Bailey v. Smith

Full title: Ken BAILEY and Bradley Peterson, Appellants v. Carter SMITH, Executive…

Court: Court of Appeals of Texas, Austin.

Date published: Jun 28, 2019

581 S.W.3d 374 (Tex. App. 2019)

Opinion

NO. 03-17-00703-CV

06-28-2019

Ken BAILEY and Bradley Peterson, Appellants v. Carter SMITH, Executive Director; Clayton Wolf, Wildlife Division Director; Mitch Lockwood, Big Game Program Director; and Texas Parks & Wildlife Department, Appellees

Edward Smith, Justice

OPINION

This is a dispute between commercial deer breeders and the Texas Parks and Wildlife Department (the Department) over the ownership of captive-bred whitetail deer. Ken Bailey and Bradley Peterson each hold a deer breeder's permit issued by the Department authorizing them "to possess live breeder deer in captivity" and to "engage in the business of breeding breeder deer." See Tex. Parks & Wild. Code §§ 43.352(a), .357(a)(1). Peterson and Bailey sued the Department and several of its officials to establish that breeder deer are or became private property and to invalidate Department rules requiring breeders to test for chronic wasting disease. The Department responded that breeder deer are wild animals and therefore "property of the people of this state." See id. § 1.011(a). The district court granted the Department's partial plea to the jurisdiction and motion for summary judgment, denied Peterson's cross-motion, and awarded the Department its attorneys' fees. For the reasons that follow, we will affirm.

LEGAL AND FACTUAL BACKGROUND

The Department is broadly responsible for administering the laws related to wildlife and "for protecting the state's fish and wildlife resources." See id. §§ 12.001(a), .0011(a). In addition to granting the Department broad enforcement powers to carry out this task, see id. §§ 12.102–.105, the Legislature has authorized the Department to grant certain licenses and permits to assist with managing the state's resources. See generally id. §§ 43.021–.955 ("Special Licenses and Permits"). Subchapter L concerns the deer breeder's permit, which authorizes a person to "possess live breeder deer in captivity." Id. § 43.352(a) ; see generally id. §§ 43.351–.369 ("Deer Breeder's Permit"). Specifically, the permit authorizes a person to "engage in the business of breeding breeder deer in the immediate locality for which the permit was issued" and to "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale." Id. § 43.357(a)(1)–(2). These rights are subject to the Department's authority to adopt rules concerning "the possession of breeder deer" and the "procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer," among other subjects. See id. § 43.357(b)(1), (5). Furthermore, moving breeder deer into or out of a facility requires a separate transfer permit issued by the Department.¹ Id. § 43.362(b) (providing, with exceptions not relevant here, that "no person may purchase, obtain, sell, transfer, or accept in this state a live breeder deer unless the person obtains a transfer permit"). "Only breeder deer that are in a healthy condition may be ... transferred." Id. § 43.362(a).

1 A facility is defined in the Department's regulations as "[o]ne or more enclosures, in the aggregate and including additions, that are the site of deer breeding operations under a single deer breeder's permit." 31 Tex. Admin. Code § 65.601(4) (2018) (Tex. Parks & Wild. Dep't, Definitions).

One of the more serious health threats to deer is chronic wasting disease (CWD), a progressive neurodegenerative disease that affects cervid species, including deer, elk, reindeer, and moose. Chronic Wasting Disease , Centers for Disease Control and Prevention, https://www.cdc.gov/prions/cwd/index.html (last visited June 24, 2019). Symptoms include "drastic weight loss (wasting), stumbling, listlessness and other neurologic symptoms." Id. "CWD is fatal to animals and there are no treatments or vaccines." Id. To address the risk of CWD, the Department adopted a rule requiring deer breeders to test their herds for CWD as a prerequisite to applying for a transfer permit. See generally 31 Tex. Admin. Code § 65.604 (2018) (Tex. Parks and Wild. Dep't, Disease Monitoring).² Rule 65.604 prohibits any person from removing deer from a breeder facility that is not "movement qualified" or introducing deer from an unqualified facility without express permission from the Department. See id. § 65.604(a)–(c). A facility "is movement qualified if no CWD test results of ‘detected’ have been returned from an accredited test facility for breeder deer submitted from the facility" and one of three criteria is satisfied:

2 We cite to the current version of regulations for convenience absent a material and substantial change.

(1) the facility is certified by the Texas Animal Health Commission (TAHC) as having a CWD Monitored Herd Status of Level A or higher;

(2) less than five eligible breeder deer mortalities have occurred within the facility as of May 23, 2006; or

(3) CWD test results of ‘not detected’ have been returned from an accredited test facility on a minimum of 20% of all eligible breeder deer mortalities occurring within the facility as May 23, 2006.

Id. § 65.604(d). A movement-qualified facility loses that status if it does not meet the requirements of Subsection (d) "by March 31 of any year." Id. § 65.604(f).

On June 30, 2015, the Department confirmed the first positive test for CWD in Texas captive deer. Subsequent testing found several other infected deer in the same facility. Soon afterwards, the Department's executive director, Carter Smith, promulgated emergency rules significantly increasing the testing necessary to acquire movement-qualified status. See 40 Tex. Reg. 5549, 5566–5570 (2015) (emerg. rule 31 Tex. Admin. Code §§ 65.90 – .99 ), subsequently proposed by 41 Tex. Reg. 2817, 2853, adopted by 41 Tex. Reg. 5631, 5726 (codified as amended at 31 Tex. Admin. Code §§ 65.90 – .99 ). Further, the new rules provided that "no live breeder deer may be transferred anywhere for any reason" except as provided in the new rules. See 40 Tex. Reg. at 5568–69. The preface to the emergency rules stated these steps were necessary because up to 30% of Texas deer breeder facilities were potentially exposed to the disease but the manner in which the disease entered that facility was still unknown. Id. at 5566. Smith acted in part under his authority to adopt emergency rules to address "an immediate danger to a species authorized to be regulated by the department." Tex. Parks & Wild. Code § 12.027. The order also states the Department is authorized to regulate whitetail deer in captivity as "game animals."

Bailey and Peterson sued the Department seeking declaratory relief invalidating the emergency rules or, in the alternative, certain provisions of the Parks and Wildlife Code. First, they sought a declaration under the Uniform Declaratory Judgment Act (UDJA) that captive-bred deer are private property rather than wild animals. See Tex. Civ. Prac. & Rem. Code § 37.004(a) (authorizing a person to "whose rights, status, or other legal relations are affected by a statute" to "obtain a declaration of rights, status, or other legal relations thereunder"). Based on that ownership, they next sought a declaration under the Administrative Procedures Act (APA) that the emergency rules violated procedural due process.³ See Tex. Gov't Code § 2001.038(a) (authorizing declaratory judgment challenging "[t]he validity of applicability of a rule ... if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff"). As an alternative to the rules challenge, Bailey and Peterson asked the district court to declare (under the UDJA) that various parts of the Parks and Wildlife Code are unconstitutional as applied to them for violating procedural due process. Bailey and Peterson also sued Smith, Big Game Program Director Mitch Lockwood, and Wildlife Division Director Clayton Wolf alleging they acted ultra vires by adopting or being involved in the adoption of the emergency rules. Finally, Bailey and Peterson prayed for an award of attorney's fees as allowed by the UDJA. See Tex. Civ. Prac. & Rem. Code § 37.009 ("In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.").

3 Peterson challenged the rules on several other grounds but has chosen to proceed only on his procedural due process claim in this Court.

The Department filed an answer and a plea to the jurisdiction asserting sovereign immunity. In its answer, the Department prayed for an award of attorney's fees for defending against the UDJA claims. The Department subsequently adopted permanent rules with essentially the same movement restrictions and heightened testing requirements as the emergency rules. See 41 Tex. Reg. 5631, 5726–41. Peterson and Bailey amended their pleadings to challenge the permanent rules (CWD Rules). Bailey then nonsuited his claims.

After various proceedings that do not concern us here, the Department, Smith, Lockwood, and Wolf filed an amended plea to the jurisdiction and motion for summary judgment. The Department asserted the court lacked jurisdiction to decide Peterson's claim for an ownership declaration and that it was entitled to summary judgment on his other two claims because Peterson did not possess an ownership interest in his breeder deer. Peterson filed a cross-motion for summary judgment.

The district court heard arguments, reviewed evidence submitted by the parties, and signed an order providing:

IT IS ORDERED that [the Department]'s Partial Plea to the Jurisdiction that the Court lacks jurisdiction over Plaintiffs request for a declaration of deer ownership is GRANTED.

IT IS ORDERED that [the Department]'s Partial Plea to the Jurisdiction that the Court lacks jurisdiction over the State Officials with respect to Plaintiffs statutory and constitutional challenges to the rules and the constitutional challenges to the statutes is GRANTED.

....

In addition to and as an alternative, if necessary, to the Court's rulings on [the Department's] Partial Pleas to the Jurisdiction, the Court ORDERS that [the Department's] Motion for Summary Judgment is GRANTED and that Plaintiff's

Motion for Summary Judgment is DENIED."

The Court further ORDERS that [the Department]'s Motion for Attorney's Fees is GRANTED. The Court finds and concludes that [the Department]'s defenses of Plaintiffs claims are so inextricably intertwined that segregation of Defendant's attorney's fees is not required. Therefore, the Court ORDERS that [the Department] recover attorney's fees in the amount of $425,862.50 ($362,967.50 from Plaintiffs Bailey and Peterson jointly and severally, plus $62,895.00 from Plaintiff Peterson, individually). The Court further ORDERS that [Peterson's] Motion for Attorney's Fees is DENIED.

This appeal followed. Peterson appeals the district court's rulings on the plea to the jurisdiction and cross-motions for summary judgment. Bailey and Peterson jointly challenge the fee award.

JURISDICTION

We first address whether the district court correctly concluded that sovereign immunity barred it from deciding Peterson's claim for a declaration of ownership and his ultra vires claims against Smith, Lockwood, and Wolf.

Standard of Review and Applicable Law

A plea to the jurisdiction challenges a court's authority over the subject matter of a claim. City of Ingleside v. City of Corpus Christi , 469 S.W.3d 589, 590 (Tex. 2015) (per curiam). Whether a court has subject matter jurisdiction is a question of law we review de novo. Id. When a plea to the jurisdiction challenges the pleadings, as here, we must determine if the plaintiff carried his burden to plead "facts that affirmatively demonstrate the court's jurisdiction to hear the case." Meyers v. JDC/Firethorne, Ltd. , 548 S.W.3d 477, 486 (Tex. 2018). In doing so, we construe the pleadings liberally and consider the pleader's intent. Id. A plea to the jurisdiction may be granted without affording the plaintiff an opportunity to amend only if the pleadings affirmatively negate the existence of jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 227 (Tex. 2004).

Sovereign immunity prohibits "suits against the state unless the state consents and waives its immunity." Nazari v. State , 561 S.W.3d 495, 500 (Tex. 2018). Sovereign immunity from suit implicates courts' subject matter jurisdiction "because it recognizes ‘the courts' limited authority over the sovereign creating them.’ " Id. (quoting Hall v. McRaven , 508 S.W.3d 232, 238 (Tex. 2017) ).⁴ When applicable, sovereign immunity "shield[s] the public from the costs and consequences of improvident actions of their governments." Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006).

4 Sovereign immunity "also extend[s] to immunity from liability, but only immunity from suit implicates jurisdiction." City of Austin v. Utility Assocs. , 517 S.W.3d 300, 308 n. 18 (Tex. App.—Austin 2017, pet. denied).

Courts address the applicability of immunity through a two-step process. "The judiciary determines the applicability of immunity in the first instance and delineates its boundaries. If immunity is applicable, then the judiciary defers to the legislature to waive such immunity." Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427, 435 (Tex. 2016) (internal citation omitted). The Legislature may waive immunity by "clear and unambiguous language" in a statute or legislative resolution. Nazari , 561 S.W.3d at 500 (quoting Tex. Gov't Code § 311.034 ). Analysis

Peterson initially asserts the Department's immunity does not apply because it requested attorney's fees. The Texas Supreme Court has held that when a governmental entity "asserts affirmative claims for monetary recovery," immunity does not apply to counterclaims for monetary relief that are "germane to, connected with, and properly defensive to those asserted by the governmental entity." Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 376–77 (Tex. 2006). We agree with Peterson that a request for attorney's fees under the UDJA is an affirmative claim, see Kelsall v. Haisten , 564 S.W.3d 157, 164 (Tex. App.—Houston [1st Dist.] 2018, no pet.), but a fee request that is "purely defensive in nature" and "unconnected to any claim for monetary relief" does not abrogate immunity under Reata. See Texas Dep't of Criminal Justice v. McBride , 317 S.W.3d 731, 733 (Tex. 2010). The Department did not file suit in this case and did not seek monetary recovery apart from its request for fees incurred in defending against Peterson's claims, i.e., a "purely defensive" request for fees. As a result, Reata does not abrogate its immunity. See id.

Having concluded the Department's immunity applies, we now turn to whether Peterson pled a waiver of it for his ownership declaration and his ultra vires claims. The UDJA provides that "[a] person whose rights, status, or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder." Tex. Civ. Prac. & Rem. Code § 37.004(a). The Texas Supreme Court has explained the UDJA generally "does not enlarge the trial court's jurisdiction but is ‘merely a procedural device for deciding cases already within a court's jurisdiction.’ " Texas Dep't of Transp. v. Sefzik , 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam) (quoting Texas Parks & Wildlife Dep't v. Sawyer Tr. , 354 S.W.3d 384, 388 (Tex. 2011) ). The UDJA's sole feature that affects a trial court's subject matter jurisdiction is a limited waiver of sovereign immunity for "claims challenging the validity of ordinances or statutes." Texas Lottery Comm'n v. First State Bank of DeQueen , 325 S.W.3d 628, 633–34 (Tex. 2010) (quoting City of El Paso v. Heinrich , 284 S.W.3d 366, 373 n.6 (Tex. 2009) ). However, the UDJA's waiver of immunity does not apply "when the plaintiff seeks a declaration of his or her rights under a statute or other law." Sefzik , 355 S.W.3d at 621.

Peterson contends that the district court necessarily possessed jurisdiction to render his ownership declaration because his remaining claims turn on that very issue. We agree that Peterson's ownership interest in his breeder deer is relevant to those claims and decide that issue below, but that overlap does not mean the district court necessarily possessed jurisdiction over this claim. See Heckman v. Williamson County , 369 S.W.3d 137, 152–53 (Tex. 2012) (stating rule that plaintiff "must demonstrate that the court has jurisdiction over ... each of his claims" and that "the court must dismiss those claims (and only those claims) over which it lacks jurisdiction"). Peterson goes on to ask us to recognize a waiver of immunity by analogy to the Texas Constitution's open courts guarantee, which states: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, § 13. This provision guarantees that the legislature may not abolish a well-established common law cause of action for injuries done to one's "lands, goods, person or reputation" without providing a "reasonable substitute." Oncor Elec. Delivery Co. v. Chaparral Energy, LLC , 546 S.W.3d 133, 143 (Tex. 2018). Peterson argues "[i]t makes no sense" for Texas courts to have jurisdiction to decide whether the Legislature has unreasonably abridged the right to recover for damages to "goods"—i.e., property—but have no power to decide whether property rights exist in the first instance. But Peterson does not allege an open-courts claim. He seeks a freestanding declaration of his statutory rights, and the Texas Supreme Court has been clear that state agencies are immune from such claims absent a specific waiver.⁵ See Sefzik , 355 S.W.3d at 621 ; Sawyer Tr. , 354 S.W.3d at 388 (holding "no general right to sue a state agency for a declaration of rights" under UDJA exists). Having identified none, we conclude the district court lacked jurisdiction over Peterson's claim for an ownership declaration. See McLane Co. v. Tex. Alcoholic Beverage Comm'n , 514 S.W.3d 871, 876 (Tex. App.—Austin 2017, pet. denied) ("[The Texas Supreme Court] has squarely repudiated the once-widespread notion that the UDJA confers some broader right to sue government to obtain ‘statutory construction’ or a ‘declaration of rights.’ " (quoting Ex parte Springsteen , 506 S.W.3d 789, 799 (Tex. App.—Austin 2016, pet. denied) )).

5 Peterson also cites to McIntyre v. El Paso Independent School District , 499 S.W.3d 820, 821 (Tex. 2016) and Texas Education Agency v. Leeper , 893 S.W.2d 432 (Tex. 1994), but neither supports his argument. McIntyre involved whether two parents challenging compulsory school attendance laws were required to exhaust administrative remedies before bringing suit. 499 S.W.3d at 821. Leeper concerned whether the court of appeals correctly concluded 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 freestanding declaration of rights Peterson seeks here.

Peterson also asserted claims against Smith, Lockwood, and Wolf in their official capacities.⁶ Sovereign immunity from suit generally extends to state officials acting in their official capacities because "a suit against a government official acting in an official capacity is ‘merely another way of pleading an action against the entity of which the official is an agent.’ " Brown & Gay Eng'g, Inc. v. Olivares , 461 S.W.3d 117, 120 (Tex. 2015) (quoting Texas Adjutant Gen.'s Office v. Ngakoue , 408 S.W.3d 350, 356 (Tex. 2013) ). However, a suit against a state official can go forward if the official "acted ultra vires , or without legal authority, in carrying out his duties." Houston Belt & Terminal Ry. Co. v. City of Houston , 487 S.W.3d 154, 157–58 (Tex. 2016). A proper ultra vires suit "must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." Id. at 161 (quoting Heinrich , 284 S.W.3d at 372 ).

6 Peterson also sued Smith, Lockwood, and Wolf in their personal capacities. He later nonsuited his personal-capacity claims against Smith and does not mention his personal-capacity claims against Lockwood and Wolf in his brief to this Court. A brief must contain "a clear and concise argument for the contentions made," supported by "appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). Failure to provide argument and analysis 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 waived his personal-capacity claims against Lockwood and Wolf.

Peterson alleged that Smith, Lockwood, and Wolf acted ultra vires because the CWD Rules do not require the Department to inspect breeder deer for disease before denying a transfer permit, a requirement Peterson finds in Section 43.3591 of the Parks and Wildlife Code. See Tex. Parks & Wild. Code § 43.3591 ("Genetic Testing"). We do not reach the merits of that argument (or consider whether it conflicts with his assertion under his other claims that the Parks and Wildlife Code does not provide a hearing), because Smith, Lockwood, and Wolf are not proper parties to this claim. An ultra vires suit must be brought "against the ‘allegedly responsible government actor in his official capacity.’ " Hall , 508 S.W.3d at 240 (quoting Patel v. Texas Dep't of Licensing & Regulation , 469 S.W.3d 69, 76 (Tex. 2015) ). Smith acted under his authority as Executive Director in adopting the emergency rules, but the Department adopted the current CWD Rules of which Peterson complains under its statutory authority to regulate the possession, purchase, transfer, and sale of breeder deer. See 41 Tex. Reg. 5631, 5757 (citing Tex. Parks & Wild. Code § 43.357(b)(1), (5) ). Because Smith, Lockwood, and Wolf did not adopt the CWD Rules that regulate Peterson's breeder deer, the district court correctly concluded it lacked jurisdiction over these claims. See Hall , 508 S.W.3d at 240 (concluding chancellor of University of Texas not proper party to ultra vires suit challenging rules adopted by board of regents).

We have concluded that the district court lacked jurisdiction over Peterson's requested ownership declaration and that Smith, Lockwood, and Wolf are not proper parties to Peterson's ultra vires claims. Because these pleading defects affirmatively negate the existence of jurisdiction, Peterson is not entitled to an opportunity to amend. See Miranda , 133 S.W.3d at 227.

SUMMARY JUDGMENT

We next consider whether the district court erred by granting the Department's motion for summary judgment on Peterson's due process claims and denying Peterson's cross-motion.⁷

7 Peterson initially contends we should not review the district court's ruling because it is an improper advisory opinion. "The distinctive feature of an advisory opinion is that it decides an abstract 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 Department did not contest the district court's jurisdiction over Peterson's rules challenge or his alternative constitutional challenge, so those claims were properly before the court for decision. See Masterson v. Diocese of Nw. Tex , 422 S.W.3d 594, 601 (Tex. 2013) ("Texas courts are bound by the Texas Constitution to decide disputes over which they have jurisdiction."). We need not decide whether the district court's conditional ruling on Peterson's ownership declaration was advisory because we have sustained the Department's plea to the jurisdiction on that issue. See Tex. R. App. P. 47.1 (directing appellate courts to hand down an opinion "as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal").

Standard of Review

We review a court's ruling on a motion for summary judgment de novo. Texas Workforce Comm'n v. Wichita County , 548 S.W.3d 489, 492 (Tex. 2018). Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). "On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law." City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 259 (Tex. 2018). When, as here, the trial court grants one motion and denies the other, we "must determine all questions presented and render the judgment that the trial court should have rendered." Id.

Resolving Peterson's issues will require us to construe the Parks and Wildlife Code. Statutory construction presents a question of law that we review de novo. Youngkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018). Our goal when construing a statute is to determine and give effect to the legislature's intent. Id. We rely on the plain meaning of the statutory text as expressing legislative intent. Fort Worth Transp. Auth. v. Rodriguez , 547 S.W.3d 830, 838 (Tex. 2018). When analyzing a specific provision, we "consider the context and framework of the entire statute and meld its words into a cohesive reflection of legislative intent." Id. at 839 (quoting Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Comm'n , 518 S.W.3d 318, 326 (Tex. 2017) ). "Further, we construe statutory language against the backdrop of common law, assuming the Legislature is familiar with common-law traditions and principles." Marino v. Lenoir , 526 S.W.3d 403, 409 (Tex. 2017). We also may consider "former statutory provisions, including laws on the same or similar subjects" and the "consequences of a particular construction." Tex. Gov't Code § 311.023(4), (5).

Procedural Due Process

The Texas Constitution provides that no person "shall be deprived of life, liberty, property, privileges or immunities ... except by the due course of the law of the land." Tex. Const. art. I, § 19. Because the due course of law guarantee and the federal due process clause are textually similar, the Texas Supreme Court has "traditionally followed contemporary federal due process interpretations of procedural due process issues." Honors Acad., Inc. v. Texas Educ. Agency , 555 S.W.3d 54, 61 (Tex. 2018) (quoting University of Tex. Med. Sch. v. Than , 901 S.W.2d 926, 929 (Tex. 1995) ). A two-part test governs a procedural due process claim: a court must determine whether the petitioner possesses "a liberty or property interest that is entitled to procedural due process protection" and, if so, "what process 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 ).

"Property interests ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ " Honors Acad. , 555 S.W.3d at 61 (quoting Board of Regents of State Colls. v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ). Only vested rights are constitutionally protected. Id. "To have a constitutionally protected property interest, a person must have a ‘legitimate claim of entitlement’ rather than a mere ‘unilateral expectation.’ " Id. (quoting Roth , 408 U.S. at 577, 92 S.Ct. 2701 ). Put another way, a constitutionally protected interest is "something more than a mere expectancy based upon an anticipated continuance of an existing law." Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 15 (Tex. 2015) (quoting City of Dallas v. Trammell , 129 Tex. 150, 101 S.W.2d 1009, 1014 (1937) ).

The Texas Supreme Court has described "the right to own private property as ‘fundamental, natural, inherent, inalienable, not derived from the legislature and as preexisting even constitutions.’ " Kopplow Dev., Inc. v. City of San Antonio , 399 S.W.3d 532, 535 (Tex. 2013) (quoting Eggemeyer v. Eggemeyer , 554 S.W.2d 137, 140 (Tex. 1977) ). Property, in legal terms, "does not refer to a thing but rather to the rights between a person and a thing." Evanston Ins. Co. v. Legacy of Life, Inc. , 370 S.W.3d 377, 382–83 (Tex. 2012). "The designation of an object as tangible property means that it has acquired sufficient rights to be recognized as property under the law." Id. at 383 (citing Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets , 111 Harv. L. Rev. 621, 666–67 (1998) ). Some of the key components of the bundle of property rights "include the rights to possess, use, transfer and exclude others." Id. (citing Kaiser Aetna v. United States , 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) ; United States v. General Motors Corp. , 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945) ).

Historically, whether property rights could arise in an animal depended on the animal's common law classification. "The common law divides animals into two groups: animals domitae naturae or mansuetae naturae —that is, tame or tamed, domestic animals—and animals ferae naturae —that is, wild, usually found at liberty." Union Pac. R.R. v. Nami , 498 S.W.3d 890, 896 (Tex. 2016). The common law of England "based property in [wild animals] upon the principle of common ownership." Geer v. Connecticut , 161 U.S. 519, 526, 16 S.Ct. 600, 40 L.Ed. 793 (1896), overruled on other grounds by Hughes v. Oklahoma , 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). Private individuals could "reduce a part of this common property to possession, and thus acquire a qualified ownership in it," but that right was subject to government regulation. Id. (citation omitted). The American states inherited this power with the understanding that it was "to be exercised, like all other powers of government, as a trust for the benefit of the people." Id. at 529, 16 S.Ct. 600. In this conception:

The wild game within a state belongs to the people in their collective sovereign capacity. It is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or traffic and commerce in it, if it is deemed necessary for the protection or preservation of the public good.

Id. (quoting Ex parte Maier , 103 Cal. 476, 37 P. 402, 404 (1894) ). Texas adopted the common law of England as its rule of decision in 1840. See Act approved Jan. 20, 1840, 4th Cong., R.S., 1839 Repub. Tex. Laws 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 treated the public trust doctrine as forming part of the common law since that time. See, e.g. , State v. Marshall , 13 Tex. 55, 57 (1854) (applying rule that wild animals are generally not "the subject of property"); Ex parte Blardone , 55 Tex.Crim. 189, 115 S.W. 838, 840 (Tex. Crim. App. 1909) ("The authorities are uniform in holding that the absolute ownership of wild game is vested in the people of the state and that such is not the subject of private ownership." (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 property rights exist in them as long as they remain wild, unconfined, 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 property rights exist in wild animals "as long as the animal remains wild, unconfined, and undomesticated," but property rights "can arise when an animal is legally removed from its ‘natural liberty’ and subjected to ‘man's dominion’ " (quoting State v. Bartee , 894 S.W.2d 34, 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 Legislature essentially codified this doctrine in 1907 by enacting a statute providing that "[a]ll the wild deer" as well as several other types of animals "found within the borders of this State, shall be and the same are hereby declared to be the property of the public." Act of April 19, 1907, 30th Leg., R.S., ch. 144, § 1, 1907 Tex. Gen. Laws 278, 278 (current version at Tex. Parks & Wild. Code § 1.011(a) ).⁸ Each subsequent version of the statute designated wild animals as either "property of the people of this state" or "property of the public." Bartee , 894 S.W.2d at 42 & n.10. The current version provides: "All wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state." Tex. Parks & Wild. Code § 1.011(a).

8 The people of Texas subsequently amended the Constitution to state: "The conservation and development of all of the natural resources of this State ... are each and all hereby declared public rights and duties." Tex. Const. art. XVI, § 59. The Department asserts wild game animals such as whitetail deer are part of the "natural resources" Section 59 was intended to empower the Legislature to conserve. We do not reach this issue because it is unnecessary in light of our resolution of Peterson's due process claim below. See Tex. R. App. P. 47.1.

Peterson argues that we should not interpret Section 1.011 as codifying the public trust doctrine because the United States Supreme Court allegedly rejected that doctrine as a "19th-century legal fiction" when it overruled Geer . See Hughes , 441 U.S. at 335–36, 99 S.Ct. 1727. But Peterson ignores that both Geer and Hughes concerned challenges to state statutes under the Commerce Clause of the United States Constitution rather than to the public trust doctrine generally. See U.S. Const. art. I, § 8, cl. 3.⁹ Geer had been convicted under a Connecticut statute banning export of game animals from the state and challenged the law as burdening interstate commerce. Geer , 161 U.S. at 521, 16 S.Ct. 600. The Court upheld the ban on the ground that "[t]he common ownership [of wild animals] imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." Id. at 530, 16 S.Ct. 600. In Hughes , the Court overruled Geer and held it would evaluate state regulations of wildlife under the Commerce Clause "according to the same general rule applied to state regulations of other natural resources." 441 U.S. at 335, 99 S.Ct. 1727. However, the Court stressed that "[t]he overruling of Geer does not leave the States powerless to protect and conserve wild animal life within their borders." Id. at 338, 99 S.Ct. 1727. In the years following, state courts have held Hughes did not invalidate their own public trust statutes or constitutional provisions. See, e.g. , People v. Rinehart , 1 Cal.5th 652, 206 Cal.Rptr.3d 571, 377 P.3d 818, 823 & n.3 (2016) ; Pullen v. Ulmer , 923 P.2d 54, 60 (Alaska 1996) ; State v. Fertterer , 255 Mont. 73, 841 P.2d 467, 470–71 (1992), overruled on other grounds , State v. Gatts , 279 Mont. 42, 928 P.2d 114 (1996). Persuaded by these decisions, we conclude Hughes does not affect the continued validity of the public trust doctrine. See PPL Mont., LLC v. Montana , 565 U.S. 576, 603–04, 132 S.Ct. 1215, 182 L.Ed.2d 77 (2012) (remarking "the public trust doctrine remains a matter of state law" and is not defined by the Constitution).

9 The Commerce Clause grants Congress authority to regulate interstate commerce but "also limits the power of states to interfere with interstate commerce." ETC Mktg., Ltd. v. Harris Cty. Appraisal Dist. , 528 S.W.3d 70, 75–76 (Tex. 2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 557, 199 L.Ed.2d 437 (2017).

Under the public trust doctrine an animal must be "legally removed" from the wild before property rights can arise in it.¹⁰ See Bartee , 894 S.W.2d at 41 ("A wrongful reducing to possession of creature ferae naturæ cannot form the basis of ownership." (quoting 3A C.J.S. Animals, § 8 (1973) )). The Legislature has enacted statutes defining whitetail deer as "game animals" and providing that "[n]o person may capture, transport, or transplant any game animal or game bird from the wild in this state" without a permit from the Department. See Tex. Parks & Wild. Code § 43.061(a) ; see also id. § 63.001(a) (defining whitetail deer as game animals). Another statute more generally provides that "[n]o person may possess a live game animal in this state for any purpose not authorized by this code." Id. § 63.002. In addition, restriction of the movements of animals by fences (i.e., removing them from their "natural liberty") does not affect their status as "property of the people of this state." Id. § 1.013. Read together, these provisions prohibit a person from removing whitetail deer from the wild and holding them in captivity without a permit from the Department.

10 The Parks and Wildlife Code now provides that " ‘[w]ild,’ when used in reference to an animal, means a species, including each individual of a species, that normally lives in a state of nature and is not ordinarily domesticated." Tex. Parks & Wild. Code § 1.101(4). The Department asserts that this definition essentially abolishes the common law rule by making an animal's status depend on its species rather than its individual circumstances. We do not address this argument because our narrower analysis below is sufficient to dispose of Peterson's appeal. See Tex. R. App. P. 47.1.

Peterson maintains that his breeder's permit either allows for ownership rights to arise in breeder deer according to the common law or actually conveys ownership of breeder deer.¹¹ While a breeder's permit authorizes a person "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale," id. § 43.357(a), the permit statute expressly defines "breeder deer" as white-tailed or mule deer "legally held under a permit authorized by this subchapter ," id. § 43.351(1) (emphasis added). Nothing in subchapter L makes breeder deer property of the deer breeder. See generally id. §§ 43.351–.369. Peterson nevertheless maintains that Sections 43.364 and .366 allow for property rights to arise in breeder deer according to common law principles. Section 43.364 states:

11 Peterson asks us to apply Wiley v. Baker , 597 S.W.2d 3 (Tex. App.—Tyler 1980, no writ), and hold that common law property rules prevail over the definition of whitetail deer as a game animal. Wiley concerned an elk that had escaped from a game farm run by Wiley and later killed by Baker. Id. at 4. The court of appeals held the statutory definition of elk as a game animal applied only to hunting laws and therefore did not control the animal's status because there had been no violation of those laws. Id. at 5–6. The parties in Wiley did not address Section 43.061's prohibition on capturing or transporting game animals from the wild, likely because the version in effect at the time exempted game animals "privately raised or privately owned." Act of May 31, 1975, 64th Leg., R.S., ch. 545, § 1, 1975 Tex. Gen Laws 1405, 1488 (current version codified at Tex. Parks & Wild. Code § 43.061 ). The Legislature later repealed that exception while leaving the broader prohibition unchanged. See Act of May 25, 1995, 74th Leg., R.S., ch. 927, § 7, sec. 43.061, 1995 Tex. Gen Laws 4650, 4652. Wiley also predates the Legislature's enactment of Sections 1.013 and 6.002. See Act of May 31, 1997, 75th Leg., R.S., ch. 1256, § 123, 1997 Tex. Gen. Laws 4732, 4757 (current version at Tex. Parks & Wild. Code § 1.013 ); Act of May 31, 1997, 75th Leg., R.S., ch. 1256, § 96, 1997 Tex. Gen. Laws 4732, 4751 (current version at Tex. Parks & Wild. Code § 63.002 ). The legal landscape has sufficiently changed since Wiley was decided that we do not find it persuasive here.

Breeder deer may be purchased, sold, transferred, or received in this state only for the purposes of liberation or

holding for propagation. All breeder deer and increase from breeder deer are under the full force of the laws of this state pertaining to deer, and those breeder deer may be held in captivity for propagation in this state only after a deer breeder's permit is issued by the department under this subchapter.

Id. § 43.364. Peterson contends that "the laws of this state" include the common law rule. We agree that the laws of this state include the common law, but we must construe the statutory language 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 breeder deer and specifies that they may be held in captivity only pursuant to a permit issued by the Department. Read in that context, we interpret the statutory command that "[a]ll breeder deer and increase from breeder deer are under the full force of the laws of this state pertaining to deer" to mean that the law pertaining to wild animals—including their status as public property—applies to breeder deer except to the extent that a breeder's permit authorizes a limited departure from those laws. See Tex. Parks & Wild. Code § 43.364. Section 43.366 makes the same point more explicitly: "breeder deer held under a deer breeder's permit are subject to all laws and regulations of this state pertaining to deer except as specifically provided in this subchapter. " Id. § 43.366 (emphasis added). Neither section allows common law property rights to arise in breeder deer. See id. §§ 43.364, .366.

Moreover, allowing private property rights to arise in breeder deer is incompatible with the Legislature's direction that breeder deer are "held under a permit." See id. § 43.351(1). The Legislature has specifically provided that a breeder's permit is valid for only a set amount of time, see id. § 43.352(b), and nothing in the statute contemplates that the breeder retain any rights over breeder deer after the permit expires or is revoked by the Department, see generally id. §§ 43.351–.369; see also id. § 43.365 (providing that a person commits an offense who "knowingly sells, arranges the sale of, purchases, transfers, receives, or attempts to sell, arrange the sale of, purchase, transfer, or receive a live breeder deer in violation of this subchapter").¹² But if breeder deer become private property, the owner's rights would not depend on the status of the permit because private property rights are "not derived from the legislature." See Kopplow Dev. , 399 S.W.3d at 535 (quoting Eggemeyer , 554 S.W.2d at 140 ). The statutory scheme simply leaves no room for common law property rights to arise in breeder deer.

12 Subchapter L does not address disposition of breeder deer after the permit term expires. However, Department regulations require the deer breeder to sell, transfer, or donate the breeder deer to a person who holds a permit allowing possession of them or to obtain authorization to release the breeder deer into the wild. See 31 Tex. Admin. Code § 65.612(b) (2019) (Tex. Parks & Wild. Dep't, Disposition of Deer).

Construing all these provisions together against the backdrop of Section 1.011 and the common law, see Marino , 526 S.W.3d at 409, we conclude breeder deer are public property held under a permit issued by the Department and, consequently, deer breeders do not acquire common law property rights in them.¹³ See Anderton v. Texas Parks & Wildlife Dep't , 605 F. App'x 339, 348 (5th Cir. 2015) (per curiam) ("While a permittee may have possession of the breeder deer, the deer are only ‘held under a permit[.]’ Nowhere do the statutes or regulations state that breeder deer become the property of a permit holder." (internal citation omitted)); In re Wheeler , 431 B.R. 158, 160 (Bankr. N.D. Tex. 2005) (construing Texas law and holding that debtor, a deer breeder, "does not have title to the deer. The deer are considered wild animals, and are property of the people of the State of Texas.").

13 Even though several recent court decisions articulate the government's authority over wild animals in terms of ownership, e.g. , Coastal Habitat All. v. Public Util. Comm'n , 294 S.W.3d 276, 287 (Tex. App.—Austin 2009, no pet.) (stating that wild animals "belong to the State"), our conclusion does not mean the Department owns breeder deer. Like other wild animals, breeder deer "belong[ ] to the people in their collective sovereign capacity." Geer v. Connecticut , 161 U.S. 519, 526, 16 S.Ct. 600, 40 L.Ed. 793 (1896), overruled on other grounds by Hughes v. Oklahoma , 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) (quoting Ex parte Maier , 103 Cal. 476, 37 P. 402, 404 (1894) ). The state's authority over such animals is "not based on ownership, but upon the state's police power to preserve and regulate an important resource." State v. Bartee , 894 S.W.2d 34, 47 (Tex. App.—San Antonio 1994, no pet.) (Rickhoff, J., concurring).

That breeder deer are not common law property does not mean that breeder deer have no legal status or protection under the law. Our holding does not affect the rights conferred by a deer breeder's permit or whether those rights are enforceable against third persons. See, e.g. , Bartee , 894 S.W.2d at 43 & nn.13–14 (concluding that deer held under a previous version of breeder's permit were protected by theft and criminal mischief laws). The rights of hunters who lawfully kill deer are also unaffected. See generally Tex. Parks & Wild. Code §§ 62.021 –.032 ("Sale, Transportation, and Storage of Game"). Peterson nevertheless insists that our construction will destabilize the deer industry by removing any economic incentive to engage in deer breeding, a major component of Texas' hunting industry. On the other hand, various amici with ties to the hunting industry urge that the public trust doctrine is vital to the continuing health of the hunting and deer breeding industries.¹⁴ We do not address these arguments because "[t]he wisdom or expediency of the law is the Legislature's prerogative, not ours." City of Laredo v. Laredo Merchants Ass'n , 550 S.W.3d 586, 589 (Tex. 2018) (quoting Smith v. Davis , 426 S.W.2d 827, 831 (Tex. 1968) ). Subchapter L is clear that deer breeders have no vested property interest in their breeder deer, and we must enforce the statute as written.

14 This Court has received an amicus brief from the Texas Wildlife Association, the Boone and Crockett Club, Texas Chapter of the Wildlife Society, the Association of Fish and Wildlife Agencies, the National Wildlife Federation, the National Wild Turkey Federation, Texas Chapter of the Coastal Conservation Association, the Backcountry Hunters & Anglers, and the Texas and Southwestern Cattle Raisers Association in support of the Department's position.

Our conclusion does not address whether a breeder has a vested right in a breeder's permit. See Anderton , 605 F. App'x at 346–48 (analyzing property interest in breeder's permit separately from interest in deer herd). Peterson asserts in his briefing that "regardless of the captive-bred deer ownership issue" the Department must further show that he has no protected property interest in his breeder's permit. Specifically, he asserts that "the pursuit of one's chosen, lawful occupation" is a protected interest and, as a result, his permit "cannot be taken without procedural due process."¹⁵ The right to pursue a certain occupation is an economic liberty interest protected by the substantive component of the due course of law clause. See Mosley , ––– S.W.3d at ––––, 2019 WL 1977062, at *9 ("Included among the protected liberty interests is the right ‘to engage in any of the common occupations of life.’ " (quoting Than , 901 S.W.2d at 929 )). To establish that an economic regulation is unconstitutional for violating this protection, a party must show either that the law's "purpose could not arguably be rationally related to a legitimate governmental interest" or that "when considered as a whole, the [law's] actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest." Patel , 469 S.W.3d at 87. Peterson alleged in a previous petition that the CWD Rules are unconstitutionally oppressive but his live petition at the time of the district court's ruling omits that claim. See FKM P'ship, Ltd. v. Board of Regents of Univ. of Hous. Sys. , 255 S.W.3d 619, 632 (Tex. 2008) (filing amended petition omitting claim "effectively nonsuits or voluntarily dismisses the omitted claims as of the time the pleading is filed"). Because Peterson elected not to go forward on that claim in the district court, we decline to address it here.¹⁶

15 Peterson cites to House of Tobacco, Inc. v. Calvert , where the Texas Supreme Court held that the Comptroller of Public Accounts could not revoke a permit to distribute cigarettes without providing notice and a hearing. 394 S.W.2d 654, 657–58 (Tex. 1965). Calvert is not applicable here because there is no suggestion that the Department has revoked or intends to revoke Peterson's breeder's permit.

16 We stress that we express no opinion on whether Peterson has a vested right under the terms of his permit.

ATTORNEY'S FEES

Peterson and Bailey challenge the district court's award of $425,862.50 in attorney's fees in their remaining issues. "In any proceeding under [the UDJA], the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code § 37.009. The UDJA "entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law." Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998). "A trial court abuses its discretion by awarding fees when there is insufficient evidence that the fees were reasonable and necessary, or when the award 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).

Jurisdiction to Award Fees

Peterson initially challenges whether the district court had jurisdiction to award fees if it lacked jurisdiction to decide the merits of one of Peterson's claims. This Court has held that courts possess authority to awards fees in that circumstance because the UDJA authorizes courts to award fees "[i]n any proceeding under the UDJA." Id. ; accord Devon Energy Prod. Co., v. KCS Res., LLC , 450 S.W.3d 203, 220 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ; Feldman v. KPMG LLP , 438 S.W.3d 678, 685–86 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ; Castro v. McNabb , 319 S.W.3d 721, 735–36 (Tex. App.—El Paso 2009, no pet.). Peterson asserts these holdings conflict with cases holding an award of fees under the UDJA is unavailable when a party's claim was incidental to its other claims for relief. E.g. , Jackson v. State Office of Admin. Hearings , 351 S.W.3d 290, 301 (Tex. 2011). But Jackson and related cases are based on the principle that a party may not replead a claim under the UDJA to circumvent limits on attorney's fees. Id. ; see MBM Fin. Corp. v. Woodlands Operating Co. , 292 S.W.3d 660, 669 (Tex. 2009). That principle does not preclude an award of fees for defending against another party's claim for declaratory relief. We conclude the district court possessed jurisdiction to award fees for both of Peterson's UDJA claims. See Save Our Springs All. , 304 S.W.3d at 891 ; see also Zurita v. SVH-1 Partners, Ltd. , No. 03-10-00650-CV, 2011 WL 6118573, at *8 (Tex. App.—Austin Dec. 8, 2011, pet. denied) (mem. op.) ("The trial court's conclusion that it lacked jurisdiction to render the requested declarations did not change the nature of the proceeding.").

Jurisdiction over Bailey

Next, Bailey argues the district court lost jurisdiction over him following his nonsuit. A plaintiff has an absolute right to take a nonsuit at any time before introducing all of his evidence other than rebuttal evidence. Tex. R. Civ. P. 162. However, a dismissal "shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief." Id. More specifically, a nonsuit has "no effect on any motion for ... attorney's fees or other costs, pending at the time of dismissal." Id. Bailey does not dispute the Department requested attorney's fees under Section 37.009 in its original answer and that this request was pending at the time of his nonsuit. The district court therefore had power to decide the entirety of the Department's pending claim for attorney's fees. See Villafani v. Trejo , 251 S.W.3d 466, 469 (Tex. 2008) ("[A] plaintiff's nonsuit cannot extinguish a defendant's counterclaim for costs and attorney's fees.").

Segregation

Bailey and Peterson next challenge the district court's refusal to require the Department to segregate its fees. Texas follows the American Rule for attorney's fees, which provides that "a party may not recover attorney's fees unless authorized by statute or contract." Wells Fargo Bank, N.A. v. Murphy , 458 S.W.3d 912, 915 (Tex. 2015). As a result, fee claimants must "segregate fees between claims for which they are recoverable and claims for which they are not." Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299, 311 (Tex. 2006). An exception exists when fees are based on claims arising out of the same transaction that are so intertwined and inseparable as to make segregation impossible. Id. at 313–14. However, "it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated." Id. Whether and the extent to which segregation is required is a mixed question of law and fact. See id. at 313 ; Osborne v. Jauregui, Inc. , 252 S.W.3d 70, 76 (Tex. App.—Austin 2008, pet. denied). The burden is on the party seeking fees to show segregation is not required. Home Comfortable Supplies, Inc. v. Cooper , 544 S.W.3d 899, 911 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

Peterson and Bailey asserted claims under the UDJA and the APA. Unlike the UDJA, the APA does not authorize a court to award attorney's fees. See Texas State Bd. of Veterinary Med. Exam'rs v. Giggleman , 408 S.W.3d 696, 708 (Tex. App.—Austin 2013, no pet.). The Department argues segregating its fees is impossible because both claims turned on whether breeder deer are private property. Peterson and Bailey respond the APA and UDJA claims are distinct because the CWD Rules "do not even purport to address the issue of ownership." They also point out they originally asserted a substantive due process claim. Peterson and Bailey insist the Department has not even attempted to meet its burden, but the Department in fact segregated the fees it incurred responding to Peterson's previously nonsuited claims under the Texas Open Meetings Act. We agree with the Department that further segregation is not required because Peterson and Bailey's various due process claims all depended on the existence of a property interest entitled to constitutional protection. See, e.g. , Klumb , 458 S.W.3d at 15 ("Before any substantive or procedural due-process rights attach, however, the Petitioners must have a liberty or property interest that is entitled to constitutional protection."). Under these circumstances, we conclude the Department carried its burden to show segregation was unnecessary. See Chapa , 212 S.W.3d at 313–14.

Reasonable and Necessary

We now turn to whether the fee award was reasonable and necessary. Whether fees are reasonable and necessary is an issue of fact. Bocquet , 972 S.W.2d at 21. To find an abuse of discretion "when factual matters are in dispute, the reviewing court must conclude that the facts and circumstances of the case extinguish any choice in the matter." In re Mahindra, USA Inc. , 549 S.W.3d 541, 550 (Tex. 2018) (orig. proceeding). Peterson and Bailey assert the Department failed to provide legally sufficient evidence that its fees were reasonable and necessary. See In re National Lloyds Ins. Co. , 532 S.W.3d 794, 809 (Tex. 2017) (orig. proceeding) ("When fee-shifting is authorized, the party seeking to recover those fees bears the burden of establishing the fees are reasonable and necessary.").

To support its fee claim the Department submitted a sworn affidavit executed by Philip Ledbetter, an assistant attorney general experienced in natural resource litigation. Ledbetter employed the lodestar method, which involves multiplying the reasonable hours worked by a reasonable hourly rate. See El Apple I, Ltd. v. Olivas , 370 S.W.3d 757, 760 (Tex. 2012). The Texas Supreme Court recently explained that sufficient evidence to support this calculation "includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services." Venture v. UTSW DVA Healthcare, LLP , No. 16-0006, 578 S.W.3d 469, 498, 2019 WL 1873428, at *20 (Tex. Apr. 26, 2019). Ledbetter explained in his affidavit that he arrived at a reasonable hourly rate for each of the assistant attorneys general assigned to the case by reviewing the average hourly billing rates published in the Texas Lawyer for lawyers practicing in Travis County in relevant practice areas, reviewing the billing records kept by each attorney general working on the case, and consulting with each of them regarding the specific services they performed. Based on this review, Ledbetter individually determined each attorney's reasonable hourly rate and the reasonable hours worked on the case and arrived at a reasonable fee. The Department claimed a total of $1,219,975 in fees but suggested an alternate sum of $425,862.50. The alternate sum represented fees the Department incurred responding to Bailey and Peterson's discovery requests and $62,895 for legal services incurred after Bailey's nonsuit. The district court accepted the alternative suggestion and made Bailey and Peterson jointly and severally liable for $362,967.50 and Peterson individually liable for $62,895.

Peterson and Bailey argue generally that the Department's records are insufficient for the district court to determine whether the assistant attorneys general assigned to the case duplicated each other's work. See El Apple I , 370 S.W.3d at 762 ("Charges for duplicative, excessive, or inadequately documented work should be excluded."). They assert the Department's records are at least as insufficient as the proof supporting the fee award in Long v. Griffin , 442 S.W.3d 253 (Tex. 2014) (per curiam). There, the affidavit supporting the attorney's fees set out the hours worked by each attorney and each attorney's hourly rate, and listed the activities performed during the case. Id. at 255. The Texas Supreme Court held this evidence was too general because there was no evidence "to inform the trial court the time spent on specific tasks." Id. Long does not control here because Ledbetter reviewed (and submitted with his affidavit) fee records detailing specific amounts of time each assistant attorney general spent on tasks such as "Drafting/Revising Documents," "Reviewing/Research Background Info," "Conferring with AG Personnel," and similar categories. We conclude this evidence is sufficiently specific to enable the district court to make a meaningful evaluation of the reasonableness of the fees claimed for each assistant attorney general on the case. See State Farm Lloyds v. Hanson , 500 S.W.3d 84, 99 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (upholding fee award based on time records divided into similar categories).

The Department's request for fees incurred responding to Bailey and Peterson's discovery requests included the fees of contract attorneys the Department hired to review "over 2.75 million documents." Peterson and Bailey contend Ledbetter had insufficient information to determine the contract attorneys' fees were reasonable. Ledbetter submitted with his affidavit time sheets reflecting the name of the contract attorney, the number of hours worked, the date of the work, and that the project was titled "Parks and Wildlife Review." Each time sheet was sent with an invoice (also attached to Ledbetter's affidavit) to Mary Smith, one of the assistant attorneys general assigned to this case, and that billed each contract attorney's time at $30 per hour. We conclude this is sufficient evidence for the district court to make a meaningful evaluation of the reasonableness of the contract attorneys' fees. See Venture , 578 S.W.3d at 497–98, 2019 WL 1873428, at *20.

Equitable and Just

A fee award under the UDJA also must be equitable and just. See Tex. Civ. Prac. & Rem. Code § 37.009. Trial courts have discretion to "conclude that it is not equitable or just to award even reasonable and necessary fees." Bocquet , 972 S.W.2d at 21. The question of whether a fee award is equitable and just "is not susceptible to direct proof but is rather a matter of fairness in light of all the circumstances." Ridge Oil Co., v. Guinn Invs., Inc. , 148 S.W.3d 143, 162 (Tex. 2004).

Peterson and Bailey argue the award was not equitable or just because the assistant attorneys general representing the Department supposedly failed to keep sufficiently detailed time records to segregate their fees, the Department's original fee request was excessive, and bringing this lawsuit likely forced the Department to withdraw the emergency rules and replace them with the more reasonable (but still objectionable) permanent CWD Rules. They further argue ordering private citizens to reimburse the Department is unjust given that the Department has substantially more resources available to it. The Department responds awarding some measures of fees was equitable and just in light of Peterson and Bailey's numerous claims, some of which were novel, the millions of documents reviewed in response to their discovery requests, and the consequences to the deer breeding industry if Peterson and Bailey were successful.

Contrary to the assertions made by Peterson and Bailey, the assistant attorneys general working on the case kept sufficiently detailed records to enable Ledbetter to determine individually what portion of the hours each worked on the case was recoverable and to calculate their fees accordingly. Moreover, it is undisputed that Peterson and Bailey raised novel claims and that their discovery requests required the Department to review an unusually large number of documents. Finally, the reasonableness of the Department's original fee request is not before us because the district court awarded less than half of that sum. Even if the district court could have concluded awarding no fees would be equitable and just under these circumstances, it was not compelled to reach that conclusion here. See Save Our Springs All. , 304 S.W.3d at 893 (upholding fee award because "reasonable minds can differ concerning whether the attorney's fees are just and equitable" (quoting Save Our Springs All., Inc. v. Lazy 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 discretion by making an inequitable or unjust award.

Peterson's Fee Motion

As a final matter, Peterson argues the district court abused its discretion by denying his motion for attorney's fees. A court has discretion to award fees to the non-prevailing party. Barshop v. Medina Cty. Underground Water Conservation Dist. , 925 S.W.2d 618, 637–38 (Tex. 1996). However, a court "is well within its discretion to deny or award attorney's fees 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 overruling Peterson's motion for attorney's fees. See Ochoa v. Craig , 262 S.W.3d 29, 33 (Tex. App.—Dallas 2008, pet. denied) (holding no abuse of discretion in denying Ochoa's fee request because she "did not prevail on her declaratory judgment claim").

We overrule Bailey and Peterson's remaining issues.

CONCLUSION

We affirm the district court's order.

Concurring and Dissenting Opinion by Justice Goodwin

CONCURRING AND DISSENTING OPINION

Melissa Goodwin, Justice

On this record, I agree with the Court's conclusion that the trial court properly dismissed for lack of jurisdiction Peterson's declaratory judgment and ultra vires claims. I disagree, however, with the Court's conclusion that the trial court correctly granted summary judgment on Peterson's due process claims concerning the Texas Parks and Wildlife Code (the Code) and the Department's rules, see 31 Tex. Admin. Code §§ 65.90 – .99 (Tex. Parks & Wildlife Dep't, Chronic Wasting Disease—Movement of Deer) (the CWD Rules). Specifically, I disagree with the analysis regarding whether Peterson has a property interest in his breeder deer and the conclusion that the Code does not "allow[ ] common law property rights to arise in breeder deer." Ante at 393. Our common law tradition—stemming from early English common law and with roots in Roman law—provides that individuals, through the sweat of their brow, may acquire ownership and property rights in wild animals by legally removing them from their natural liberty and making them subject to man's dominion. See, e.g. , State v. Bartee , 894 S.W.2d 34, 41–42 (Tex. App.—San Antonio 1994, no pet.) (describing legal tradition and collecting case authorities). Because the Code does not take away this common law property right, I respectfully dissent.¹

1 Although the Code regulates the possession of wild animals removed from their natural liberty and restricts the means by which ownership may be acquired by specifying the conditions of what may constitute legal captivity, I do not see this as contrary to ownership under the common law.

The Texas Supreme Court has long noted that the preservation of property rights is "one of the most important purposes"—in fact, "[t]he great and chief end"—of government. Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC , 363 S.W.3d 192, 204 (Tex. 2012) (quoting Eggemeyer v. Eggemeyer , 554 S.W.2d 137, 140 (Tex. 1977) and John Locke, Second Treatise of Government Chap. IX, Sec. 124 (C.B. McPherson ed., Hackett Publishing Co. 1980) (1690)). Private property rights "are, in short, a foundational liberty, not a contingent privilege." Id. at 204 n.34 ; see Tex. Const. art. I, § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."). But the decision issued today fails to preserve and protect the fundamental property rights of the deer breeders in their captive-bred white-tailed deer.

I recognize that chronic wasting disease (CWD) poses a significant threat to the deer population and for the people of this state. As shown by both the Department's brief and the amicus brief of various wildlife and hunting associations,² CWD has potential negative impacts for Texas wildlife, for the rich Texas tradition of hunting deer, and for the properties, businesses, and Texas fisc that derive value and revenue from licensing, leasing hunting rights, and supporting the hunting industry. However, measures to address that threat, while worthy, must be consistent with the rule of law. The legislature, as a representative body of the people, has the power to pass laws further restricting the captivity of breeder deer, implementing stricter regulations for deer breeder permits, and creating additional protections against CWD, insofar as they are consistent with our Constitution. And the Department may act within its delegated scope of authority as granted by the legislature. But I cannot agree that the threat of CWD justifies the deprivation of fundamental private property rights without due process contrary to our Constitution and the rule of law.

2 These include: Texas Wildlife Association, Boone and Crockett Club, Texas Chapter of the Wildlife Society, Association of Fish and Wildlife Agencies, The National Wildlife Federation, National Wild Turkey Federation, Texas Chapter of the Coastal Conservation Association, Backcountry Hunters & Anglers, and Texas and Southwestern Cattle Raisers Association.

Because Peterson has a constitutionally protected property interest in his breeder deer, I continue where the Court left off and proceed to the merits of the district court's summary judgment order on Peterson's procedural due process claims. Both parties moved for summary judgment, but neither party met its burden to establish that it was entitled to summary judgment as a matter of law. I would therefore affirm the trial court's denial of Peterson's motion for summary judgment, but reverse the grant of the Department's summary judgment motion. Finally, the Court also affirmed the district court's $425,862.50 attorney's fee award against Peterson and the deer breeder Ken Bailey, who originally brought suit with Peterson but later nonsuited his claims. But because the attorney's fee award was based on, at least in part, the Department's summary judgment success, I would reverse and remand the attorney's fee award.

I. STANDARD OF REVIEW AND LAW ON DUE PROCESS

We review a trial court's summary judgment de novo. City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 259 (Tex. 2018) (citing Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003) ). A traditional movant for summary judgment bears the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P. 166a(c) ; Provident Life , 128 S.W.3d at 215–16 ). When both parties move for summary judgment on the same issues, as they did here, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Id. (citing City of Garland v. Dallas Morning News , 22 S.W.3d 351, 356 (Tex. 2000) ). When the trial court grants one of the motions but denies the other, we consider the summary judgment evidence presented by both sides, determine all questions presented, and if we determine that the trial court erred, render the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005) (citing FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex. 2000) ). When the trial court does not specify the grounds for granting the summary judgment motion, we must uphold the judgment if any of the grounds asserted in the motion and preserved for appellate review are meritorious. Provident Life , 128 S.W.3d at 216.

Here, the summary judgment order granted the Department's motion and denied Peterson's motion, which centered upon Peterson's procedural due process claims against the Department. Due process rights are provided by both the United States Constitution and the Texas Constitution. See U.S. Const. amend. XIV, § 1 ; Tex. Const. art. I, § 19. Because the two clauses are nearly identical, Texas courts "have traditionally followed contemporary federal due process interpretations of procedural due process issues." Honors Acad., Inc. v. Texas Educ. Agency , 555 S.W.3d 54, 61 (Tex. 2018) (quoting University of Tex. Med. Sch. v. Than , 901 S.W.2d 926, 929 (Tex. 1995) ). Before procedural due process rights attach, however, there must be a liberty or property interest that is entitled to constitutional protection. Id. (citing Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 15 (Tex. 2015) ).

II. DISCUSSION

In a due process claim, we apply a two-part analysis: (1) we determine whether Peterson has a property interest that is entitled to procedural due process protection; and (2) if so, we determine what process is due. See id.

A. Does Peterson have a property interest in his breeder deer?

"Property interests ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....’ " Honors Acad. , 555 S.W.3d at 61 (quoting Board of Regents of State Colls. v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ). A constitutionally protected property interest must be based on a " ‘legitimate claim of entitlement’ rather than a mere ‘unilateral expectation.’ " Id. (quoting Roth , 408 U.S. at 577, 92 S.Ct. 2701 ).

In Texas, "[a]ll wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state."³ Tex. Parks & Wild. Code § 1.011(a) ; see also Nicholson v. Smith , 986 S.W.2d 54, 60 (Tex. App.—San Antonio 1999, no pet.) ("Meaning ‘animals of a wild nature or disposition,’ ferae naturae is a common law doctrine tracing its origins back to the Roman empire whereby wild animals are presumed to be owned by no one specifically but by the people generally. Specifically ferae naturae provides that wild animals belong to the state[.]" (citing Bartee , 894 S.W.2d at 41 )). Thus, "no individual property rights [in wild animals] exist as long as the animal remains wild, unconfined, and undomesticated." Hollywood Park Humane Soc'y v. Town of Hollywood Park , 261 S.W.3d 135, 140 (Tex. App.—San Antonio 2008, no pet.).

3 The Texas legislature enacted the original predecessor to this statute in 1907, providing that "All the wild deer ... and all other wild animals, wild birds and wild fowls found within the borders of this State, shall be and the same are hereby declared to be the property of the public." Act of April 19, 1907, 30th Leg., R.S., ch. 144, § 1, 1907 Tex. Gen. Laws 278, 278 (current version at Tex. Parks & Wild. Code § 1.011(a) ).

Under Texas common law, however, "property rights in wild animals can arise when an animal is legally removed from its ‘natural liberty’ and subjected to ‘man's dominion.’ "⁴ Id. (quoting Nicholson , 986 S.W.2d at 60 ); see Jones v. State , 119 Tex.Crim. 126, 45 S.W.2d 612, 614 (Tex. Crim. App. 1931) ("As a general rule, there is no individual property in wild animals or fish so long as they remain wild, unconfined, and in a state of nature, but wild animals become property when removed from their natural liberty and made subjects of man's dominion."); Coastal Habitat All. v. Public Util. Comm'n , 294 S.W.3d 276, 287 (Tex. App.—Austin 2009, no pet.) (stating converse proposition that "under state law, no vested property interest exists in wild animals" because "wild animals[ ] belong to the State, and no individual property rights exist in them as long as they remain wild, unconfined, and undomesticated"); Bartee , 894 S.W.2d at 41 ("Unqualified property rights in wild animals can arise when they are legally removed from their natural liberty and made the subject of man's dominion."); Wiley v. Baker , 597 S.W.2d 3, 5 (Tex. App.—Tyler 1980, no writ) ("Unqualified property rights in wild animals can arise when removed from their natural liberty and made subjects of man's dominion."); Lone Star Gas Co. v. Murchison , 353 S.W.2d 870, 875–76 (Tex. App.—Dallas 1962, writ ref'd n.r.e.) ("From the beginning, wild animals have been regarded as quasi property of the entire human race. ... [E]xclusive property in birds and wild animals becomes vested in the person capturing or reducing them to possession. But unless killed, this is a qualified property, for when restored to their natural wild and free state, the dominion and individual proprietorship of any person over them is at an end and they resume their status as common property.") (quoting Hammonds v. Central Ky. Nat. Gas Co. , 255 Ky. 685, 75 S.W.2d 204, 206 (1934), overruled on other grounds by Texas Am. Energy Corp. v. Citizens Fid. Bank & Tr. Co. , 736 S.W.2d 25 (Ky. 1987) ); see also Hollywood Park Humane Soc'y v. Town of Hollywood Park , No. Civ.A.SA03CA1312-XR, 2004 WL 390807, at *5 (W.D. Tex. Jan. 23, 2004) ("However, it is legally possible for an individual to have qualified property rights in a wild animal.... These property rights are often referred to as qualified, however, because they are lost if the animal regains its liberty." (applying Texas common law)).

4 As the Court notes, "Texas adopted the common law of England as its rule of decision," which holds that "[p]rivate individuals could ‘reduce a part of this common property [in wild animals] to possession, and thus acquire a qualified ownership in it,’ but that right was subject to government regulation." Ante at 390 (quoting Geer v. Connecticut , 161 U.S. 519, 526, 16 S.Ct. 600, 40 L.Ed. 793 (1896), overruled on other grounds by Hughes v. Oklahoma , 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) ).

The Court nevertheless determines that the Code does not "allow[ ] common law property rights to arise in breeder deer." Ante at 393. For this proposition, the Court relies primarily on two statutory provisions. First, the legislature has mandated that "[n]o person may capture, transport, or transplant any game animal or game bird from the wild in this state unless that person has obtained a permit to trap, transport, and transplant from the department." Tex. Parks & Wild. Code § 43.061(a) ; see id. § 63.002 ("No person may possess a live game animal in this state for any purpose not authorized by this code."). Second, the legislature, in 1997, added a provision making clear that erecting a high fence does not affect wild animals' "status ... as property of the people of this state." See Act of May 31, 1997, 75th Leg., R.S., ch. 1256, § 123, 1997 Tex. Gen. Laws 4732, 4757 (codified at Tex. Parks & Wild. Code § 1.013 ). And the Department goes further than the Court, proposing a theory of absolute state ownership of wildlife and arguing that "no individual may own wildlife" and "deer are not amenable to private ownership" because the legislature, in 1991, defined "wild" in terms of "species, including each individual of a species."⁵ See Act of May 24, 1991, 72d Leg., R.S., ch. 424, § 1, 1991 Tex. Gen. Laws 1587, 1587 (codified at Tex. Parks & Wild. Code § 1.101(4) ). As explained below, however, the statutory provisions the Court relies on do not prevent a deer breeder who holds a permit from acquiring ownership of breeder deer through legal captivity under the common law, and the Department is incorrect that the common law rule of ownership is now "obsolete" because "the Code defines ‘wild’ in terms of a species'[s] characteristics, not an individual animal's freedom."

5 The Court does not address the Department's argument that relies on the statutory definition of "wild," instead stating that the Court's "narrower analysis [ ] is sufficient to dispose of Peterson's appeal." Ante at 392 n.10.

1. The Court's analysis

As already noted, the common law rule is that an individual acquires ownership and property rights in a wild animal when it is "removed from its ‘natural liberty’ "—i.e., through legal capture or some other legal means—"and subjected to ‘man's dominion.’ " Hollywood Park , 261 S.W.3d at 140 (quoting Nicholson , 986 S.W.2d at 60 ). Additionally, the Code expressly authorizes the removal of a breeder deer from its natural liberty—"breeder deer may be held in captivity for propagation in this state"—when "a deer breeder's permit is issued by the department." Tex. Parks & Wild. Code § 43.364.

The Court, however, argues that the Code "is clear that deer breeders have no vested property interest in their breeder deer" and does not allow "common law property rights to arise in breeder deer." Ante at 393. I disagree because the Code does not "clearly" express legislative intent to abrogate the common law principle providing property rights to deer breeders who legally remove breeder deer from their natural liberty and subject them to man's dominion, as I explain more fully below. See Dealers Elec. Supply Co. v. Scroggins Constr. Co. , 292 S.W.3d 650, 660 (Tex. 2009) ("But abrogation of common-law rights is disfavored, and absent clear legislative intent we have declined to construe statutes to deprive citizens of common-law rights."); Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc. , 236 S.W.3d 190, 194 (Tex. 2007) ("[S]tatutes can modify common law rules, but before we construe one to do so, we must look carefully to be sure that was what the Legislature intended."); Cash Am. Intern. Inc. v. Bennett , 35 S.W.3d 12, 16 (Tex. 2000) ("A statute that deprives a person of a common-law right ‘will not be extended beyond its plain meaning or applied to cases not clearly within its purview.’ ... We have consistently declined to construe statutes to deprive citizens of common-law rights unless the Legislature clearly expressed that intent." (quoting Satterfield v. Satterfield , 448 S.W.2d 456, 459 (Tex. 1969) )).

Moreover, the Court's analysis does not take into account the temporal nature of legislative enactments when it "constru[es] all the[ ] provisions together against the backdrop of [s]ection 1.011 and the common law" to conclude that "breeder deer are public property" and "deer breeders do not acquire common law property rights in them." See ante at 393 (citing Marino v. Lenoir , 526 S.W.3d 403, 409 (Tex. 2017) ). If the legislature abrogated the common law, the abrogation must have occurred at a specific time by a specific statutory enactment. At issue then is when did the legislature intend to abrogate established common law principles and with what statutory provisions did it clearly express and effectuate that intent. The Court, however, melds statutory provisions that were enacted at different times without identifying which specific provision the legislature enacted at a specific time to clearly express and effectuate its intent to abrogate the common law principle providing for private ownership of breeder deer through legal captivity. See ante at –––– (citing Tex. Parks & Wild. Code §§ 1.011(a), 1.013, 43.061(a), 43.351(1), 43.357(a), 43.364, 43.366, 63.001(a), 63.002 ). Thus, for example, it is unclear if the Court considers the prohibitions on possession of breeder deer, see Tex. Parks & Wild. Code §§ 43.061(a), 63.002, as abrogating the common law before the legislature's 1997 enactment that fences do not affect the property status of the deer, see id. § 1.013, or if it was only with the culminating 1997 enactment regarding fences that the common law was abrogated construed in light of the earlier statutory prohibitions on possession.⁶ See ante at ––––. If the former, then the 1997 enactment as to the fences would play no part in the analysis of whether the legislature abrogated the common law with the earlier enacted statutes. If the latter, then it is the 1997 enactment that must clearly demonstrate the legislature's intent to abrogate the common law. But, as I explain below, no statutory provision in the Code reflects the legislature's intent to abrogate the common law as to the private ownership of breeder deer and thus at no specific time did the legislature effectuate such an intent through a legislative enactment.

6 For similar reasons, I also find the Court's discussion of the public trust doctrine and the 1907 statutory enactment of section 1.011 codifying the public trust doctrine as largely irrelevant to the question of whether the legislature abrogated common law principles. See ante at ––––. The Court does not appear to be arguing that the 1907 enactment of section 1.011 clearly expressed the legislature's intent to abrogate the common law, and subsequent case law demonstrates this point, as I describe above. Thus, the proper question is not whether the Court "should not interpret [s]ection 1.011 as codifying the public trust doctrine because the United States Supreme Court allegedly rejected that doctrine as a ‘19th-century legal fiction,’ " see ante at 391, but whether section 1.011, or another later enacted statute, clearly expressed the legislature's intent to abrogate the common law principle that ownership rights in wild animals could be acquired by dominion through legal captivity. As explained more fully below, the answer to that question, in my opinion, is no.

The Code expressly provides that "the holder of a valid deer breeder's permit" may (1) "engage in the business of breeding deer in the immediate locality for which the permit was issued;" and (2) "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale." Tex. Parks & Wild. Code § 43.357(a) ; see also id. § 43.364. And the Code does not prohibit ownership acquired pursuant to common law principles. See id. § 43.364 ("All breeder deer and increase from breeder deer are under the full force of the laws of this state pertaining to deer."); see also id. § 43.366 ("[B]reeder deer held under a deer breeder's permit are subject to all laws and regulations of this state pertaining to deer except as specifically provided in this subchapter." (emphasis added)). That breeder deer must be "legally held under a permit," id. § 43.351(1), which regulates the possession and use of the breeder deer, does not deprive the deer breeder of its common law property interest in the breeder deer through legal captivity and dominion. See, e.g. , Bartee , 894 S.W.2d at 47–48 (Rickhoff, J., concurring) (noting that "the state has not defined wild animals so as to absolutely exclude from ownership all white-tailed deer within the boundaries of the state" and that analogously "[j]ust because the state heavily regulates personalty such as handguns or automobiles, it does not follow that individuals may not own them").⁷

7 In an analogous situation from oil and gas law—where the rule of capture was adopted from the doctrine of animals ferae naturae—the Texas Supreme Court recognized that "the law of capture" is "recognized as a property right" that is "subject to regulation under the police power of this state" and "the right to be protected against confiscation under the Commission's oil and gas rules is not unconditional or unlimited." Texaco, Inc. v. Railroad Comm'n , 583 S.W.2d 307, 310 (Tex. 1979) (citing Corzelius v. Harrell , 143 Tex. 509, 186 S.W.2d 961 (1945) ); see also Coastal Oil & Gas Corp. v. Garza Energy Tr. , 268 S.W.3d 1, 13 (Tex. 2008) ("The rule of capture is a cornerstone of the oil and gas industry and is fundamental both to property rights and to state regulation."); City of San Marcos v. Texas Comm'n on Envtl. Quality , 128 S.W.3d 264, 270–71 (Tex. App.—Austin 2004, pet. denied) ("The common-law rule of capture is based on the concept that ownership of a migratory resource occurs when one exerts control over it and reduces it to possession." (citing Pierson v. Post , 3 Cai. R. 175, 178, 1805 WL 781 (N.Y. Sup. Ct. 1805) )); but see Humble Oil & Ref. Co. v. West , 508 S.W.2d 812, 817 (Tex. 1974) (noting that Murchison rejected "the doctrine of minerals ferae naturae," which provides that when "extraneous gas which was ‘turned loose’ in the earth and wandered to another's land, the party injecting the stored gas ceased to be the exclusive owner of gas," and instead holding that "the extraneous gas injected for storage by Humble having assumed the character of personal property, remained its property" (citing Lone Star Gas Co. v. Murchison , 353 S.W.2d 870, 879 (Tex. App.—Dallas 1962, writ ref'd n.r.e.) )).

Moreover, although section 1.013 addresses whether fences affect the property status of wild animals, the provision does not speak to whether "captivity" affects the property status:

This code does not prohibit or restrict the owner or occupant of land from constructing or maintaining a fence of any height on the land owned or occupied, and an owner or occupant who constructs such a fence is not liable for the restriction of the movement of wild animals by the fence. The existence of a fence does not affect the status of wild animals as property of the people of this state.

Tex. Parks & Wild. Code § 1.013 (emphasis added). Section 1.013 limits its discussion to the existence of fences and therefore does not prevent ownership through "captivity" and possession of wildlife. See id. The Code defines "[c]aptivity" as "the keeping of a breeder deer in an enclosure suitable for and capable of retaining the breeder deer it is designed to retain at all times under reasonable and ordinary circumstances and to prevent entry by another deer," id. § 43.351(3), but requires that "[a] single enclosure for breeder deer may not contain more than 100 acres," id. § 43.360. Importantly, however, the captivity must be under permit pursuant to the laws of the state—to acquire ownership in wild animals through captivity under common law, the animals must be removed from their natural liberty legally. See Jones , 45 S.W.2d at 614 (qualifying, on rehearing, original opinion's proposition that "wild animals become property removed from their natural liberty and made subjects of man's dominion" with the additional proposition "when such animals were ‘legally’ removed"); see also Bilida v. McCleod , 211 F.3d 166, 173 (1st Cir. 2000) (collecting cases and holding "that a claimant has no property interest in ‘per se contraband,’ i.e. , something that it is illegal merely to possess"); Allen v. Pennsylvania Soc'y for Prevention of Cruelty to Animals , 488 F. Supp. 2d 450, 466 (M.D. Pa. 2007) (recognizing that when animal "property was contraband" there could be "no legitimate property interest in the animals").

Thus, for example, section 1.103 would prevent a person lacking a permit from acquiring ownership in deer contained within high fences because the existence of a fence would not change the property status of the deer and any captivity or possession of the deer would be illegal. See Tex. Parks & Wild. Code §§ 43.364 ("All breeder deer and increase from breeder deer ... may be held in captivity for propagation in this state only after a deer breeder's permit is issued by the department under this subchapter."), 63.002 (prohibiting possession of "a live game animal," including white-tailed deer, except for purposes "authorized by this code"); see also Bartee , 894 S.W.2d at 41 ("A wrongful reducing to possession of creature feræ naturæ cannot form the basis of ownership." (quoting 3A C.J.S. Animals § 8 (1973) )); Bilida , 211 F.3d at 173–74 ("State law makes illegal possession of raccoons taken from the wild without a permit issued by the Department.... This amounts to saying that, under state law, [the pet raccoon] could not be reduced to private ownership and lawfully possessed as property without a permit. Needless to say, this would be a different case if Bilida did have a permit , but she no longer claims ever to have had one." (emphasis added)); 3B C.J.S. Animals § 10 (2019) ("Wild animals reduced from a wild state in compliance with the applicable law become the property of the individual." (emphasis added)). But, on the other hand, the Code authorizes deer breeders with a valid permit to take captive-bred white-tailed deer pursuant to the statutory definition of "captivity," see Tex. Parks & Wild. Code § 43.357(a)(2), and legal captivity leads to the acquisition of property interests in wild animals under common law principles, see, e.g. , Hollywood Park , 261 S.W.3d at 140.

Accordingly, section 1.013—or, for that matter, the Code—is not inconsistent with acquiring property interests in captive-bred white-tailed deer under the common law. The provisions relied on by the Court do not represent "clear legislative intent" to deprive deer breeders of their rights under common law to acquire property rights in their breeder deer. See Dealers Elec. Supply , 292 S.W.3d at 660 ; Cash Am. , 35 S.W.3d at 16. It is not the existence of a fence that affects the property status of the breeder deer, but whether the deer are possessed in legal "captivity" in accordance with common law principles and pursuant to the statutory scheme—i.e., held under a legal permit and "in an enclosure [that does not contain more than 100 acres] suitable for and capable of retaining the breeder deer it is designed to retain at all times under reasonable and ordinary circumstances and to prevent entry by another deer." Tex. Parks & Wild. Code §§ 43.351(3), .360. Because it is undisputed that Peterson legally held the breeder deer under permit and in captivity, I conclude that Peterson acquired a constitutionally protected property interest in the breeder deer and therefore respectfully dissent from the Court's contrary conclusion.⁸

8 The Court also asserts, "The Legislature has specifically provided that a breeder's permit is valid for only a set amount of time" and "nothing in the statute contemplates that the breeder retains any rights over breeder deer after the permit expires or is revoked by the Department." Ante at 393. From this, the Court claims that "allowing private property rights to arise in breeder deer is incompatible with the Legislature's direction that breeder deer are ‘held under a permit’ " because "if breeder deer become private property, the owner's rights would not depend on the status of the permit because private property rights are ‘not derived from the legislature.’ " Ante at 393 (first quoting Tex. Parks & Wild. Code § 43.351(1), then quoting Kopplow Dev., Inc. v. City of San Antonio , 399 S.W.3d 532, 535 (Tex. 2013) ). However, although the Texas Supreme Court has "described the right to own private property" as " ‘not derived from the legislature and as preexisting even constitutions,’ " Kopplow Dev. , 399 S.W.3d at 535 (quoting Eggemeyer v. Eggemeyer , 554 S.W.2d 137, 140 (Tex. 1977) ), it is "the common law and statutes [that] define these rights," Evanston Ins. Co. v. Legacy of Life, Inc. , 370 S.W.3d 377, 383 (Tex. 2012). The legislature can place conditions on what gives rise to and maintains the common law right to a property interest in breeder deer by statutorily defining what constitutes legal captivity—e.g., by requiring that breeder deer are held under permit. See Tex. Parks & Wild. Code §§ 43.351(1), (3), .360; see also 2 William Blackstone, Commentaries on the Laws of England , 393 (St. George Tucker ed., 2d ed. 1803) ("In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible.... But while they thus continue my qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly mine."). To the extent the Court is raising the hypothetical question of whether a deer breeder maintains ownership over the deer if the Department did not renew the breeder's permit, that question is not before the Court on this record and I therefore would not resolve it here.

2. The Department's analysis

The Department, on the other hand, relies on the legislature's 1991 enactment that statutorily defines "wild" to mean "a species, including each individual of a species, that normally lives in a state of nature and is not ordinarily domesticated." Id. § 1.101(4). The Department claims that deer breeders holding permits are bailees, and the people of the state, acting through the Department, are the bailors. Deer breeders, as bailees, "have only a possessory right that they may assert against third parties who steal from them," "[t]hey do not have ownership or any rights superior to the State." The Department does not dispute that Texas common law and the statutory framework permitted private ownership through legal captivity and dominion of wild animals before 1991 because "the Legislature had not yet ... defined ‘wild’ in terms of species." But the Department argues that with the 1991 statutory enactment of the definition of "wild" the state acquired absolute ownership of all wildlife, thereby making the common law rule "obsolete."

I agree with the Department that the common law provided for private ownership through legal captivity and dominion before 1991. But I disagree that the common law rule became "obsolete" in 1991. If private ownership is per se prohibited because "wild" is defined in terms of "species" and wild animals are therefore owned by the state regardless of confinement, then the later 1997 statutory enactment declaring that fences do not affect wild animals' status as property of the people of this state would be redundant and mere surplusage. See Tex. Gov't Code § 311.021 (providing that it is presumed entire statute is intended to be effective); TIC Energy & Chem., Inc. v. Martin , 498 S.W.3d 68, 74 (Tex. 2016) ("[W]e consider the statute as a whole, giving effect to each provision so that none is rendered meaningless or mere surplusage."). The fact that the legislature specified that the existence of fences does not affect property status, implies that other conditions—e.g., legal captivity under permit—could affect the property status of wild animals under common law principles, notwithstanding the 1991 statutory enactment defining "wild" in terms of species's characteristics. See Mid-Century Ins. Co. of Tex. v. Kidd , 997 S.W.2d 265, 273 (Tex. 1999) (recognizing "the doctrine of expressio unius est exclusio alterius , the maxim that the expression of one implies the exclusion of others").

Moreover, statutory provisions in the Texas Health and Safety Code expressly contemplate the ownership of wild animals by entities other than the state, which is contrary to the Department's theory that the state has absolute ownership in wild animals.⁹ For example, section 822.103, enacted in 2001, contemplates that a person may "own ... a dangerous wild animal" if "the person holds a certificate of registration for that animal issued by an animal registration agency."¹⁰ Tex. Health & Safety Code § 822.103. But under the Department's theory, a person could not own a dangerous wild animal pursuant to section 822.103 because section 1.011(a) of the Code prevents any private ownership of any wild animal. Compare id. , with Tex. Parks & Wild. Code § 1.011(a). And the Department's theory would further upend current property expectations expressly contemplated by chapter 822—e.g., the ownership of wild animals by circus companies, biomedical research facilities, zoos and aquariums, and colleges and universities as mascots. See, e.g. , Tex. Health & Safety Code § 822.102(a)(6), (8), (10), (11) (exempting these entities from subchapter E's requirements); see also id. §§ 822.107–13 (imposing requirements, restrictions, and liabilities on "[a]n owner of a dangerous wild animal").¹¹

9 "In the construction of an act, a court should consider all laws in pari materia, that is to say, all laws related to the subject of the act and the general system of legislation of which the act forms a part." Reed v. State Dep't of Licensing & Regulation , 820 S.W.2d 1, 2 (Tex. App.—Austin 1991, no writ) ; see also State v. Bartee , 894 S.W.2d 34, 45 (Tex. App.—San Antonio 1994, no pet.) (noting that courts may use statutory construction principle of in pari materia in determining legislative intent where "[s]tatutes that deal with the same general subject ... or relate to the same person or thing or class of persons or things, are considered to be in pari materia although they contain no reference to one another, and although they may have been enacted at different times").

10 The Department regulated the ownership of dangerous wild animals under chapter 12G of the Texas Parks and Wildlife Code until 1997, when the legislature repealed the chapter. See House Comm. on Cty. Affairs, Bill Analysis, Tex. H.B. 1362, 77th Leg., R.S. (2001). In 2001, the legislature passed subchapter E of chapter 822 of the Texas Health and Safety Code, regulating dangerous wild animals. See Act of April 26, 2001, 77th Leg., R.S., ch. 54, § 1, 2001 Tex. Gen. Laws 90, 90 (codified at Tex. Health & Safety Code §§ 822.101 –.116); see also Tex. Health & Safety Code § 822.102(4) (defining "[d]angerous wild animal").

11 Moreover, the Department's own rules contemplate private ownership of deer contrary to its theory of absolute state ownership. See 31 Tex. Admin. Code § 65.133(b) (Tex. Parks & Wildlife Dep't, General Provisions) ("[Buck deer held under a scientific breeder's permit] remain private property and may be recaptured[.]" (emphasis added)).

At issue here, then, is what it means for wild animals—as defined in terms of species's characteristics—to be "the property of the people of this state," see Tex. Parks & Wild. Code §§ 1.011(a), .101(4), and whether this precludes deer breeders from having private property rights through legally capturing white-tailed deer in compliance with the Code. "[P]roperty of the people of this state" is not defined by the Code, although our sister court has explained that "[t]he phrase ‘property of the people of this state’ has been interpreted ... to mean that ownership of wild animals is in ‘the state’ or belongs to ‘the state.’ " Hollywood Park , 261 S.W.3d at 140. For this proposition, Hollywood Park cites Bartee , see id. , and Bartee states:

With regard to the ownership of wild animals, we do not find that the various statutes enacted over the years have departed from the common law. The statutory phrase ‘property of the people of this state’ does not appear to have been interpreted by our courts. Despite its use in various statutes over the years, our courts have consistently referred to the ownership of wild animals as being in ‘the state’ or belonging to ‘the state.’

894 S.W.2d at 42. But Bartee relies on three cases that are not interpreting the phrase "the property of the people of this state" in the statute, rather they are discussing common law principles. See Wiley , 597 S.W.2d at 5 ("The common law provides that animals ferae naturae belong to the state." (citing Jones , 45 S.W.2d at 613–14 )); see also Dobie v. State , 120 Tex.Crim. 72, 48 S.W.2d 289, 290 (Tex. Crim. App. 1932) (describing ownership of wild game as "in the state"); Jones , 45 S.W.2d at 613 (describing "general principles" of common law and stating "animals ferae naturae belong to the state"). And one of the cases— Dobie —qualifies its interpretation of public ownership as follows:

The ownership of wild game, so far as it is capable of ownership , is in the state for the benefit of all its people in common, and it is within the police power of the state Legislature, subject to constitutional restrictions, to make such general or special laws as may be reasonably necessary for the protection of public rights in such game, and within such power is the right to regulate the method of taking or hunting game in the state.

Id. (emphasis added). Dobie effectively questions whether wild game is even "capable of ownership" and therefore does not stand for the proposition that wild game is owned by the state as the term "owned" is traditionally conceived.

Moreover, section 1.011(a) declares wild animals as property "of the people of this state," not property of the state. See Tex. Parks & Wild. Code § 1.011(a). Wild animals belong to the state as a sovereign, not as a proprietary owner, so far as wild animals are capable of ownership. See, e.g. , Ex parte Blardone , 55 Tex.Crim. 189, 115 S.W. 838, 840 (Tex. Crim. App. 1909) ("[T]he common ownership of game, which otherwise would remain in the body of the people, is lodged in the state, to be exercised, like all other governmental powers, in the state in its sovereign capacity , to be exercised in trust for the benefit of the people, and subject, of course, to such regulations and restrictions as the sovereign power may see fit to impose. Such regulations appropriately fall within the domain of the police power of the state." (emphasis added)); 3B C.J.S. Animals § 9 (2019) ("The State's ownership of wild animals is in its sovereign, as distinguished from its proprietary, capacity, and it may regulate the taking and reduction to possession of wild animals."). Thus, we must inquire into what it means for a sovereign in its sovereign capacity to "own" wild animals, insofar as wild animals are capable of ownership, and whether this precludes private ownership.

"All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it." American Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 878 (Tex. 2001) (quoting McBride v. Clayton , 140 Tex. 71, 166 S.W.2d 125, 128 (1943) ); see also Cities of Conroe, Magnolia, & Splendora v. Paxton , 559 S.W.3d 656, 669 (Tex. App.—Austin 2018, pet. filed) ("Although we generally ascribe the ‘plain’ or ‘ordinary’ meaning to the words chosen, we must also take account of ... technical meanings apparent from statutory or jurisprudential context."). And "we may ... look to federal cases for guidance on the meaning of terms not otherwise defined." Paxton v. City of Dallas , 509 S.W.3d 247, 258 (Tex. 2017).

Here, the development of the U.S. Supreme Court's understanding of the theory of public ownership of wild animals from Geer v. Connecticut , 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896), through Hughes v. Oklahoma , 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979), overruling of Geer is instructive,¹² and the legislature is presumed to have enacted the statutory definition of "wild" in 1991 with knowledge of the U.S. Supreme Court's jurisprudential statements as to public ownership of wild animals. In describing this transition, the U.S. Supreme Court explained that "[i]n expressly overruling Geer ... this Court traced the demise of the public ownership theory and definitively recast it as ‘but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’ " Sporhase v. Nebraska, ex rel. Douglas , 458 U.S. 941, 950–51, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982) (quoting Hughes , 441 U.S. at 334, 99 S.Ct. 1727 ); see Hughes , 441 U.S. at 341 & n.5, 99 S.Ct. 1727 (Rehnquist, J., dissenting) (noting that State does not own wild creatures within its borders "in any conventional sense of the word" and even "[t]he Geer Court itself did not use the term ‘ownership’ in any proprietary sense"); see also Baldwin v. Fish & Game Comm'n , 436 U.S. 371, 385, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) (recognizing that "the States' interest in regulating and controlling those things they claim to ‘own,’ including wildlife, is by no means absolute"); Douglas v. Seacoast Prods., Inc. , 431 U.S. 265, 284, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977) (positing that "[n]either the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture" and that the " ‘ownership’ language" of earlier cases "must be understood as no more than a 19th-century legal fiction expressing the importance to its people that a State have power to preserve and regulate the exploitation of an important resource"); Toomer v. Witsell , 334 U.S. 385, 402, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) ("The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.").

12 I agree with the Court that Hughes , 441 U.S. at 335, 99 S.Ct. 1727, does not control the validity of sections 1.011 and 1.101(4) because "Hughes concerned challenges to state statutes under the Commerce Clause of the United States Constitution" that are not at issue here. Ante at 391. Nevertheless, Hughes is persuasive in providing an understanding of how sections 1.011 and 1.101(4) should be interpreted, even though Hughes is not binding authority on this issue.

The theory of public ownership of wildlife was questioned because there is no basis for state ownership as understood in the traditional proprietary sense. See, e.g. , Baldwin , 436 U.S. at 392, 98 S.Ct. 1852 (Burger, C.J., concurring) ("A State does not ‘own’ wild birds and animals in the same way that it may own other natural resources such as land, oil, or timber."). The rationale underlying the demise of the public ownership theory is summarily stated by Justice Holmes in Missouri v. Holland : "To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership." 252 U.S. 416, 434, 40 S.Ct. 382, 64 L.Ed. 641 (1920) ; see Idaho ex rel. Evans v. Oregon , 462 U.S. 1017, 1025, 103 S.Ct. 2817, 77 L.Ed.2d 387 (1983) ("[N]o State has a pre-existing legal right of ownership in the fish[.]" (citing Hughes , 441 U.S. at 329–36, 99 S.Ct. 1727 )); Geer , 161 U.S. at 540, 16 S.Ct. 600 (Field, J., dissenting) ("The wild bird in the air belongs to no one, but when the fowler brings it to the earth and takes it into his possession, it is his property. He has reduced it to his control by his own labor, and the law of nature and the law of society recognize his exclusive right to it."); Bartee , 894 S.W.2d at 47 (Rickhoff, J., concurring) (noting "property in [wild] animals is acquired by occupance only" and "[a]s a general rule, wild fish, birds and animals are owned by no one[, p]roperty rights in them are obtained by reducing them to possession" (first quoting Pierson v. Post , 3 Cai. R. 175, 1805 WL 781 (N.Y. Sup. Ct. 1805) ; then quoting United States v. Long Cove Seafood, Inc. , 582 F.2d 159, 163 (2d Cir. 1978) )); see also Hollywood Park , 2004 WL 390807, at *5 ("Deer, like fish, are ferae naturae , capable of ownership only by possession and control."); 3B C.J.S. Animals § 8 (2019) ("No one owns animals in the proprietary sense when they are in their natural habitat unless and until they are reduced to something akin to possession."); Richard A. Epstein, The Modern Uses of Ancient Law , 48 S.C. L. Rev. 243, 251 & n.28 (1997) (noting that Geer majority relied on "early Roman sources, which were duly mistranslated from res nullius to res communis"; "[t]he better conclusion was that because wild animals had no owner, they were considered unowned"); Carol M. Rose, Possession as the Origin of Property , 52 U. Chi. L. Rev. 73, 74 (1985) ("For the common law, possession or ‘occupancy’ is the origin of property."). This explanation provides context to the qualification enunciated in the Dobie opinion that "ownership of wild game, so far is it capable of ownership, is in the state for the benefit of all its people in common." Dobie , 48 S.W.2d at 290.

In short, "[a] state does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture." Toomer , 334 U.S. at 402, 68 S.Ct. 1156 ; see also Baldwin , 436 U.S. at 405, 98 S.Ct. 1852 (Brennan, J., dissenting) ("The lingering death of the [state-ownership] doctrine as applied to a State's wildlife, begun with the thrust of Mr. Justice Holmes' blade in Missouri v. Holland , 252 U.S. [at 434], 40 S.Ct. 382 ... and aided by increasingly deep twists of the knife in [intervening cases] finally became a reality in Douglas v. Seacoast Products, Inc. , [431 U.S. at 284, 97 S.Ct. 1740 ].").

Following the understanding of "public ownership" enunciated in these cases, the statutory provisions declaring that wild animals are the "property of the people of this state" and defining "wild" to be a species's characteristic should not be understood as a traditional conception of ownership—i.e., proprietorship—over all animals within the species regardless of possession, but rather as a fiction expressive in legal shorthand of the importance to its people that the state has the power to preserve and regulate the exploitation of an important resource. See Clajon Prod. Corp. v. Petera , 854 F. Supp. 843, 851 (D. Wyo. 1994) (interpreting Wyoming's statutory declaration that state owns wildlife as "such a claim of ownership [that] is nothing more than a shorthand expression for preserving the state's power to regulate natural resources within its borders" (citing Hughes , 441 U.S. at 335–365, 99 S.Ct. 1727 )), aff'd in part, appeal dismissed in part , 70 F.3d 1566 (10th Cir. 1995) ; Simpson v. Dep't of Fish & Wildlife , 242 Or.App. 287, 255 P.3d 565, 573 (2011) (interpreting similar statute as "the state's property interest in wildlife is sovereign, not proprietary" and that it follows that "the state's property interest in wildlife under ORS 498.002(1) is not a proprietary or possessory interest that amounts to ownership, as ownership is commonly understood" (citing Or. Rev. Stat. § 498.002(1) )); Potts v. Davis , 149 Pa.Cmwlth. 8, 610 A.2d 74, 75 n.2 (1990) (interpreting similar statute as " ‘ownership language’ " that should be understood " ‘as no more than a 19th-century legal fiction’ " (citing Pa. Cons. Stat. § 103; quoting Douglas , 431 U.S. at 284, 97 S.Ct. 1740 ;)), aff'd , 530 Pa. 534, 610 A.2d 42 (1992) (per curiam).¹³

13 Moreover, if this Court were to construe section 1.011(a) of the Texas Parks & Wildlife Code taken to its extreme as giving the state actual ownership of all wild animals, rather than sovereign ownership, the Court's interpretation may have significant implications for takings or liability claims against the state for private property damaged by wildlife. See Christy v. Hodel , 857 F.2d 1324, 1334 (9th Cir. 1988) (collecting cases that have rejected a takings claim for private property damages by protected wildlife and noting federal government does not owe compensation because "[t]he federal government does not ‘own’ the wild animals it protects, nor does the government control the conduct of such animals" (citing Douglas v. Seacoast Prods., Inc. , 431 U.S. 265, 284, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977) ); Clajon Prod. Corp. v. Petera , 854 F. Supp. 843, 853 (D. Wyo. 1994) ("Because wild animals are owned, in the proprietary sense, by no one, including the state, it follows a fortiori that there has been no physical invasion of the plaintiffs' property which is attributable to the state" and thus "the state cannot be held accountable for the animals' presence or any forage damage that they cause, and therefore, the plaintiffs' physical takings claims must fail."), aff'd in part, appeal dismissed in part , 70 F.3d 1566 (10th Cir. 1995) ; Metier v. Cooper Transp. Co. , 378 N.W.2d 907, 914 (Iowa 1985) (interpreting statute that gives "title and ownership" of all wild game to the state as more properly "characterized as an ownership or title in trust, to conserve natural resources for the benefit of all Iowans" and "[t]o hold the State liable for all the conduct of its wild animals in every situation would pose intractable problems, and intolerable risks to the ultimate ability of the State to administer its trust"); see also Union Pac. R.R. v. Nami , 498 S.W.3d 890, 896–97 (Tex. 2016) ("Broadly speaking, and with various exceptions ... a person who owns, possesses, or harbors a wild animal is strictly liable for its actions.").

Thus, I conclude that deer breeders with a permit have a property interest in their breeder deer under common law principles after legally taking the deer from their natural liberty and keeping them in captivity pursuant to state law, while the state maintains sovereign "ownership"—as a legal fiction and distinguished from proprietary ownership.¹⁴ See Hughes , 441 U.S. at 335–36, 99 S.Ct. 1727 ("At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the commerce clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership."); Munn v. State of Illinois , 94 U.S. 113, 134, 24 L.Ed. 77 (1876) ("Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations."); Bartee , 894 S.W.2d at 47 (Rickhoff, J., concurring) ("Federal and state authority over wildlife is not based on ownership, but upon the state's police power to preserve and regulate an important resource." (citing Toomer , 334 U.S. at 402, 68 S.Ct. 1156 )).¹⁵ In sum, sovereign "ownership" describes the state's authority to regulate wildlife for the benefit of the people in a manner consistent with our Constitution and the laws of our state, but sovereign ownership of wildlife is not proprietary ownership and therefore does not necessarily preclude an individual from acquiring ownership through legal possession and captivity of wild animals.¹⁶ B. What process is due?

14 Because I conclude that Peterson has a constitutionally protected property interest under common law, I do not address whether Peterson has a property interest under the terms of his permit as provided by statute. See, e.g. , Tex. Parks & Wild. Code § 43.357(a).

15 But see Anderton v. Texas Parks and Wildlife Dep't , 605 F. App'x 339, 347 (5th Cir. 2015) (per curiam); In re Wheeler , 431 B.R. 158, 160 (Bankr. N.D. Tex. 2005). However, Anderton and Wheeler never considered how common law principles applied to taking ownership of wild animals in relation to the state. Anderton , 605 F. App'x at 348 n.4 ; Wheeler , 431 B.R. at 160. Moreover, the Andertons were not permit holders when the deer were killed, making possession illegal. Anderton , 605 F. App'x at 348 ("Nowhere do the statutes or regulations state that breeder deer become the property of a permit holder. Regardless, even if they did give ownership of breeder deer to permit holders, the Andertons were not permit holders when the deer were killed.").

16 The Department makes two additional arguments. First, it argues that "[t]he State's conservation of natural resources is premised on public ownership," citing section 59(a) of article 16 of the Texas Constitution. But section 59(a) of the Texas Constitution is not self executing and instead requires that "the Legislature shall pass all such laws as may be appropriate thereto." Tex. Const. art. XVI, § 59 (a); see City of Corpus Christi v. City of Pleasanton , 154 Tex. 289, 276 S.W.2d 798, 803 (1955) (holding that section 59(a) "was not self enacting" and "[b]y the very terms of the Amendment the duty was enjoined upon the Legislature to implement the public policy found therein"; "[n]o such duty was or could have been delegated to the courts" but "[i]t belongs exclusively to the legislative branch of the government"); see also Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. , 176 S.W.3d 746, 782 (Tex. 2005) ; Hendee v. Dewhurst , 228 S.W.3d 354, 373 (Tex. App.—Austin 2007, pet. denied). Thus, even assuming that the Conservation Amendment was premised on public ownership, it is not the province of the judiciary to apply the Conservation Amendment and declare public ownership of natural resources under that Constitutional provision.
Second, the Department argues that the Texas Supreme Court "held that when the State grants use of a public resource through a permit, the State retains ‘rights as the owner of the’ resource." Texas Water Rights Comm'n v. Wright , 464 S.W.2d 642, 648 (Tex. 1971). But in Wright , "the permittees received only the right to use the water for beneficial purposes," i.e., "to divert water for irrigation purposes from the Rio Grande River." Id. at 644, 647. Here, in contrast, the Code authorizes a "holder of a valid deer breeder's permit" to "sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale," a significantly greater portion of the bundle of rights constituting property. Tex. Parks & Wild. Code § 43.357(a)(2) ; see Evanston Ins. Co. v. Legacy of Life, Inc. , 370 S.W.3d 377, 383 (Tex. 2012) (listing core rights in "bundle of property rights" and noting "[w]e have never required a person to possess the full, unfettered bundle of property rights for a thing to be classified as their property"). And, as I have shown above, the common law provides for ownership of wild animals through legal captivity. Moreover, the issue in Wright concerned the forfeiture of water rights from nonuse of the permit—i.e., the permittees no longer appropriated any water for beneficial use from the "corpus of the water" that "[t]he State was at all times the owner." 464 S.W.2d at 647–48. Thus, the Wright Court held that "Permittees at no time were vested with the right of non-use of the water for an indefinite period of time. At all relevant times, the State had rights as the owner of the water." Id. at 648. In contrast, Peterson held the breeder deer in legal captivity, was granted more than just a usufructuary right in his permit, and never stopped relying on his permit to continue breeding his deer consistent with the laws of the state. Wright is inapposite here.

Having established that Peterson has a constitutionally protected property interest, I now turn to what process is due and whether the trial court properly granted the Department's motion for summary judgment and denied Peterson's motion for summary judgment as to Peterson's due process claims. As an initial matter, I note that "[t]he constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances." Harrell v. State , 286 S.W.3d 315, 319 (Tex. 2009) (quoting Landon v. Plasencia , 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ). Thus, an essential component of a due process claim is determining the amount of process due given the circumstances. To determine the amount of process due, three Eldridge factors are balanced: (1) "the private interest that will be affected by the official action;" (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;" and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. at 319–20 (quoting Mathews v. Eldridge , 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ).

Peterson's motion for summary judgment, however, did not cite, analyze, or provide evidence of these factors establishing the amount of process due, given his circumstances. Nor did Peterson address these factors on appeal. Because he did not establish the amount of process due, Peterson failed to meet his burden of establishing as a matter of law that he is entitled to summary judgment on his procedural due process claims. See Tex. R. Civ. P. 166a ; City of Richardson , 539 S.W.3d at 259. The district court did not err in denying Peterson's motion for summary judgment.

In addition to arguing that Peterson has no constitutionally protected property interest, the Department in its motion for summary judgment argued that "even if [Peterson] had a protected interest and even if he had been denied a transfer permit, the deer-breeder industry's interest in prompt permits would outweigh the incidental benefit of the burdensome procedures Peterson demands: a contested-case hearing for transfer permits."¹⁷ Assuming without deciding that the Department had sufficiently established that the Eldridge factors weigh against Peterson's proposed procedures, the Department nevertheless has not met its summary judgment burden to establish that the procedures already established under the Code and the CWD Rules satisfy the amount of process due. In other words, demonstrating that Peterson's putatively proposed procedures are unduly burdensome and more than the amount of process due does not meet the Department's burden to establish as a matter of law that it is entitled to summary judgment because the current established process under the Code and CWD Rules satisfies the amount of process due.¹⁸ Because the Department failed to meet its burden to establish as a matter of law that it was entitled to summary judgment on Peterson's due process claims, I conclude that the district court erred in granting the Department's summary judgment motion and would reverse the order as to that issue.¹⁹ See Tex. R. Civ. P. 166a ; City of Richardson , 539 S.W.3d at 259.

17 The Department also argued that Peterson lacks standing because he testified in his deposition that the Department never denied his transfer permit and therefore his alleged injury is not "concrete and particularized, actual or imminent, not hypothetical." See DaimlerChrysler Corp. v. Inman , 252 S.W.3d 299, 304 (Tex. 2008). Peterson responded that he obtained the necessary transfer permits "because he tested to the level required by the CWD [R]ules to obtain such permits" and if he had not properly tested and then transferred deer "he would have been subject to criminal sanctions" and would "have jeopardized his [deer breeder] permit." See 31 Tex. Admin. Code §§ 65.89 (Penalties), .99(c) (Violations and Penalties). Peterson also submitted an affidavit that he "had to reduce the size of [his] herd [from 100 deer to 56] because of the ... new CWD testing rules and because the CWD [R]ules, the Parks & Wildlife questioning of ownership, and the restrictions on release sites have combined to depress the market for breeder deer" and that he would have a "loss that is more like $7,000.00 to $20,000.00" to comply with the testing requirements. By alleging that the Code and CWD Rules restricted Peterson's use of his property and caused him to incur additional expenses, Peterson has demonstrated "the required actual, concrete, and particularized infringement of [his] legally protected interests necessary for standing." See Stop the Ordinances Please v. City of New Braunfels , 306 S.W.3d 919, 928 (Tex. App.—Austin 2010, no pet.) (collecting cases; holding that alleging ordinance restricted use of property, caused additional expenses, and damaged or destroyed market satisfied standing requirement; and noting plaintiff is not required to allege "deprivation of a ‘vested right’ constituting a due-process violation to demonstrate the requisite infringement of a ‘legally protected interest’ ").

18 The Department argued in its motion that a " ‘statewide transport ban’ applied to all deer breeders would not violate due process" because "Peterson was afforded the process he was due during the enactment of the legislation and adoption of the rules following notice-and-comment procedures," citing Lee v. Texas Workers' Comp. Comm'n , 272 S.W.3d 806, 818 (Tex. App.—Austin 2008, no pet.). Before this Court, it asserts that "[e]ven if we assume that Peterson owns the breeder deer the State has allowed him to possess, he still would have no due-process claim, because he has received all the process he was due concerning his ability to transfer deer." The reasoning, according to the Department, is that the Lee Court held that procedural due process rights "do not attach where the action resulting in the alleged deprivation of property rights is legislative, rather than administrative"; "[w]hen the legislature enacts a law that affects a general class of person, those persons have received procedural due process by the legislative process itself"; and the same principle applies to administrative procedures when the legislature provides the agency with discretion and chooses not "to grant further administrative procedures." See id. at 818.
However Lee concerned an entitlement benefit created by a statute—i.e., Lee's admission to an agency's approved doctor list required for eligibility to treat injured patients and to receive payment under the workers' compensation system. See id. at 809 (citing Tex. Labor Code § 408.022 ); see also id. at 816–17. Thus, Lee concerned an alleged property interest that was "created and ... defined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms." Id. at 817. The Lee Court then noted the principle that "[w]here, however, the legislature leaves final determination of which eligible individuals receive benefits to the unfettered discretion of administrators, no constitutionally protected property interest exists." Id. at 817–18 (citing Board of Regents of State Colls. v. Roth , 408 U.S. 564, 567, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ). Concluding that the statute provided the agency with discretion to decide whether a doctor's application will be approved, the Lee court held that "there is no constitutionally protected property interest in being admitted to the approved doctor list under the Texas Workers' Compensation Act." Id. at 819.
Here, in contrast, the property interest is not an entitlement benefit created by statute, but one arising out of longstanding common law principles, although regulated by statute. Nor does the Department have "unfettered discretion" in restricting that interest. Although the Department is authorized to establish "procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer," Tex. Parks & Wild. Code § 43.357(b)(5), the legislature also provided that a "holder of a valid deer breeder's permit may ... transfer to another person ... live breeder deer for the purpose of propagation or sale," id. 43.357(a)(2) ; see Tex. Gov't Code § 311.016(1) (" ‘May’ creates discretionary authority or grants permission or a power."). Lee does not control here. By citing Lee and asserting that due process was satisfied through "the enactment of the legislation and adoption of the rules following notice-and-comment procedures," the Department did not meet its burden to establish that it was entitled to summary judgment on Peterson's due process claims.

19 On appeal, the Department also challenges jurisdiction over Peterson's due process claims under the UDJA as redundant with Peterson's APA claims. See Texas Dep't of State Health Servs. v. Balquinta , 429 S.W.3d 726, 746 (Tex. App.—Austin 2014, pet. dism'd) ("[A] trial court lacks jurisdiction over an additional claim under the UDJA that would merely determine the same issues and provide what is substantively the same relief that would be provided by the other statutory remedy."). Nevertheless, when a party challenges both rules and statutes, as Peterson did, the "UDJA claims are not barred by the redundant remedies doctrine" because "the [plaintiffs] cannot attack the constitutionality of the statutes pursuant to Section 2001.038 of the APA." Patel v. Texas Dep't of Licensing & Regulation , 469 S.W.3d 69, 80 (Tex. 2015).

C. Attorney's fees

As to the question of attorney's fees, I agree with the Court that the district court had jurisdiction to award attorney's fees under the Uniform Declaratory Judgment Act (UDJA), including against Bailey. But "[w]here the extent to which a party prevailed has changed on appeal, our practice has been to remand the issue of attorney fees to the trial court for reconsideration of what is equitable and just." Morath v. Texas Taxpayer & Student Fairness Coal. , 490 S.W.3d 826, 885 (Tex. 2016) (remanding attorney's fee issue "as to all parties"); see Tex. Civ. Prac. & Rem. Code § 37.009 ; Barshop v. Medina Cty. Underground Water Conservation Dist. , 925 S.W.2d 618, 637–38 (Tex. 1996). Because my disposition on appeal would substantially affect the district court's judgment, I would reverse the district court's order on attorney's fees and remand so that the trial court can address what attorney's fees, if any, should be awarded under the UDJA. See Morath , 490 S.W.3d at 885 ; Barshop , 925 S.W.2d at 637–38 ; Bank of N.Y. Mellon v. Soniavou Books, LLC , 403 S.W.3d 900, 907 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

III. CONCLUSION

For these reasons, I concur with the Court's holding affirming the dismissal of Peterson's declaratory judgment and ultra vires claims, but respectfully dissent from affirming the district court's order granting the Department's summary judgment motion, awarding attorney's fees to the Department, and denying Peterson's motion for attorney's fees. I would instead reverse and remand as to those issues.