### 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. 03-14-00085- CV

Wayne Johns on, App ellant

v. Texas P arks and Wildl if e De partm ent, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0002 5, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Way ne J ohnson appea ls from an interlocutory order den y ing his reque st for a temporar y injunction to preve nt t h e Texas Parks and Wil dlife Depa rtment from car

ry ing out an inspection to deter

mine whether the d eer at J ohnson’s deer -bre eding fac ility wer e marke d with identify ing ear tag s or t attoos require d by statute and De partment rules to ensure that captive deer

are leg itimate Texas bree der deer that have not been exposed to unmonitored deer (re fer red to as “her d rec onciliation”). See Tex. Civ. Prac. & Rem. Code § 51.014(a) (4) (per m i t ting appea l from interlocutory order g ranting or ref using a temporar

y injunction). The Depa

rtment has filed a motion to dismiss the appea l f

or want of jurisdiction on the g round that the appea l is moot. We will g rant the motion and dismiss the appe al.

I n November

2013, the Depa

rtment informed Johnson by letter that it was deny ing his application to rene w his deer -bre eder ’s permit based on a history of noncompliance with deerbree der reg ulations and statutes, including failing to comply with repor ting and deer -identifica tion requirem ents

. As a result, J ohnson’s deer -bre eder ’s permit has expired. The Depa rtment also informed J ohnson that it intended to enter his fac ility to inspect his deer and would euthanize any deer of unknown orig in to collect tis s u e s am p l es for disease testing. I n Dec ember 2013, the Depa rtment informed J ohnson by letter that the Depa rtment’s Permit Review Panel had decide d to uphold the Depa

rtment staff’ s denial of his 2013 per mit-renew al applica tion. J ohnson filed an application for a temporar y restra ining order , temporar y and
perma nent injunctions, and for “ de-novo r eview” of the denial of his pe rmit a pplication. See Tex. Parks & Wil dlife Code § 12.067 (venue to appea l decision of depar tment ref using to issue or rene w permit is Travis County district court and appea l shall be by trial de novo). J ohnson alleg ed that injunctive relief was require d to preve nt the irrepa rable harm that would result from the Depa rtment’s t hrea tened destruction of hi s herd of g enetica lly unique white-ta iled deer as a result of its herd- rec onciliation activities. The district court issued a temporar y restra ining order enjoining
t h e De p ar t m ent from euthanizi ng any of J ohnson’s deer and set a hearing on the application for a temporar y injunction for J anuar

y 30, 2014. During the J anuar y 30 hear ing, the trial court expressly clar ified that the only injunctive re l ief J ohnson soug ht rela ted to the threa tened destruction of the deer , and that J ohnson had stipulated he was not seeking injunctive relief in the form of a court order that the Depa

rtment provide him with a permit. After the hear ing, t h e trial court signe d an order deny ing J ohnson’s application for a temporar y injunction. J ohnson timely perf ecte d an interlocutory
appea l of that order

on Fe bruar

y 11.

2On the evening of Fe bruar y 18, the Depa

rtment conducte d its herd- rec onciliation activities at J ohnson’s fac ility , during which it asser ts that it discovere d 25 d ee r t h at l ac k ed the require d identify ing tag s or tattoos and one dead deer

. The 25 deer wer e euthanized, and their tissue samples, along with that of the dead deer , wer e sent to the Texas A & M Veter inary M ed i cal Diag nostic L abora tory to be tested for chronic wasting disease and bovine tuberc ulosis. The labora tory tests did not detec t either disease in any of the tissue samples. I n an aff idavit attache d to the Depa rt m en t ’s motion to dismiss J ohnson’s interlocutory appea l, the Depa rtment’s Big Game Prog ram Direc tor, Mitch L ockwood, aver red that beca

use the la b o r a to r y s a mp le s d e te c te d n o d isease, the Depa rtment had informed J ohnson that it had lifted its movement ban on the rema ining deer at his fac ility

. The Depa

rtment also informed J ohnson, howeve r, that beca use he no longe r possessed

a valid deer -bre eder ’s permit, he could not continue to confine deer at his fac il i ty

. J ohnson was informed that he must dispose of the rema ining deer at his fac ility either by rele asing them into the wild or by euthanizing them. The Department informed J ohnson that he mus t dispose of t he deer

no later than April 17, 2014, or the Depa rtment wo u l d b e required to do so. See 31 Tex. Admin. Code § 65.612(a) , (c) (2014) (Tex. Parks & Wil dlife Dep’ t, Disposition of Dee r) (upon termination of deer bree der’ s permit, permittee shall dispose of all bree der deer within 30 day s or deer shall be disposed of at discr etion of depa rtment).
I n its motion to d ismiss , the Depa rtment contends that J ohnson’s interlocutory appea l is moot beca

use the herd- rec onciliation actions J ohnson soug ht to enjoin have been completed. The Depa rtment disavows any intent to conduct furthe r t esting but simply intends to enfor ce laws that prohibit a person from possessing live deer without a d ee r- m an ageme nt prog ram. See, e.g. , id.

3§ 65.602(a) (Tex. Park s & Wil dlife Dep’ t, Permit Requirement & Permit Privilege s; Gene ral

Provisions) ( ‘[N] o person may possess a live deer in this state unless that person possesse s a valid [deer-ma nag ement] permit issued by the depar tment

. . . .”). The Depa

rtment maintains that beca use J ohnson stipulated i n the trial court that he was not seeking any injunctive relief to secur e the privileg es of a deer -bre eder ’s permit, the order J ohnson appea ls from does not addre ss that issue and

so cannot be the s ubject of this interlocutory appeal

. W e agr ee . The relief J ohnson soug ht in the trial court was solely to restra in the Depa rtment from conducting its herd- rec onciliation activities. Those activities have since been completed. This appea l does not involve the Depa rtment’s denial of J ohnson’s application for a deer -bre eder ’s permit, the lack of wh i ch is the basis for any future Depa rtment action with respe ct to any deer rema ining in J ohnson’s possession afte r April 17, 2014. Be cause the herd- rec onciliation activities J o h nson soug ht to enjoin have alre ady occur red, the subject matter of the application for temporar y injunction from which J ohnson appea ls is moot. See, e.g. , Zuniga v. U.S. Inve stors, Inc. , 453 S.W .2d 811, 811 (Tex. 1970) (appe al from trial court’s ref us a l to enjoin construction of nursing home moot beca use nursing home construction completed)

. Moreove r, J ohnson can avoid further Depa rtment action by

rele asing his deer into the wil d by the April 17 dea dline.

Be cause the dispute that g ave rise to this appea l is no longe r a live c ontroversy , the
appea l is moot. Acc ording ly , we g rant the Depa rtment’s motion and dismiss the appea l for lack of subject-matter

jurisdiction.

4_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Dismissed for Want of J urisdiction Filed: Apr il 8, 2014

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