Fannin County residents have had an ongoing disagreement about whether the county is closed range or open range. The District Attorney, Richard Glaser, sought an opinion from Texas Attorney General Ken Paxton to answer this question. As Mr. Glaser explained, “In what has recently become an annual Fannin County tradition, this office has been repeatedly asked whether Fannin County i currently an open- or closed-range county.”
According to Mr. Paxton’s opinion, Fannin County is, indeed, a closed range county and livestock owners may not allow their animals to run at large. [Read full opinion here.]
Fence Law Basics
As we have discussed before on this blog and in our Five Strands: a Landowner’s Guide to Fence Law in Texas, the starting point for any fence law analysis is that Texas is an open range state. This means there is no duty on behalf of livestock owners to fence in their livestock or prevent them from roaming free. There are, however, two major exceptions that make closed range–rather than open range–the prevailing rule in Texas. First, a state statute provides that owners of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not “knowingly permit” them from running at large on a US or state highway. This exception does not apply to Farm-to-Market roads. The exception applies statewide, regardless of any local laws related to open/closed range. The second exception involves local stock laws, which allow a county or portion of a county to hold elections to determine whether they wish to change from open to closed range. Many counties enacted this type of local stock law in the early 1900’s. In 1981, the Legislature recodified the Agriculture Code, including the statutory provisions allowing for local stock laws.
Fannin County Background
In 1918, Fannin County conducted two local stock law elections to determine whether it should be a closed range county and prohibit animals from running at large. Specifically, voters passed two separate stock laws. The first prohibited horses, jacks, jennets, and cattle from running at large and the second made the same prohibition for hogs, sheep, and goats.
Questions arose about whether these statutes were still in effect given the recodification of the Agriculture Code in 1981.
Attorney General Opinion
The Attorney General states that the recodification of the Agriculture Code did not act to repeal or invalidate the local stock laws adopted prior to 1981. There was no intention to do so in the recodified laws. Therefore, stock laws passed prior to 1981 remain in effect. Thus, such laws passed by counties remain in effect.
Key Takeaway Points
This opinion offers a good explanation of basic fence law in Texas. It reminds readers that there are two major but separate exceptions to the open range doctrine in Texas–the “US and state highway exception” and the local stock law exemption. It is important to determine the status of the law in your own county with regard to whether it is open or closed range. And, if a county has passed a local stock law, take care to determine whether it applies to the county as a whole or just to a specific portion of the county and pay close attention to the classes of animals to which it applies.
Finally, for a much more comical analysis of this opinion, check out this article by Ken Herman at the American-Statesman.