In a suit challenging the constitutionality of a statute that authorizes the Texas Parks and Wildlife Department to depopulate diseased breeder deer, the 15th Court of Appeals has reversed a trial court’s order denying the Texas Parks and Wildlife Department’s plea to the jurisdiction and granting a temporary injunction suspending the depopulation effort.
Texas Parks and Wildlife Department and John Silovsky, Wildlife Division Director v. RW Trophy Ranch, Ltd. and Robert Williams (No. 15-24-00112-CV; April 10, 2025) arose in February 2021, after the Department first detected Chronic Wasting Disease (CWD)—a highly contagious, neurodegenerative disease—in one of RW’s breeder deer. TPWD has statutory responsibility for “manag[ing]” wildlife for “disease diagnosis or prevention”, sometimes by employing strategies such as depopulation (herd euthanization). TPWD offered RW several herd and research plans that did not involve complete depopulation, but RW refused. A year later, eight more deer died with CWD. Between 2021 and 2023, the number of CWD-positive mortalities spiked from 25% to 95%. During this period, TPWD notified RW that it would euthanize its deer and conduct postmortem testing no later than February 28, 2022. To prevent TPWD from euthanizing what remained of the herd, RW sought a temporary restraining order, asserting due process and takings claims against TPWD, which was granted by a Kaufman County district court. TPWD filed a plea to the jurisdiction, arguing that sovereign immunity barred RW’s due process claim because he lacked vested interest or liberty interest in the deer and the takings claim was unripe. RW then requested an injunction enjoining the depopulation, making additional claims that the Department violated Articles 1, §§ 8, 9, Texas Constitution, that § 43.953, Tex. Parks & Wildlife Code. This earned them a second TRO,
TPWD appealed to the Dallas Court of Appeals, which denied its plea to the jurisdiction and returned the case to Kaufman County where, after Appellees tacked on right to hunt and equal protection claims, another TRO was issued. In the ensuing hearing, RW denied the severity of the CWD outbreak and instead proposed an alternative disease (Epizootic Hemorraghic Disease) as the cause of death. The court once again denied TPWD’s plea and issued the injunction. The Department again unsuccessfully appealed both orders to the Dallas Court, which granted RW’s Rule 23.9 motion to prohibit the Department from depopulating. TPWD sought mandamus and a temporary stay from the Texas Supreme Court. SCOTX conditionally granted it, letting the TPWD conduct the total depopulation of the breeder deer in the facility (5/29/2024).
In an opinion by Justice Brister, the court of appeals sided with TPWD mootness grounds. The court, however, also agreed that the capable-of-repetition exception to the mootness doctrine applied because CWD remains infectious for long periods, and RW denied the severity of the disease and failed to mitigate. Consequently, the same series of events may befall another herd. At the same time, the court held that the lower courts erroneously denied TPWD’s plea because all of Appellees’ claims were barred by sovereign immunity. Regarding RW’s due process claims, the court reasoned that because RW’s property interest in its breeder deer was subordinate to the Legislature’s statutory authority to regulate deer breeding, RW’s interest in the deer was not “vested” and thus could not waive sovereign immunity.
As the court observed, “if a party lacks a vested interest, its due course of law claim is facially invalid and barred by sovereign immunity” (citing Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 17 (Tex. 2015). The court noted further that possessing wild deer, which are property of the state, is illegal in Texas without a Department-issued “Deer Breeder’s Permit” (§§ 63.001, .002, Tex. Parks & Wildlife Code; see also id. § 43.351-.369.). RW’s property interest in their breeder deer was entirely subject to the conditions of the permit, which the Legislature had the authority to amend or to abolish altogether. RW’s property interest could never vest under these circumstances.
RW turned to common law to suggest their property interest in the deer had been vested via legal captivity and dominion (the ‘rule of capture’), which the statute did not impede. Instead, the statute merely imposed conditions on “how and when the deer may be held captive.” RW cited § 43.357, which prescribes how deer breeders may “sell” and “transfer to another person” live breeder deer. However, as the Court pointed out, RW omitted the condition that they may be “purchased” and “received […] only for the purposes of liberation or holding for propagation.” In both cases, the recipient of the live breeder deer still requires a permit. Failing this argument, RW staked its vested property interest claim on the fact that, in the context of theft or bankruptcy suits, its breeder deer would be considered “property.” While true, the court found that RW confused its “possessory interest” in the deer with a “property interest.”
Finally, RW argued that because the deer were in captivity, the statutory definition of “game animals” and its terms of possession were irrelevant to RW’s property rights in the deer. The court rejected this argument as well, pointing out that RW’s cited authority (Wiley v. Baker, 597 S.W.2d 3, 5 (Tex. Civ. App.—Tyler 1980, no writ) involved a conversion claim between two private parties, not a due process-based allegation by a deer breeder. The court sustained the TPWD’s first issue.
RW assayed that the Department acted ultra vires by planning to kill the deer without any pre-depopulation hearings, probable causes, or exigent circumstances. This claim didn’t fly either because TPWD’s depopulation efforts were completely within its authority to “collect, hook, hunt, net, shoot, or snare” deer for “disease diagnosis or prevention” (§ 12.013(a), 1.101(5)), Tex. Parks & Wildlife Code; (Matzen, 659 S.W.3d at 388). Furthermore, this authority expressly applies to deer in captivity pursuant to the permit (Id. §§ 43.366(a)). Looking to Sections 43.953 and 43.954, entitled “Destruction of Deer” and “Notice of Deer Destruction,” the court found no requirement that TPWD conduct a hearing, possess probable cause, or establish exigent circumstances prior to destruction. Although RW replied that TPWD violated its Section 43.953(a)’s pre-depopulation requirement to determine the “threat to the health of other deer or other species, including humans” via an epidemiological assessment, the court reiterated that TPWD had satisfied both standards, adding that parties cannot “second guess” the agency’s determination as RW did by asserting the ‘harmlessness’ of CWD.
RW then claimed that TPWD’s depopulation efforts constituted both Penn Central and “exaction” takings in violation of Article 1, Section 17, Texas Constitution. A Penn Central takings claim arises when a government regulation unreasonably interferes with a landowner’s use and enjoyment of its property. The analysis turns on whether the interference had gone “too far” so as to constitute a taking. The court concluded it did not, noting that because the interference to RW’s land was carried out in compliance with the agency’s disease-prevention mandate, limited in scope and duration to the depopulation of one herd (which allowed RW to continue using its breeder permit, operating their facility, and generating income in the future), and was as large as it was simply because RW rejected TPWD’s early efforts to quell the spread, it was not enough to qualify as a regulatory taking.
RW’s exaction taking claim, which arises when, rather than being denied use of their land, the landowner must perform an action “as a condition to obtaining government approval,” concerned the Department’s “herd plan.” This plan sought to mitigate the spread of CWD among RW’s breeder deer by authorizing the agency’s entry onto RW’s premises exclusively to perform its duties. Moreover, the plan only mentioned expected movement restrictions for infected deer, facility standards, record keeping, and release protocols, none of which limited RW’s land ownership. Since the plan only limited Appellees’ financial interest in breeding deer under conditions that threatened the State’s interest in wildlife management, the court rejected the exaction taking claim.
The court rejected RW’s claim that §43.953 is incompatible with Art. 1, Section 34, Texas Constitution, which considers “[h]unting and fishing” as “preferred methods of managing and controlling wildlife.” The court, however, observed that the constitutional right to hunt is still subject “to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing.” The court next threw out RW’s claim that the agency’s establishment of a restricted access zone on their property while conducting the depopulation violated its free speech rights by preventing RW from videotaping the event. The court reasoned that since the restriction zone had been imposed for Williams’s and others’ safety, and never restricted their free speech prior to the event, TPWD’s execution of § 43.594(b)(2) had at most an “incidental impact” on RW’s free speech. Last but not least, the court rejected RW’s equal-protection claim that TPWD treated deer breeding facilities with low fences differently from those with higher ones. As the court noted, RW failed to address the real reason for the different treatment: RW’s higher rates of CWD. Since sovereign immunity barred all of RW’s claims, the court reversed and dismissed the case.
It’s not hard to see why the 15th Court of Appeals was a good idea. This is precisely the kind of case that should be considered by a statewide court in the interest of consistency and the development of the law. We had also hoped that the 15th Court would relieve some of the burden on SCOTX in this area of the law, and judging by this opinion, that hope has been realized.
TCJL Research Intern Shaan Rao Singh researched and substantially drafted this article.
