Kyle McClenagan
A little-known legal precedent dating back to the Republic of Texas currently allows livestock to roam free in Brazos County, but thanks to two petitions started by a local man voters will be able to decide whether this antiquated law remains on the books.
The Brazos County Commissioners Court on Tuesday recognized two petitions regarding the county’s stock laws. The first petition, which requests that the county hold an election to decide where cattle could continue to freely roam across the county, received 79 confirmed signatures (25 were required). The second petition, requesting the same thing but for horses, jacks, jennets, donkeys, hogs, sheep and goats, received 77 of the required 50 confirmed signatures. According to the county, the signatures had to be from registered voters who owned property.
Lifetime Brazos County resident Richard Potts, 87, was behind the creation of the two petitions and said he began the project after coming to the surprising discovery that Brazos County still technically allowed livestock to roam free.
People are also reading…
“I looked into it about five years ago, just out of curiosity,” Potts told The Eagle. “It was open range and if you wanted [someone else’s] cattle off your property, you have to build a fence to protect your own property instead of [the livestock owner] building a fence to keep them in.”
The idea of allowing free-range cattle goes all the way back to the Republic of Texas, which passed a law “defining lawful enclosures” on Feb. 5, 1840. According to the law, “every gardener, farmer or planter” was required to build a fence of at least five feet high and “sufficiently close to prevent hogs from passing through.”
The law did not apply to ranchers and stated that if another person’s livestock trespassed on another man’s land, they could only receive compensation for damage done by the trespassing animal if they could prove that they had built an adequate fence around their property.
In other words, it was the responsibility of the landowner to protect their land from roaming livestock and not the responsibility of livestock owners to corral their animals.
In 1896, the law was challenged in the Texas State Supreme Court. According to the lawsuit, the plaintiff was suing the defendant for damages caused to his land after the defendant’s sick cattle wandered onto the plaintiff’s property. In the ruling, the court decided that the plaintiff was unable to prove that the defendant knew his cattle were sick. The court also reaffirmed that it was up to the land owner to protect their land from outside animals and that the defendant had not properly done so.
“The burden rests upon the land owner to exclude from his land the stock of ordinary animals,” the ruling said. “The owner of the land must fence at his peril against such stock. … A person who builds a fence … that is not sufficient to exclude [ordinary animals] is guilty of negligence and has no cause of action against the owner of such animals for trespassing.”
Since the state allows livestock to roam free, it is up to counties to pass stock laws that require ranchers and livestock owners to fence in their animals.
According to a June 2022 report by the Texas A&M AgriLife Extension regarding fence laws in Texas, there are no clear statistics regarding how many of the state’s 254 counties have passed a stock law. However, a brief filed on the Texas State Law Library website in January 2022 shows both Burleson and Robertson counties as open range. Milam, Madison, Leon and Washington counties have adopted stock laws. Leon County voters adopted the local control statute in 1995.
The introduction of state highways and interstates changed the laws slightly and designated those roadways as “closed range,” meaning that adjacent landowners are obligated to keep their livestock off of them, according to the AgriLife report.
A 1999 Texas Supreme Court ruling, however, clarified that farm-to-market roads were not closed range. In the case Gibbs v. Jackson, the plaintiff was driving along a farm-to-market road in Upshur County when she ran into a horse named Tiny who was standing in the roadway. The car was totaled and the driver sustained injuries as a result.
The court ultimately overturned a lower court ruling and stated that “since the collision in this case did not occur on a highway, but rather occurred on a farm-to-market road in an area that has not adopted a local stock law” the defendant was not liable.
With the urbanization of Bryan-College Station, Potts said it only makes sense that the county should pass this law sooner rather than later.
“The county has grown; [there are] a lot of properties out in the county with all these subdivisions,” he said. “Well half the counties in the state have done this and I thought it was time that Brazos County got up to date.”
Pott said most people he talked to while getting signatures were surprised that such a law had never been passed before in Brazos County.
“[We ran] probably the whole circuit, neighbors and other people we ran into,” he said. “I had some people helping me get them so they came from various sources.”
The stock law proposition is expected to be included in the proposed ballot for the November election, to be approved by commissioners next Tuesday.
0 Comments
'); var s = document.createElement('script'); s.setAttribute('src', 'https://assets.revcontent.com/master/delivery.js'); document.body.appendChild(s); window.removeEventListener('scroll', throttledRevContent); __tnt.log('Load Rev Content'); } } }, 100); window.addEventListener('scroll', throttledRevContent); }
Get Government & Politics updates in your inbox!
Stay up-to-date on the latest in local and national government and political topics with our newsletter.
Kyle McClenagan
News reporter — crime, courts and more
- Author twitter
- Author email
Get email notifications on {{subject}} daily!
{{description}}
Email notifications are only sent once a day, and only if there are new matching items.
Followed notifications
Please log in to use this feature
Log In
Don't have an account? Sign Up Today