County battle over loose cattle

Landowners, law enforcement and lawyers hope an opinion from the Texas Attorney General will decide once and for all if loose cattle can be collected by law enforcement in Presidio's “open range.”

(Illustration by Crowcrumbs)

PRESIDIO COUNTY – Landowners, law enforcement and lawyers of Presidio County are hoping an opinion from the Texas Attorney General’s Office will decide once and for all if loose cattle can be collected by law enforcement in an “open range” county like Presidio. County Sheriff Danny Dominguez, who has collected estray cattle for decades, asked State Representative Poncho Nevarez to seek an opinion from the Attorney General’s Office. In the meantime, one landowner is threatening a lawsuit against the county after his cattle were collected by order of Sheriff Dominguez.

For those less familiar with cattle laws, Texas common law since the 1800s has dictated that the state is “open range,” where cattle are free to roam across landowner’s property lines at will. Rather than ranchers having to fence their cattle in, it falls to the responsibility of the neighbor to “fence out” livestock if they do not wish to have wandering cattle on their property.

It wasn’t until stock laws were permitted in Texas that counties were allowed to begin regulating the free movement of cattle by holding countywide elections. However, since 1981, Presidio County has been among 22 counties in Texas that are not allowed to hold that type of election to restrict “at large” cattle. With that, now only legislative action by the state can alter the open range status of Presidio County.

Beginning in the 1980s, Texas passed “estray laws,” which allow Sheriffs to collect stray livestock when they’ve wandered onto a neighbor’s land. This is where the legal confusion lies for Presidio landowners and public officials–are estray laws actually applicable in open range counties?

When Sheriff Dominguez allowed landowner Neil Chavigny to collect cattle that were on his property this year, the county began debating the application of estray laws in Presidio.

Chavigny owns land south of the Chinati hot springs, and has collected cattle off his land three times–most recently in early 2019–and turned them over to the county. He said the cattle eat his grass, and trample a spring he and his wife have restored. Each time, the cattle have eventually been retrieved from the county by their owner, Chon Prieto, who ranches on property that neighbors Chavigny.

Explaining the process, Chavigny said that when cattle appear on his property, he calls his neighbors, attempting to identify their owner, since they are only eartagged and not branded. “When I can’t get someone to pick up those cows after a week or two, I call the Sheriff.”

Sheriff Dominguez then calls around asking nearby landowners if the cattle might be theirs and if they could collect the loose animals. Chavigny said that when the cattle are still not retrieved, Dominguez gives him permission to round up the cattle. He can either do this by hiring cowboys, or doing it himself. On the third cattle roundup, Chavigny took it upon himself.

The cattle are delivered to the county’s estray pens, and the cattle owner, later confirmed to be Prieto, can only retrieve them if he pays for all the costs incurred to round up the cattle. In April, the county reimbursed Chavigny for the third roundup of cattle. Prieto repaid that expense to Presidio County and took back his cattle.

Nowhere in the estray laws of the Texas Agriculture Code does it specifically discuss how they are to be applied in open range counties. County Attorney Rod Ponton didn’t mince words in his opinion on estray cattle in Presidio after the most recent incident with Chavigny and Prieto, declaring, “Seizing cattle under the estray law in Presidio County is illegal and subjects the aggrieved property owner to damages.” Ponton cited Texas Supreme Court decisions from 1893 and 1999 that uphold open range cattle laws, and said that estray laws simply cannot apply here.

After Ponton’s opinion came out, Prieto hired Attorney Albert Valadez who sent a letter to Sheriff Dominguez. In it, Valadez claimed Prieto’s cattle were “illegally impounded” when they were removed from neighboring land owned by Chavigny.

Prieto’s lawyer demanded that all costs Prieto paid the county to regain possession of his cattle be refunded, and that the extra costs Prieto incurred to transport his cattle from the county’s estray pens, and to retain an attorney, be paid for as well. Valadez is asking the county to pay Prieto $3,550.48 within 20 business days of July 1, or face a lawsuit, and cited Attorney Ponton’s opinion that collecting estray cattle in Presidio is illegal.

Sheriff Dominguez responded to Valadez, but did not offer up repayment. Instead, Dominguez stated he sought four other legal opinions after hearing Ponton’s advisement. While Judge Dan Mills, advisor for the Sheriff’s Association of Texas, agreed with Ponton, Attorney James Bradbury and Former Presidio County Attorney John Fowlkes agreed with Dominguez that estray laws broadly apply across Texas, and that the Sheriff has the authority to capture, cost, and return estrays, even in an open range county.

Bobby McKnight, President of the Texas and Southwestern Cattle Raisers Association, is looking forward to the AG opinion, though he thinks the estray laws in Texas are pretty clear. “Landowners have their rights as to their property, and the owners of the cattle have their rights with their cattle as well. The estray law was intended to restore order,” McKnight said. Since the controversy kicked up in Presidio, he’s hopeful the AG decision will provide clarification that applies beyond Presidio, becoming “a template for the state law.”

The Sheriff asked Ponton in April to request a ruling from the Attorney General to settle the issue, and hopefully, waive any legal liability that was being suggested. Ponton confirmed he did not seek an opinion. In June, Dominguez then contacted Rep. Nevarez, who asked the Attorney General for a “definite answer to the legality of this practice.” The Attorney General’s opinion will have implications for Presidio County and the other 21 open range counties in Texas.

Sheriff Dominguez told Valadez in a letter that the Attorney General opinion is anticipated to be received December 11, 2019. “Until the AG opinion has been received, my office will be taking no further action in regards to your letter.” Whether Valadez will pursue a lawsuit on behalf of Prieto despite this remains to be seen.