Wayne Johnson v. Texas Parks and Wildlife Department ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00085-CV
Wayne Johnson, Appellant
v.
Texas Parks and Wildlife Department, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-14-000025, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
MEMORANDUM OPINION
Wayne Johnson appeals from an interlocutory order denying his request for a
temporary injunction to prevent the Texas Parks and Wildlife Department from carrying out an
inspection to determine whether the deer at Johnson’s deer-breeding facility were marked with
identifying ear tags or tattoos required by statute and Department rules to ensure that captive deer
are legitimate Texas breeder deer that have not been exposed to unmonitored deer (referred to as
“herd reconciliation”). See Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (permitting appeal from
interlocutory order granting or refusing a temporary injunction). The Department has filed a motion
to dismiss the appeal for want of jurisdiction on the ground that the appeal is moot. We will grant
the motion and dismiss the appeal.
In November 2013, the Department informed Johnson by letter that it was denying
his application to renew his deer-breeder’s permit based on a history of noncompliance with deer
breeder regulations and statutes, including failing to comply with reporting and deer-identification
requirements. As a result, Johnson’s deer-breeder’s permit has expired. The Department also
informed Johnson that it intended to enter his facility to inspect his deer and would euthanize any
deer of unknown origin to collect tissue samples for disease testing. In December 2013, the
Department informed Johnson by letter that the Department’s Permit Review Panel had decided to
uphold the Department staff’s denial of his 2013 permit-renewal application.
Johnson filed an application for a temporary restraining order, temporary and
permanent injunctions, and for “de-novo review” of the denial of his permit application. See Tex.
Parks & Wildlife Code § 12.067 (venue to appeal decision of department refusing to issue or renew
permit is Travis County district court and appeal shall be by trial de novo). Johnson alleged that
injunctive relief was required to prevent the irreparable harm that would result from the
Department’s threatened destruction of his herd of genetically unique white-tailed deer as a result
of its herd-reconciliation activities. The district court issued a temporary restraining order enjoining
the Department from euthanizing any of Johnson’s deer and set a hearing on the application for a
temporary injunction for January 30, 2014. During the January 30 hearing, the trial court expressly
clarified that the only injunctive relief Johnson sought related to the threatened destruction of the
deer, and that Johnson had stipulated he was not seeking injunctive relief in the form of a court order
that the Department provide him with a permit. After the hearing, the trial court signed an order
denying Johnson’s application for a temporary injunction. Johnson timely perfected an interlocutory
appeal of that order on February 11.
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On the evening of February 18, the Department conducted its herd-reconciliation
activities at Johnson’s facility, during which it asserts that it discovered 25 deer that lacked the
required identifying tags or tattoos and one dead deer. The 25 deer were euthanized, and their tissue
samples, along with that of the dead deer, were sent to the Texas A & M Veterinary Medical
Diagnostic Laboratory to be tested for chronic wasting disease and bovine tuberculosis. The
laboratory tests did not detect either disease in any of the tissue samples. In an affidavit attached to
the Department’s motion to dismiss Johnson’s interlocutory appeal, the Department’s Big Game
Program Director, Mitch Lockwood, averred that because the laboratory samples detected no disease,
the Department had informed Johnson that it had lifted its movement ban on the remaining deer at
his facility. The Department also informed Johnson, however, that because he no longer possessed
a valid deer-breeder’s permit, he could not continue to confine deer at his facility. Johnson was
informed that he must dispose of the remaining deer at his facility either by releasing them into the
wild or by euthanizing them. The Department informed Johnson that he must dispose of the deer
no later than April 17, 2014, or the Department would be required to do so. See 31 Tex. Admin.
Code § 65.612(a), (c) (2014) (Tex. Parks & Wildlife Dep’t, Disposition of Deer) (upon termination
of deer breeder’s permit, permittee shall dispose of all breeder deer within 30 days or deer shall be
disposed of at discretion of department).
In its motion to dismiss, the Department contends that Johnson’s interlocutory appeal
is moot because the herd-reconciliation actions Johnson sought to enjoin have been completed. The
Department disavows any intent to conduct further testing but simply intends to enforce laws that
prohibit a person from possessing live deer without a deer-management program. See, e.g., id.
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§ 65.602(a) (Tex. Parks & Wildlife Dep’t, Permit Requirement & Permit Privileges; General
Provisions) (‘[N]o person may possess a live deer in this state unless that person possesses a valid
[deer-management] permit issued by the department . . . .”). The Department maintains that because
Johnson stipulated in the trial court that he was not seeking any injunctive relief to secure the
privileges of a deer-breeder’s permit, the order Johnson appeals from does not address that issue and
so cannot be the subject of this interlocutory appeal. We agree. The relief Johnson sought in the
trial court was solely to restrain the Department from conducting its herd-reconciliation activities.
Those activities have since been completed. This appeal does not involve the Department’s denial
of Johnson’s application for a deer-breeder’s permit, the lack of which is the basis for any future
Department action with respect to any deer remaining in Johnson’s possession after April 17, 2014.
Because the herd-reconciliation activities Johnson sought to enjoin have already occurred, the
subject matter of the application for temporary injunction from which Johnson appeals is moot.
See, e.g., Zuniga v. U.S. Investors, Inc., 453 S.W.2d 811, 811 (Tex. 1970) (appeal from trial court’s
refusal to enjoin construction of nursing home moot because nursing home construction completed).
Moreover, Johnson can avoid further Department action by releasing his deer into the wild by the
April 17 deadline.
Because the dispute that gave rise to this appeal is no longer a live controversy, the
appeal is moot. Accordingly, we grant the Department’s motion and dismiss the appeal for lack of
subject-matter jurisdiction.
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_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Dismissed for Want of Jurisdiction
Filed: April 8, 2014
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