney g ener al spent on tasks such as “Dr afting /R ev i s i n g Documents,” “Review ing/Rese arc h Ba ckg round I nfo,” “Confer ring with AG Personnel,” and simil ar cate g ories.
We conclude this evidenc e is sufficie ntly specific to enable the district court to make a meaning ful evalua tion of the rea sonablene ss of the fee s claimed for eac h assistant attorney g ener al on the case . See State Farm Lloyds v. Hanson , 500 S.W .3d 84, 99 (Tex. App.—Houston [14t h Dist.] 2016, pet. denied) (upholding fee awa rd base d on time rec ords divided into simi lar c ateg ories). The Depa rtment’s reque st for fee s incurre d responding t o Ba i l ey and Peterson’s discovery reque sts included the fee s of contra ct attorney s the Depa rtment hired to revie w “over 2.75 milli on documents.” Peterson and Ba iley contend L edbetter had insufficient information to deter mine the contra ct attorney s’ fee s wer e rea sonable. L edbetter submitt ed with his aff idavit time sheets ref lecting the name of the contra ct attorney , the number of hours worke d, the date of the work, and that the projec t was titled “Parks and Wil d l i fe R ev i ew . ” Eac h time sheet was sent with an invoice (also attache d to L edbetter ’s aff idavit) to Mary Smit h, one of the assistant attorney s g ener al assig ned to this case , and that billed eac h contra ct attorney ’s time at $30 per hour. We conclude this is sufficie nt evidenc e for the di st ri ct court to make a meaning ful evalua tion of t he reasonable ness of the c ontrac t attorney s’ fe es. See V enture , 2019 WL 1873428, at *20.
Equ itable and Just

A fee awa

rd under the UDJA also must be equitable an d j u st. See Tex. Civ. Prac. & Re m. Code § 37.009. Trial cour ts have discr etion to “conc lude that it is not equitable or just to

awa rd even rea sonable and nece ssary fee s.” Bocque t , 972 S.W .2d at 21. The question of whether

31a fee awa

rd is equitable and just “is not susceptible to dir ect proof but is rathe r a matter of fairne ss in light o f all the circ umstances.” Ridge Oil Co., v. Guinn Invs., Inc. , 148 S.W .3d 143, 162 (Tex. 2004).
Peterson and Ba iley arg ue the a

war d was not equitable or just be cause the assistant attorney s g ener al repr esenting the Depa rtment supposedly

failed to ke ep suff

iciently detailed time

rec ords to seg reg ate their fee s, the Depa rtment’s orig inal fee reque st was excessive, and bring ing this lawsuit likely forc ed the Depa rtment to wi t h d ra w t h e emer g ency rules and repla ce them with the

mor e reasonable (but still objectionable) perma nent CW D Rules. They further arg ue order ing private citiz ens to reimburse the Department i s unjust g iven t hat t he Department has substantially

more resour ces availa b l e t o it. The Depa rtment responds awa

rding some measure s of fee s was equitable and just in light of Peterson and Ba iley ’s numerous claims, some of which wer e novel, the
milli ons of documents revie wed in response to their discovery reque sts, and the conseque nces to the deer bree ding industry

if Peterson a

nd Ba iley wer e succ essful.
Co n tr a r y to th e a s sertions made by Peterson and Ba iley , the assistant attorn e y s g e n e r a l working on the case kept sufficie ntly detailed rec ords to enable L edbetter to deter mine individually what portion of the hours eac h worke d on the case was rec overa ble and to calc ulate their fee s

acc ording ly

. Moreove r, it is undisputed that Peterson and Ba iley raised novel claims and that their discovery reque sts require d t h e De partment to revie w an unusually larg e number of documents. Finally , the rea sonablene ss of the Depa rtment’s orig inal fee reque s t i s n o t b ef ore us beca

use the district court awa

rded less than half of that sum. Even if the district court could have co n cl u d ed awarding no fee s would be equitable and just under these circ umstances, it was not com p el l ed t o

32rea ch that conclusion here

. See Sa ve Ou r Springs All. , 304 S.W .3d at 893 (upholding fee awa rd beca use “re asonable minds can differ conce rning whether the attorney ’s fee s are just and equitable” (quoting Save Our Springs All., Inc. v. L a z y Nine Mun. Util. Dist. ex rel. Board of Directors , 198 S.W .3d 300, 318–19 (Tex. App.—Texarkana 2006, pet. denied )) ). We conclude the district court did not abuse its discre tion by making an inequitable or unjust award.

P ete rson’s F ee M otion

As a final matter, Peterson arg ues the district court abused its discretion by deny ing his motion for attorney ’s fee s. A court has discretion to awa rd fee s to the no n -p re v ailing party

. Barshop v. Medina Cty. Underground W ater Conservation Dist. , 925 S.W

. 2 d 6 18, 637–38 (Tex. 1996). Howeve r, a court “is well within its discretion to deny or awa rd attorney ’s fee s based on the
outcome of the case .” Brazoria County v. Texas Comm’n on Envtl. Quality , 128 S.W .3d 728, 744 (Tex. App.—Austin 2004, no pet.). Thus, the district court did not abuse its discretion by overr uling
Peterson’s motion for attorney ’s fee s. See Ochoa v. Craig , 262 S.W .3d 29, 33 (Tex. App.—Dallas 2008, pet. denied) (holding no abuse of discretion in deny ing Ochoa ’s fee reque st beca use she “did not preva il on her dec lara tory judgme nt claim”). We overrule Ba iley

and Peter son’s rema ining issues.

CONCLUSION We affir m the district court’s orde r.

33_________________________________________ Edwar d Smit h, J ustice
Be fore J ustices Goodwin, B aker , and Smith Concurring and Dissenting Opinion by J ustice Goodwin
Affir med Filed: June 28, 2019

34