If a Texas county adopted a stock law by election back in 1918, is that law still in force today?

Plain-English summary

The Fannin County Criminal District Attorney asked the AG to settle a question his office kept hearing: is Fannin County an open-range or a closed-range county? The county had held two countywide local stock law elections in 1918, one covering hogs, sheep, and goats, the other covering horses, jacks, jennets, and cattle. Both elections adopted stock laws that prohibited those animals from running at large. The DA had reviewed the 1918 commissioners court minutes and concluded the elections followed the stock law statutes in effect at the time. His worry was that the Legislature's 1981 recodification of the agriculture laws might have wiped out those old elections.

The AG started from the baseline rule that Texas is a free-range state: there is no common-law duty to fence in livestock. The Texas Constitution lets the Legislature change that rule by statute, and the Legislature created two kinds of exceptions, statewide statutes (like the one barring livestock from roaming onto U.S. and state highway rights-of-way) and local option stock laws, where a county or part of a county votes on whether to bar certain classes of animals from running at large. The local option statutes go back to 1876 and were rewritten many times before the Legislature consolidated them into chapter 143 of the Agriculture Code in 1981 and repealed the older statutes.

On the repeal question, the AG concluded the 1981 recodification did not undo the pre-1981 elections. The 1981 Act had no saving clause of its own, so the general saving provisions of the Code Construction Act applied. Those provisions say that revising or repealing a statute does not affect prior action taken under it or any obligation already accrued under it. A local option election that adopted a stock law was a prior action, and the resulting duty to keep specified animals penned was an obligation already incurred, so it survived. Nothing in the recodification showed a clear legislative intent to repeal the local stock laws.

On the second question, the AG explained that the chapter and subchapter references in the current code simply identify where the substantive law now lives. The Legislature recodified to make the law more accessible and logically ordered, not to change its substance. So a local option election, whenever it happened, establishes the duty to keep the specified animals from roaming, while the current provisions of chapter 143 govern the scope and application of that duty. For Fannin County, that meant its pre-1981 stock laws remained in force, with chapter 143 controlling how the duty applies.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered the recurring open-range/closed-range question by concluding that Fannin County's 1918 local option stock laws were not repealed by the 1981 Agriculture Code and remained in effect, with chapter 143 governing the scope of the duty they created.

County commissioners and county officials (as the opinion described them): The opinion treated a validly adopted local option stock law as a surviving obligation that the 1981 recodification did not erase, so a county that closed the range before 1981 did not need a fresh election to keep that status.

Livestock owners and landowners (as the opinion described them): The opinion explained that in a county or area that adopted a stock law by local option election, owners of the specified classes of animals are subject to the duty to keep those animals from running at large, and the current provisions of chapter 143 set the scope of that duty.

Common questions

Did the 1981 Agriculture Code wipe out stock laws adopted by old county elections?
No. The AG concluded the 1981 recodification did not repeal stock laws adopted by a local option election held before 1981. The general saving provisions of the Code Construction Act preserved the duty those elections created.

Does a county have to hold a new election to keep its closed-range status?
The opinion did not require a new election. It treated a pre-1981 stock law election as a prior action whose obligation survived the recodification, so the existing stock law stayed in force.

If the old election predates chapter 143, which law controls now?
The opinion said the current provisions of chapter 143 govern the scope and application of the duty, even though the election occurred before chapter 143 existed. The chapter and subchapter references just point to where the substantive law now sits.

What is the difference between open range and closed range?
The opinion described Texas as a free-range (open-range) state by default, with no duty to fence in livestock. A local option stock law election can close the range for specified animals in a county or area, creating a duty to keep those animals from running at large.

Background and statutory framework

Texas is a free-range state and recognizes no common-law duty requiring livestock owners to fence in their animals (Gibbs v. Jackson, 990 S.W.2d 745, 747 (Tex. 1999)). The Texas Constitution delegates to the Legislature the power to change that rule by enacting statutes for the regulation and fencing of livestock (Tex. Const. art. XVI, § 23; Gibbs, 990 S.W.2d at 748). The Legislature created two kinds of exceptions. A statewide statute bars a person responsible for a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat from knowingly permitting the animal to roam at large on the right-of-way of a U.S. or state highway (Tex. Agric. Code §§ 143.101, 143.102). Separately, the local option stock law statutes let a county or part of a county decide by election whether to bar certain classes of animals from running at large (Tex. Agric. Code §§ 143.021-.082).

The local option statutes date to 1876 and were rewritten repeatedly. In 1981 the Legislature consolidated them into chapter 143, subchapters B through D, and repealed the prior statutes (Act of May 22, 1981, 67th Leg., R.S., ch. 388, § 1, secs. 143.021-.082, 1981 Tex. Gen. Laws 1012, 1340-50). The 1981 Act had no saving provisions of its own, so the Code Construction Act's general saving provisions governed (Tex. Agric. Code § 1.002; Tex. Gov't Code § 311.031; Quick v. City of Austin, 7 S.W.3d 109, 130 (Tex. 1998)). Those provisions say revision or repeal of a statute does not affect its prior operation, any prior action taken under it, or any obligation previously acquired or accrued under it (Tex. Gov't Code § 311.031(a)(1)-(2)). A local option election adopting a stock law establishes a duty to keep the specified animals from running at large (Tex. Agric. Code §§ 143.024, .074; Rodriguez v. Sandhill Cattle Co., 427 S.W.3d 507, 509 (Tex. App.—Amarillo 2014, no pet.)). Because the adoption was a prior action and the duty an accrued obligation, and nothing showed a clear intent to repeal, the recodification did not undo pre-1981 stock laws.

The current code's structure groups the substantive law by class of animal. Subchapter B covers a local option election on whether horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats may run at large (Tex. Agric. Code §§ 143.021(a), .023, .024(a)), and subchapter D covers cattle or domestic turkeys (Tex. Agric. Code §§ 143.071(a)-(b), .073, .074). The Legislature adopted the Agriculture Code to make the law more accessible and logically ordered without changing its substance (Tex. Agric. Code § 1.001(a), (b)(1)-(2)), so a subchapter reference merely identifies where the applicable law is located (Tex. Agric. Code §§ 143.024(b), 143.074(b)). A local option stock election, regardless of when it occurred, establishes the duty to keep specified animals from roaming, while the current provisions of chapter 143 govern the scope and application of that duty (Harlow v. Hayes, 991 S.W.2d 24, 27 (Tex. App.—Amarillo 1998, pet. denied)).

Citations

Statutes:

• Tex. Const. art. XVI, § 23
• Tex. Agric. Code §§ 143.101, 143.102
• Tex. Agric. Code §§ 143.021-.082 (incl. §§ 143.021(a), .023, .024, .024(a)-(b), .071(a)-(b), .073, .074, .074(b))
• Tex. Agric. Code §§ 1.001, 1.001(a), (b)(1)-(2), 1.002
• Tex. Gov't Code §§ 311.031, 311.031(a)(1)-(2)
• Act of May 22, 1981, 67th Leg., R.S., ch. 388, § 1, secs. 143.021-.082, 1981 Tex. Gen. Laws 1012, 1340-50

Cases:

• Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999)
• Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998)
• Rodriguez v. Sandhill Cattle Co., 427 S.W.3d 507 (Tex. App.—Amarillo 2014, no pet.)
• Harlow v. Hayes, 991 S.W.2d 24 (Tex. App.—Amarillo 1998, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0164
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0164.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 12, 2017

The Honorable Richard E. Glaser Opinion No. KP-0164
Fannin County Criminal District Attorney
101 East Sam Rayburn Drive, Suite 301 Re: The validity of local stock law
Bonham, Texas 75418 elections held under statutes in effect in 1918
(RQ-0154-KP)

Dear Mr. Glaser:

    You ask about the validity of local stock law elections held in 1918 under statutes then in effect. [1] You inform us that Fannin County conducted two countywide local stock law elections in 1918 to determine whether certain animals may run at large, one concerning hogs, sheep, and goats, and the other concerning horses, jacks, jennets, and cattle. Request Letter at 1-2. You explain that those elections resulted in the adoption of stock laws to prohibit the specified classes of animals from running at large. Id. at 1. You state that you examined the commissioners court minutes concerning these elections and concluded that they complied with the stock law election statutes as they existed at the time of the elections. Id. at 1-2. You ask for an attorney general opinion to settle a recurring question asked of your office, "whether Fannin County is currently an open or closed range county." Id. at 2.

    We begin with the principle that Texas is a free-range state, meaning that it does not recognize a common-law duty requiring owners of livestock to fence in their livestock. Gibbs v. Jackson, 990 S.W.2d 745, 747 (Tex. 1999). The Texas Constitution delegates to the Legislature the power to change the free-range rule by enacting statutes for the regulation and fencing of livestock. Id. at 748 (citing TEX. CONST. art. XVI, § 23). The Legislature has enacted two kinds of exceptions to the general free-range rule: statutes with statewide application, and statutes authorizing local option stock laws. First, the Legislature enacted a statute with statewide applicability prohibiting an owner or a person who has "responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat [to] knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway." TEX. AGRIC. CODE § 143.102; see also id. § 143.101 (defining "highway" to mean "a U.S. highway or a state highway in this state, but ... not ... a numbered farm-to-market road"). Second, the Legislature authorized local option stock laws, whereby a county or portion of a county may decide by election whether to adopt a law prohibiting owners from allowing certain classes of livestock to run at large in the locality. See id. §§ 143.021-.082 (subchapters B through D).

    The statutes authorizing local option stock laws date back to 1876, and over the years the Legislature "has repeatedly rewritten the scope of those laws." Gibbs, 990 S.W.2d at 748. In 1981, the Legislature enacted the Agriculture Code, consolidating the local option stock law statutes into chapter 143, subchapters B through D, of the Agriculture Code and repealing the prior statutes. See Act of May 22, 1981, 67th Leg., R.S., ch. 388, § 1, secs. 143.021-.082, 1981 Tex. Gen. Laws 1012, 1340-50 (the "Act"). You ask whether the Act effectively repealed local stock laws adopted by elections held prior to 1981 under statutes then in effect. Request Letter at 1.

    The Legislature enacted the Agriculture Code in 1981 as part of the State's continuing statutory revision program. TEX. AGRIC. CODE § 1.001; Act § 5 at 1489. The Act does not contain its own saving provisions concerning prior law; therefore, the general saving provisions of the Code Construction Act govern the Act adopting the Agriculture Code. See TEX. AGRIC. CODE § 1.002 (providing that the Code Construction Act applies to the Agriculture Code); TEX. GOV'T CODE § 311.031 (setting out the general saving provisions); see also Quick v. City of Austin, 7 S.W.3d 109, 130 (Tex. 1998) (stating that courts "presume that the general savings clause applies unless a contrary legislative intent is shown by clear expression or necessary implication"). The general saving provisions provide that "the reenactment, revision, amendment, or repeal of a statute does not affect: (1) the prior operation of the statute or any prior action taken under it [or] (2) any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred under it." TEX. GOV'T CODE § 311.031(a)(1)-(2). A local option election that adopts a stock law with respect to a particular class of animal establishes a duty to prevent the specified animals from running at large in the county or area in which the election was held. See TEX. AGRIC. CODE §§ 143.024, .074; see also Rodriguez v. Sandhill Cattle Co., 427 S.W.3d 507, 509 (Tex. App.—Amarillo 2014, no pet.). The adoption of a stock law in an election held prior to 1981 involves a "prior action taken under" the prior law, and the duty to restrain certain classes of animals is an "obligation ... previously acquired, accrued, accorded, or incurred under" the prior law. TEX. GOV'T CODE § 311.031(a)(1)-(2). Nothing in the 1981 recodification indicated a clear expression of legislative intent to repeal local option stock laws. Thus, the 1981 recodification did not repeal stock laws establishing the free-range status of certain animals pursuant to a local option election conducted prior to 1981 under the statutes then in effect.

    You next ask whether "the local stock law elections held under the predecessor statutes constitute adoption of the corresponding subchapters under the current Agriculture Code." Request Letter at 1. Currently, subchapter B authorizes a local option election to determine whether "horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats are to be permitted to run at large in the county or area." TEX. AGRIC. CODE §§ 143.021(a), .023. If a majority votes against the proposition, "subchapter [B] is adopted," and thereafter "a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held." Id. § 143.024(a). Subchapter D authorizes a local option election to adopt a stock law prohibiting the running at large of cattle or domestic turkeys. Id. §§ 143.071(a)-(b), .073. If a majority votes for the proposition, "subchapter [D] is adopted" and "a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held." Id. § 143.074. You explain that because chapter 143 of the Agriculture Code did not exist prior to 1981, you are uncertain how to give effect to chapter 143's references to chapters and subchapters of the current law. See Request Letter at 1-2. In essence, you ask whether the current provisions of chapter 143 apply in a county that adopted a stock law prior to the adoption of the Agriculture Code. See id.

    The Legislature adopted the Agriculture Code to make "agriculture law more accessible and understandable, by ... rearranging the statutes into a more logical order," and "employing a [new] format and numbering system," without changing the substance of the law. TEX. AGRIC. CODE § 1.001(a), (b)(1)-(2). To that end, the Legislature repealed the prior statutes governing local option laws and placed their substance into chapter 143, subchapters (B), (C), or (D) according to the class of animal. See Act § 1, secs. 143.021-.082 at 1340-50. Thus, a reference to a subchapter merely identifies the location of the applicable substantive law. See, e.g., TEX. AGRIC. CODE § 143.024(b) (stating that certain provisions of subchapter B "apply only in the county or area in which this subchapter has been adopted"); id. § 143.074(b) (stating that certain provisions of subchapter D "apply only in a county or area in which this subchapter has been adopted"). A local option stock election, regardless of when it occurred, establishes the duty to prevent specified animals from roaming free in the locality, but the current provisions of chapter 143 govern the scope and application of such a duty. See Harlow v. Hayes, 991 S.W.2d 24, 27 (Tex. App.—Amarillo 1998, pet. denied) (reviewing "the portions of Chapter 143 still in effect" to determine the scope of the duty to prevent horses from running at large pursuant to a 1935 election adopting a stock law). Accordingly, in a county that adopted a local stock law pursuant to an election occurring prior to 1981, the current provisions of chapter 143 govern the duty to prevent the class of animal specified in the election from roaming free in the locality.

                                   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 prior to 1981, the current provisions of
            chapter 143 govern the duty to prevent the class of animal specified
            in the local option stock law from roaming free in the locality.

                                          Very truly yours,

                                          KEN PAXTON
                                          Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Richard E. Glaser, Fannin Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 17, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").