Are Deer Private Property?


That may sound like a joke, but it’s not a laughing matter to people on both sides of the issue. The 3rd Court of Appeals in Austin decided in late June an appeal filed by two deer breeders claiming that breeder deer are, or became, private property and asking to invalidate Texas Parks and Wildlife Department (TPWD) rules requiring breeders to test for chronic wasting disease (CWD). The Department had responded that breeder deer are wild animals and therefore “property of the people of this state”. Testing is necessary to prevent severe damage to the Texas deer herd. The court’s decision affirmed the District Court’s decision in favor of the defendants — TPWD and three of its officials. The suit was filed a few years ago, but this situation has been smoldering for years. CWD was first discovered in Colorado in 1967. Around 2002, Wisconsin wildlife authorities confirmed that CWD had been found in deer. Records showed that Wisconsin deer had been received by Texas breeders. That could be how CWD got here. CWD is fatal to deer. Once contracted, there is no known remedy. There is also no approved live test for it although other tests are being evaluated. It is considered to be transmitted by mouth from deer-to-deer. Even saliva in the soil is believed to carry it. Furthermore, CWD is similar to a livestock disease that has been confirmed in Europe to affect humans. But understand that there has NOT been a confirmed case of CWD in humans – not from eating venison from CWD-infected deer or kissing one on the mouth. Experts have cautioned, though, that there is no scientific proof that it can’t happen. At least it HASN’T. But CWD is serious business and could become a threat to Texas’ four million white-tailed deer and the $2.2 billion Texas deer hunting industry. Emergency rules promulgated by the TPW Commission in 2002 prohibited further importation of deer.

That legally closed our borders to out of state deer coming into Texas.
Or, it at least stopped law-abiding breeders from bringing deer into Texas. Some violated the closure rules and were discovered and prosecuted. One breeder in east Texas pled guilty to federal and state charges and was given probation, six months house arrest and $1.5 million in fines and restitution. Most of his penned deer were executed as a safety precaution. He was known to have imported many out of state deer, leading to both state and federal investigations. In the recent case, the Third Court of Appeals in Austin delivered a comprehensive 34-page opinion that
stated, “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.”

It also confirmed the trial court’s judgment awarding court costs and attorney’s fees of $362,967.50 against the two plaintiffs and an additional $62,895 against one individually. The appellate court’s decision could be appealed. However, the old admonition against throwing good money after bad could be considered.

An appellate court has affirmed a trial court’s decision that deer are wild animals belonging to the people of the state and that a breeder permit issued by Texas Parks and Wildlife Department does not convey private ownership of the animals. Photo by John Jefferson.

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Date Published: October 15, 2019

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