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At a Glance:
Title:
Bailey v. Smith
Date:
June 28, 2019
Citation:
581 S.W.3d 374
Status:
Published Opinion

Bailey v. Smith

Court of Appeals of Texas, Austin.

Ken BAILEY and Bradley Peterson, Appellants

v.

Carter SMITH, Executive Director; Clayton Wolf, Wildlife Division Director; Mitch Lockwood, Big Game Program Director; and Texas Parks & Wildlife Department, Appellees

NO. 03-17-00703-CV

|

Filed: June 28, 2019

*381 FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT, NO. D-1-GN-15-004391, HONORABLE TIM SULAK, JUDGE PRESIDING

Attorneys & Firms

Mr. Jason R. LaFond, Office of the Attorney General of Texas, P. O. Box 12548 (MC 059), Austin, TX 78711-2548, for Appellees.

Ms. Jennifer S. Riggs, Riggs & Ray, P.C., 506 W. 14 St., Suite A, Austin, TX 78701, for Appellants.

Before Justices Smith

OPINION

Edward Smith, Justice

*382 This is a dispute between commercial deer breeders and the Texas Parks and Wildlife Department (the Department) over the ownership of captive-bred whitetail deer. Ken Bailey and Bradley Peterson each hold a deer breeder’s permit issued by the Department authorizing them “to possess live breeder deer in captivity” and to “engage in the business of breeding breeder deer.” See chronic wasting disease. The Department responded that breeder deer are wild animals and therefore “property of the people of this state.” See id. § 1.011(a). The district court granted the Department’s partial plea to the jurisdiction and motion for summary judgment, denied Peterson’s cross-motion, and awarded the Department its attorneys’ fees. For the reasons that follow, we will affirm.

LEGAL AND FACTUAL BACKGROUND

The Department is broadly responsible for administering the laws related to wildlife and “for protecting the state’s fish and wildlife resources.” See id. §§ 12.001(a), .0011(a). In addition to granting the Department broad enforcement powers to carry out this task, see id. §§ 12.102–.105, the Legislature has authorized the Department to grant certain licenses and permits to assist with managing the state’s resources. See generally id. §§ 43.021–.955 (“Special Licenses and Permits”). Subchapter L concerns the deer breeder’s permit, which authorizes a person to “possess live breeder deer in captivity.” Id. § 43.352(a); see generally id. §§ 43.351–.369 (“Deer Breeder’s Permit”). Specifically, the permit authorizes a person to “engage in the business of breeding breeder deer in the immediate locality for which the permit was issued” and to “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale.” Id. § 43.357(a)(1)–(2). These rights are subject to the Department’s authority to adopt rules concerning “the possession of breeder deer” and the “procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer,” among other subjects. See id. § 43.357(b)(1), (5). Furthermore, moving breeder deer into or out of a facility requires a separate transfer permit issued by the Department.1 Id. § 43.362(b) (providing, with exceptions not relevant here, that “no person may purchase, obtain, sell, transfer, or accept in this state a live *383 breeder deer unless the person obtains a transfer permit”). “Only breeder deer that are in a healthy condition may be ... transferred.” Id. § 43.362(a).

One of the more serious health threats to deer is 31 Tex. Admin. Code § 65.604 (2018) (Tex. Parks and Wild. Dep’t, Disease Monitoring).2 Rule 65.604 prohibits any person from removing deer from a breeder facility that is not “movement qualified” or introducing deer from an unqualified facility without express permission from the Department. See id. § 65.604(a)–(c). A facility “is movement qualified if no CWD test results of ‘detected’ have been returned from an accredited test facility for breeder deer submitted from the facility” and one of three criteria is satisfied:

(1) the facility is certified by the Texas Animal Health Commission (TAHC) as having a CWD Monitored Herd Status of Level A or higher;

(2) less than five eligible breeder deer mortalities have occurred within the facility as of May 23, 2006; or

(3) CWD test results of ‘not detected’ have been returned from an accredited test facility on a minimum of 20% of all eligible breeder deer mortalities occurring within the facility as May 23, 2006.

Id. § 65.604(d). A movement-qualified facility loses that status if it does not meet the requirements of Subsection (d) “by March 31 of any year.” Id. § 65.604(f).

On June 30, 2015, the Department confirmed the first positive test for CWD in Texas captive deer. Subsequent testing found several other infected deer in the same facility. Soon afterwards, the Department’s executive director, Carter Smith, promulgated emergency rules significantly increasing the testing necessary to acquire movement-qualified status. See 40 Tex. Reg. 5549, 5566–5570 (2015) (emerg. rule Tex. Parks & Wild. Code § 12.027. The order also states the Department is authorized to regulate whitetail deer in captivity as “game animals.”

Bailey and Peterson sued the Department seeking declaratory relief invalidating the emergency rules or, in the alternative, *384 certain provisions of the Parks and Wildlife Code. First, they sought a declaration under the Uniform Declaratory Judgment Act (UDJA) that captive-bred deer are private property rather than wild animals. See Tex. Civ. Prac. & Rem. Code § 37.009 (“In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.”).

The Department filed an answer and a plea to the jurisdiction asserting sovereign immunity. In its answer, the Department prayed for an award of attorney’s fees for defending against the UDJA claims. The Department subsequently adopted permanent rules with essentially the same movement restrictions and heightened testing requirements as the emergency rules. See 41 Tex. Reg. 5631, 5726–41. Peterson and Bailey amended their pleadings to challenge the permanent rules (CWD Rules). Bailey then nonsuited his claims.

After various proceedings that do not concern us here, the Department, Smith, Lockwood, and Wolf filed an amended plea to the jurisdiction and motion for summary judgment. The Department asserted the court lacked jurisdiction to decide Peterson’s claim for an ownership declaration and that it was entitled to summary judgment on his other two claims because Peterson did not possess an ownership interest in his breeder deer. Peterson filed a cross-motion for summary judgment.

The district court heard arguments, reviewed evidence submitted by the parties, and signed an order providing:

IT IS ORDERED that [the Department]’s Partial Plea to the Jurisdiction that the Court lacks jurisdiction over Plaintiffs request for a declaration of deer ownership is GRANTED.

IT IS ORDERED that [the Department]’s Partial Plea to the Jurisdiction that the Court lacks jurisdiction over the State Officials with respect to Plaintiffs statutory and constitutional challenges to the rules and the constitutional challenges to the statutes is GRANTED.

....

In addition to and as an alternative, if necessary, to the Court’s rulings on [the Department’s] Partial Pleas to the Jurisdiction, the Court ORDERS that [the Department’s] Motion for Summary Judgment is GRANTED and that Plaintiff’s *385 Motion for Summary Judgment is DENIED.”

The Court further ORDERS that [the Department]’s Motion for Attorney’s Fees is GRANTED. The Court finds and concludes that [the Department]’s defenses of Plaintiffs claims are so inextricably intertwined that segregation of Defendant’s attorney’s fees is not required. Therefore, the Court ORDERS that [the Department] recover attorney’s fees in the amount of $425,862.50 ($362,967.50 from Plaintiffs Bailey and Peterson jointly and severally, plus $62,895.00 from Plaintiff Peterson, individually). The Court further ORDERS that [Peterson’s] Motion for Attorney’s Fees is DENIED.

This appeal followed. Peterson appeals the district court’s rulings on the plea to the jurisdiction and cross-motions for summary judgment. Bailey and Peterson jointly challenge the fee award.

JURISDICTION

We first address whether the district court correctly concluded that sovereign immunity barred it from deciding Peterson’s claim for a declaration of ownership and his ultra vires claims against Smith, Lockwood, and Wolf.

Standard of Review and Applicable Law

A plea to the jurisdiction challenges a court’s authority over the subject matter of a claim. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

Sovereign immunity prohibits “suits against the state unless the state consents and waives its immunity.” Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

Courts address the applicability of immunity through a two-step process. “The judiciary determines the applicability of immunity in the first instance and delineates its boundaries. If immunity is applicable, then the judiciary defers to the legislature to waive such immunity.” Tex. Gov’t Code § 311.034).

*386 Analysis

Peterson initially asserts the Department’s immunity does not apply because it requested attorney’s fees. The Texas Supreme Court has held that when a governmental entity “asserts affirmative claims for monetary recovery,” immunity does not apply to counterclaims for monetary relief that are “germane to, connected with, and properly defensive to those asserted by the governmental entity.” id.

Having concluded the Department’s immunity applies, we now turn to whether Peterson pled a waiver of it for his ownership declaration and his ultra vires claims. The UDJA provides that “[a] person whose rights, status, or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.” Sefzik, 355 S.W.3d at 621.

Peterson contends that the district court necessarily possessed jurisdiction to render his ownership declaration because his remaining claims turn on that very issue. We agree that Peterson’s ownership interest in his breeder deer is relevant to those claims and decide that issue below, but that overlap does not mean the district court necessarily possessed jurisdiction over this claim. See Ex parte Springsteen, 506 S.W.3d 789, 799 (Tex. App.—Austin 2016, pet. denied))).

Peterson also asserted claims against Smith, Lockwood, and Wolf in their official capacities.6 Sovereign immunity from suit generally extends to state officials acting in their official capacities because “a suit against a government official acting in an official capacity is ‘merely another way of pleading an action against the entity of which the official is an agent.’ ” Heinrich, 284 S.W.3d at 372).

Peterson alleged that Smith, Lockwood, and Wolf acted ultra vires because the CWD Rules do not require the Department to inspect breeder deer for disease before denying a transfer permit, a requirement Peterson finds in Hall, 508 S.W.3d at 240 (concluding chancellor of University of Texas not proper party to ultra vires suit challenging rules adopted by board of regents).

We have concluded that the district court lacked jurisdiction over Peterson’s requested ownership declaration and that Smith, Lockwood, and Wolf are not proper parties to Peterson’s ultra vires claims. Because these pleading defects affirmatively negate the existence of jurisdiction, Peterson is not entitled to an opportunity to amend. See Miranda, 133 S.W.3d at 227.

SUMMARY JUDGMENT

We next consider whether the district court erred by granting the Department’s motion for summary judgment on Peterson’s due process claims and denying Peterson’s cross-motion.7

Standard of Review

We review a court’s ruling on a motion for summary judgment de novo. Id.

Resolving Peterson’s issues will require us to construe the Parks and *389 Wildlife Code. Statutory construction presents a question of law that we review de novo. (5).

Procedural Due Process

The Texas Constitution provides that no person “shall be deprived of life, liberty, property, privileges or immunities ... except by the due course of the law of the land.” Than, 901 S.W.2d at 929).

“Property interests ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009, 1014 (1937)).

The Texas Supreme Court has described “the right to own private property as ‘fundamental, natural, inherent, inalienable, not derived from the legislature and as preexisting even constitutions.’ ” United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945)).

Historically, whether property rights could arise in an animal depended on the animal’s common law classification. “The common law divides animals into two groups: animals domitae naturae or mansuetae naturae—that is, tame or tamed, domestic animals—and animals ferae naturae—that is, wild, usually found at liberty.” Id. at 529, 16 S.Ct. 600. In this conception:

The wild game within a state belongs to the people in their collective sovereign capacity. It is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or traffic and commerce in it, if it is deemed necessary for the protection or preservation of the public good.

Tex. Parks & Wild. Code § 1.011(a).

Peterson argues that we should not interpret PPL Mont., LLC v. Montana, 565 U.S. 576, 603–04, 132 S.Ct. 1215, 182 L.Ed.2d 77 (2012) (remarking “the public trust doctrine remains a matter of state law” and is not defined by the Constitution).

Under the public trust doctrine an animal must be “legally removed” from the wild before property rights can arise in *392 it.10 See Tex. Parks & Wild. Code § 43.061(a); see also id. § 63.001(a) (defining whitetail deer as game animals). Another statute more generally provides that “[n]o person may possess a live game animal in this state for any purpose not authorized by this code.” Id. § 63.002. In addition, restriction of the movements of animals by fences (i.e., removing them from their “natural liberty”) does not affect their status as “property of the people of this state.” Id. § 1.013. Read together, these provisions prohibit a person from removing whitetail deer from the wild and holding them in captivity without a permit from the Department.

Peterson maintains that his breeder’s permit either allows for ownership rights to arise in breeder deer according to the common law or actually conveys ownership of breeder deer.11 While a breeder’s permit authorizes a person “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale,” id. § 43.357(a), the permit statute expressly defines “breeder deer” as white-tailed or mule deer “legally held under a permit authorized by this subchapter,” id. § 43.351(1) (emphasis added). Nothing in subchapter L makes breeder deer property of the deer breeder. See generally id. §§ 43.351–.369. Peterson nevertheless maintains that Sections 43.364 and .366 allow for property rights to arise in breeder deer according to common law principles. Section 43.364 states:

Breeder deer may be purchased, sold, transferred, or received in this state only for the purposes of liberation or *393 holding for propagation. All breeder deer and increase from breeder deer are under the full force of the laws of this state pertaining to deer, and those breeder deer may be held in captivity for propagation in this state only after a deer breeder’s permit is issued by the department under this subchapter.

Id. § 43.364. Peterson contends that “the laws of this state” include the common law rule. We agree that the laws of this state include the common law, but we must construe the statutory language in context. See id. §§ 43.364, .366.

Moreover, allowing private property rights to arise in breeder deer is incompatible with the Legislature’s direction that breeder deer are “held under a permit.” See id. § 43.351(1). The Legislature has specifically provided that a breeder’s permit is valid for only a set amount of time, see id. Eggemeyer, 554 S.W.2d at 140). The statutory scheme simply leaves no room for common law property rights to arise in breeder deer.

Construing all these provisions together against the backdrop of In re Wheeler, 431 B.R. 158, 160 (Bankr. N.D. Tex. 2005) (construing Texas law and holding that debtor, a deer breeder, “does not have title to the deer. The deer are considered wild animals, and are property of the people of the State of Texas.”).

That breeder deer are not common law property does not mean that breeder deer have no legal status or protection under the law. Our holding does not affect the rights conferred by a deer breeder’s permit or whether those rights are enforceable against third persons. See, e.g., Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)). Subchapter L is clear that deer breeders have no vested property interest in their breeder deer, and we must enforce the statute as written.

Our conclusion does not address whether a breeder has a vested right in a breeder’s permit. See FKM P’ship, Ltd. v. Board of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632 (Tex. 2008) (filing amended petition omitting claim “effectively nonsuits or voluntarily dismisses the omitted claims as of the time the pleading is filed”). Because Peterson elected not to go forward on that claim in the district court, we decline to address it here.16

ATTORNEY’S FEES

Peterson and Bailey challenge the district court’s award of $425,862.50 in attorney’s fees in their remaining issues. “In any proceeding under [the UDJA], the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Save Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 891 (Tex. App.—Austin 2010, pet. denied).

Jurisdiction to Award Fees

Peterson initially challenges whether the district court had jurisdiction to award fees if it lacked jurisdiction to decide the merits of one of Peterson’s claims. This Court has held that courts possess authority to awards fees in that circumstance because the UDJA authorizes courts to award fees “[i]n any proceeding under the UDJA.” Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-CV, 2011 WL 6118573, at *8 (Tex. App.—Austin Dec. 8, 2011, pet. denied) (mem. op.) (“The trial court’s conclusion that it lacked jurisdiction to render the requested declarations did not change the nature of the proceeding.”).

Jurisdiction over Bailey

Next, Bailey argues the district court lost jurisdiction over him following his nonsuit. A plaintiff has an absolute right to take a nonsuit at any time before introducing all of his evidence other than rebuttal evidence. Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008) (“[A] plaintiff’s nonsuit cannot extinguish a defendant’s counterclaim for costs and attorney’s fees.”).

Segregation

Bailey and Peterson next challenge the district court’s refusal to require the Department to segregate its fees. Texas follows the American Rule for attorney’s fees, which provides that “a party may not recover attorney’s fees unless authorized by statute or contract.” Home Comfortable Supplies, Inc. v. Cooper, 544 S.W.3d 899, 911 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

Peterson and Bailey asserted claims under the UDJA and the APA. Unlike the UDJA, the APA does not authorize a court to award attorney’s fees. See Chapa, 212 S.W.3d at 313–14.

Reasonable and Necessary

We now turn to whether the fee award was reasonable and necessary. Whether fees are reasonable and necessary is an issue of fact. In re National Lloyds Ins. Co., 532 S.W.3d 794, 809 (Tex. 2017) (orig. proceeding) (“When fee-shifting is authorized, the party seeking to recover those fees bears the burden of establishing the fees are reasonable and necessary.”).

To support its fee claim the Department submitted a sworn affidavit executed by Philip Ledbetter, an assistant attorney general experienced in natural resource litigation. Ledbetter employed the lodestar method, which involves multiplying the reasonable hours worked by a reasonable hourly rate. See Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 578 S.W.3d 469, 498, 2019 WL 1873428, at *20 (Tex. Apr. 26, 2019). Ledbetter explained in his affidavit that he arrived at a reasonable hourly rate for each of the assistant attorneys general assigned to the case by reviewing the average hourly billing rates published in the Texas Lawyer for lawyers practicing in Travis County in relevant practice areas, reviewing the billing records kept by each attorney general working on the case, and consulting with each of them regarding the specific services they performed. Based on this review, Ledbetter individually determined each attorney’s reasonable hourly rate and the reasonable hours worked on the case and arrived at a reasonable fee. The Department claimed a total of $1,219,975 in fees but suggested an alternate sum of $425,862.50. The alternate sum represented fees the Department incurred responding to Bailey and Peterson’s discovery requests and $62,895 for legal services incurred after Bailey’s nonsuit. The district court accepted the alternative suggestion and made Bailey and Peterson jointly and severally liable for $362,967.50 and Peterson individually liable for $62,895.

Peterson and Bailey argue generally that the Department’s records are insufficient for the district court to determine *398 whether the assistant attorneys general assigned to the case duplicated each other’s work. See State Farm Lloyds v. Hanson, 500 S.W.3d 84, 99 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (upholding fee award based on time records divided into similar categories).

The Department’s request for fees incurred responding to Bailey and Peterson’s discovery requests included the fees of contract attorneys the Department hired to review “over 2.75 million documents.” Peterson and Bailey contend Ledbetter had insufficient information to determine the contract attorneys’ fees were reasonable. Ledbetter submitted with his affidavit time sheets reflecting the name of the contract attorney, the number of hours worked, the date of the work, and that the project was titled “Parks and Wildlife Review.” Each time sheet was sent with an invoice (also attached to Ledbetter’s affidavit) to Mary Smith, one of the assistant attorneys general assigned to this case, and that billed each contract attorney’s time at $30 per hour. We conclude this is sufficient evidence for the district court to make a meaningful evaluation of the reasonableness of the contract attorneys’ fees. See Venture, 578 S.W.3d at 497–98, 2019 WL 1873428, at *20.

Equitable and Just

A fee award under the UDJA also must be equitable and just. See Ridge Oil Co., v. Guinn Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004).

Peterson and Bailey argue the award was not equitable or just because the assistant attorneys general representing the Department supposedly failed to keep sufficiently detailed time records to segregate their fees, the Department’s original fee request was excessive, and bringing this lawsuit likely forced the Department to withdraw the emergency rules and replace them with the more reasonable (but still objectionable) permanent CWD Rules. They further argue ordering private citizens to reimburse the Department is unjust given that the Department has substantially more resources available to it. The Department responds awarding some measures of fees was equitable and just in light of Peterson and Bailey’s numerous *399 claims, some of which were novel, the millions of documents reviewed in response to their discovery requests, and the consequences to the deer breeding industry if Peterson and Bailey were successful.

Contrary to the assertions made by Peterson and Bailey, the assistant attorneys general working on the case kept sufficiently detailed records to enable Ledbetter to determine individually what portion of the hours each worked on the case was recoverable and to calculate their fees accordingly. Moreover, it is undisputed that Peterson and Bailey raised novel claims and that their discovery requests required the Department to review an unusually large number of documents. Finally, the reasonableness of the Department’s original fee request is not before us because the district court awarded less than half of that sum. Even if the district court could have concluded awarding no fees would be equitable and just under these circumstances, it was not compelled to reach that conclusion here. See Save Our Springs All., Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Board of Directors, 198 S.W.3d 300, 318–19 (Tex. App.—Texarkana 2006, pet. denied))). We conclude the district court did not abuse its discretion by making an inequitable or unjust award.

Peterson’s Fee Motion

As a final matter, Peterson argues the district court abused its discretion by denying his motion for attorney’s fees. A court has discretion to award fees to the non-prevailing party. Ochoa v. Craig, 262 S.W.3d 29, 33 (Tex. App.—Dallas 2008, pet. denied) (holding no abuse of discretion in denying Ochoa’s fee request because she “did not prevail on her declaratory judgment claim”).

We overrule Bailey and Peterson’s remaining issues.

CONCLUSION

We affirm the district court’s order.

Concurring and Dissenting Opinion by Justice Goodwin

CONCURRING AND DISSENTING OPINION

Melissa Goodwin, Justice

On this record, I agree with the Court’s conclusion that the trial court properly dismissed for lack of jurisdiction Peterson’s declaratory judgment and ultra vires claims. I disagree, however, with the Court’s conclusion that the trial court correctly granted summary judgment on Peterson’s due process claims concerning the Texas Parks and Wildlife Code (the Code) and the Department’s rules, see State v. Bartee, 894 S.W.2d 34, 41–42 (Tex. App.—San Antonio 1994, no pet.) (describing legal tradition and collecting case authorities). Because the Code does not take away this common law property right, I respectfully dissent.1

The Texas Supreme Court has long noted that the preservation of property rights is “one of the most important purposes”—in fact, “[t]he great and chief end”—of government. Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”). But the decision issued today fails to preserve and protect the fundamental property rights of the deer breeders in their captive-bred white-tailed deer.

I recognize that chronic wasting disease (CWD) poses a significant threat to the deer population and for the people of this state. As shown by both the Department’s brief and the amicus brief of various wildlife and hunting associations,2 CWD has potential negative impacts for Texas wildlife, for the rich Texas tradition of hunting deer, and for the properties, businesses, and Texas fisc that derive value and revenue from licensing, leasing hunting rights, and supporting the hunting industry. However, measures to address that threat, while worthy, must be consistent with the rule of law. The legislature, as a representative body of the people, has the power to pass laws further restricting the captivity of breeder deer, implementing stricter regulations for deer breeder permits, and creating additional protections against CWD, insofar as they are consistent with our Constitution. And the Department may act within its delegated scope of authority as granted by the legislature. But I cannot agree that the threat of CWD justifies the deprivation of fundamental private property rights without due process contrary to our Constitution and the rule of law.

Because Peterson has a constitutionally protected property interest in his breeder deer, I continue where the Court left off and proceed to the merits of the district court’s summary judgment order on Peterson’s procedural due process claims. Both parties moved for summary judgment, but neither party met its burden to establish that it was entitled to summary judgment as a matter of law. I would therefore affirm the trial court’s denial of Peterson’s motion for summary judgment, but reverse the grant of the Department’s summary judgment motion. Finally, the Court also affirmed the district court’s $425,862.50 attorney’s *401 fee award against Peterson and the deer breeder Ken Bailey, who originally brought suit with Peterson but later nonsuited his claims. But because the attorney’s fee award was based on, at least in part, the Department’s summary judgment success, I would reverse and remand the attorney’s fee award.

I. STANDARD OF REVIEW AND LAW ON DUE PROCESS

We review a trial court’s summary judgment de novo. Provident Life, 128 S.W.3d at 216.

Here, the summary judgment order granted the Department’s motion and denied Peterson’s motion, which centered upon Peterson’s procedural due process claims against the Department. Due process rights are provided by both the United States Constitution and the Texas Constitution. See Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015)).

II. DISCUSSION

In a due process claim, we apply a two-part analysis: (1) we determine whether Peterson has a property interest that is entitled to procedural due process protection; and (2) if so, we determine what process is due. See id.

A. Does Peterson have a property interest in his breeder deer?

“Property interests ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....’ ” Roth, 408 U.S. at 577, 92 S.Ct. 2701).

In Texas, “[a]ll wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state.”3 Hollywood Park Humane Soc’y v. Town of Hollywood Park, 261 S.W.3d 135, 140 (Tex. App.—San Antonio 2008, no pet.).

Under Texas common law, however, “property rights in wild animals can arise when an animal is legally removed from its ‘natural liberty’ and subjected to ‘man’s dominion.’ ”4 Hollywood Park Humane Soc’y v. Town of Hollywood Park, No. Civ.A.SA03CA1312-XR, 2004 WL 390807, at *5 (W.D. Tex. Jan. 23, 2004) (“However, it is legally possible for an individual to have qualified property rights in a wild animal.... These property rights are often referred to as qualified, however, because they are lost if the animal regains its liberty.” (applying Texas common law)).

The Court nevertheless determines that the Code does not “allow[ ] common law property rights to arise in breeder deer.” Ante at 393. For this proposition, the Court relies primarily on two statutory provisions. First, the legislature has mandated that “[n]o person may capture, transport, or transplant any game animal or game bird from the wild in this state unless that person has obtained a permit to trap, transport, and transplant from the department.” Tex. Parks & Wild. Code § 1.101(4)). As explained below, however, the statutory provisions the Court relies on do not prevent a deer breeder who holds a permit from acquiring ownership of breeder deer through legal captivity under the common law, and the Department is incorrect that the common law rule of ownership is now “obsolete” because “the Code defines ‘wild’ in terms of a species’[s] characteristics, not an individual animal’s freedom.”

1. The Court’s analysis

As already noted, the common law rule is that an individual acquires ownership and property rights in a wild animal when it is “removed from its ‘natural liberty’ ”—i.e., through legal capture or some other legal means—“and subjected to ‘man’s dominion.’ ” Tex. Parks & Wild. Code § 43.364.

The Court, however, argues that the Code “is clear that deer breeders have no vested property interest in their breeder deer” and does not allow “common law property rights to arise in breeder deer.” Ante at 393. I disagree because the Code does not “clearly” express legislative intent to abrogate the common law principle providing property rights to deer breeders who legally remove breeder deer from their natural liberty and subject them to man’s dominion, as I explain more fully below. See *404 Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969))).

Moreover, the Court’s analysis does not take into account the temporal nature of legislative enactments when it “constru[es] all the[ ] provisions together against the backdrop of [s]ection 1.011 and the common law” to conclude that “breeder deer are public property” and “deer breeders do not acquire common law property rights in them.” See ante at 393 (citing id. § 1.013, or if it was only with the culminating 1997 enactment regarding fences that the common law was abrogated construed in light of the earlier statutory prohibitions on possession.6 See ante at 392. If the former, then the 1997 enactment as to the fences would play no part in the analysis of whether the legislature abrogated the common law with the earlier enacted statutes. If the latter, then it is the 1997 enactment that must clearly demonstrate the legislature’s intent to abrogate *405 the common law. But, as I explain below, no statutory provision in the Code reflects the legislature’s intent to abrogate the common law as to the private ownership of breeder deer and thus at no specific time did the legislature effectuate such an intent through a legislative enactment.

The Code expressly provides that “the holder of a valid deer breeder’s permit” may (1) “engage in the business of breeding deer in the immediate locality for which the permit was issued;” and (2) “sell, transfer to another person, or hold in captivity live breeder deer for the purpose of propagation or sale.” Bartee, 894 S.W.2d at 47–48 (Rickhoff, J., concurring) (noting that “the state has not defined wild animals so as to absolutely exclude from ownership all white-tailed deer within the boundaries of the state” and that analogously “[j]ust because the state heavily regulates personalty such as handguns or automobiles, it does not follow that individuals may not own them”).7

Moreover, although section 1.013 addresses whether fences affect the property status of wild animals, the provision does not speak to whether “captivity” affects the property status:

This code does not prohibit or restrict the owner or occupant of land from constructing or maintaining a fence of any height on the land owned or occupied, and an owner or occupant who constructs such a fence is not liable for the restriction of the movement of wild animals by the fence. The existence of a fence does not affect the status of wild animals as property of the people of this state.

*406 Allen v. Pennsylvania Soc’y for Prevention of Cruelty to Animals, 488 F. Supp. 2d 450, 466 (M.D. Pa. 2007) (recognizing that when animal “property was contraband” there could be “no legitimate property interest in the animals”).

Thus, for example, section 1.103 would prevent a person lacking a permit from acquiring ownership in deer contained within high fences because the existence of a fence would not change the property status of the deer and any captivity or possession of the deer would be illegal. See Hollywood Park, 261 S.W.3d at 140.

Accordingly, section 1.013—or, for that matter, the Code—is not inconsistent with acquiring property interests in captive-bred white-tailed deer under the common law. The provisions relied on by the Court do not represent “clear legislative intent” to deprive deer breeders of their rights under common law to acquire property rights in their breeder deer. See Tex. Parks & Wild. Code §§ 43.351(3), .360. Because it is undisputed that Peterson legally held the breeder deer under permit and in captivity, I conclude that Peterson acquired a constitutionally protected property interest in the breeder deer and therefore respectfully dissent from the Court’s contrary conclusion.8

2. The Department’s analysis

The Department, on the other hand, relies on the legislature’s 1991 enactment that statutorily defines “wild” to mean “a species, including each individual of a species, that normally lives in a state of nature and is not ordinarily domesticated.” Id. § 1.101(4). The Department claims that deer breeders holding permits are bailees, and the people of the state, acting through the Department, are the bailors. Deer breeders, as bailees, “have only a possessory right that they may assert against third parties who steal from them,” “[t]hey do not have ownership or any rights superior to the State.” The Department does not dispute that Texas common law and the statutory framework permitted private ownership through legal captivity and dominion of wild animals before 1991 because “the Legislature had not yet ... defined ‘wild’ in terms of species.” But the Department argues that with the 1991 statutory enactment of the definition of “wild” the state acquired absolute ownership of all wildlife, thereby making the common law rule “obsolete.”

I agree with the Department that the common law provided for private ownership through legal captivity and dominion before 1991. But I disagree that the common *408 law rule became “obsolete” in 1991. If private ownership is per se prohibited because “wild” is defined in terms of “species” and wild animals are therefore owned by the state regardless of confinement, then the later 1997 statutory enactment declaring that fences do not affect wild animals’ status as property of the people of this state would be redundant and mere surplusage. See Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999) (recognizing “the doctrine of expressio unius est exclusio alterius, the maxim that the expression of one implies the exclusion of others”).

Moreover, statutory provisions in the Texas Health and Safety Code expressly contemplate the ownership of wild animals by entities other than the state, which is contrary to the Department’s theory that the state has absolute ownership in wild animals.9 For example, section 822.103, enacted in 2001, contemplates that a person may “own ... a dangerous wild animal” if “the person holds a certificate of registration for that animal issued by an animal registration agency.”10 Tex. Health & Safety Code § 822.102(a)(6), (8), (10), (11) (exempting these entities from subchapter E’s requirements); see also id. §§ 822.107–13 (imposing requirements, restrictions, *409 and liabilities on “[a]n owner of a dangerous wild animal”).11

At issue here, then, is what it means for wild animals—as defined in terms of species’s characteristics—to be “the property of the people of this state,” see Bartee states:

With regard to the ownership of wild animals, we do not find that the various statutes enacted over the years have departed from the common law. The statutory phrase ‘property of the people of this state’ does not appear to have been interpreted by our courts. Despite its use in various statutes over the years, our courts have consistently referred to the ownership of wild animals as being in ‘the state’ or belonging to ‘the state.’

Dobie—qualifies its interpretation of public ownership as follows:

The ownership of wild game, so far as it is capable of ownership, is in the state for the benefit of all its people in common, and it is within the police power of the state Legislature, subject to constitutional restrictions, to make such general or special laws as may be reasonably necessary for the protection of public rights in such game, and within such power is the right to regulate the method of taking or hunting game in the state.

Dobie effectively questions whether wild game is even “capable of ownership” and therefore does not stand for the proposition that wild game is owned by the state as the term “owned” is traditionally conceived.

Moreover, 3B C.J.S. Animals § 9 (2019) (“The State’s ownership of wild animals is in its sovereign, as distinguished from its proprietary, capacity, and it may regulate the taking and reduction to possession of wild animals.”). Thus, we must inquire into what it means for a sovereign in its sovereign capacity to “own” wild animals, insofar as wild animals are capable of ownership, and whether this precludes private ownership.

“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.” Paxton v. City of Dallas, 509 S.W.3d 247, 258 (Tex. 2017).

Here, the development of the U.S. Supreme Court’s understanding of the theory of public ownership of wild animals from Toomer v. Witsell, 334 U.S. 385, 402, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) (“The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.”).

The theory of public ownership of wildlife was questioned because there is no basis for state ownership as understood in the traditional proprietary sense. See, e.g., Dobie, 48 S.W.2d at 290.

In short, “[a] state does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture.” Douglas v. Seacoast Products, Inc., [431 U.S. at 284, 97 S.Ct. 1740].”).

Following the understanding of “public ownership” enunciated in these cases, the statutory provisions declaring that wild animals are the “property of the people of this state” and defining “wild” to be a species’s characteristic should not be understood as a traditional conception of ownership—i.e., proprietorship—over all animals within the species regardless of possession, but rather as a fiction expressive in legal shorthand of the importance to its people that the state has the power to preserve and regulate the exploitation of an important resource. See 530 Pa. 534, 610 A.2d 42 (1992) (per curiam).13

Thus, I conclude that deer breeders with a permit have a property interest in their breeder deer under common law principles after legally taking the deer from their natural liberty and keeping them in captivity pursuant to state law, while the state maintains sovereign “ownership”—as a legal *413 fiction and distinguished from proprietary ownership.14 See Toomer, 334 U.S. at 402, 68 S.Ct. 1156)).15 In sum, sovereign “ownership” describes the state’s authority to regulate wildlife for the benefit of the people in a manner consistent with our Constitution and the laws of our state, but sovereign ownership of wildlife is not proprietary ownership and therefore does not necessarily preclude an individual from acquiring ownership through legal possession and captivity of wild animals.16

*414 B. What process is due?

Having established that Peterson has a constitutionally protected property interest, I now turn to what process is due and whether the trial court properly granted the Department’s motion for summary judgment and denied Peterson’s motion for summary judgment as to Peterson’s due process claims. As an initial matter, I note that “[t]he constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).

Peterson’s motion for summary judgment, however, did not cite, analyze, or provide evidence of these factors establishing the amount of process due, given his circumstances. Nor did Peterson address these factors on appeal. Because he did not establish the amount of process due, Peterson failed to meet his burden of establishing as a matter of law that he is entitled to summary judgment on his procedural due process claims. See City of Richardson, 539 S.W.3d at 259. The district court did not err in denying Peterson’s motion for summary judgment.

In addition to arguing that Peterson has no constitutionally protected property interest, the Department in its motion for summary judgment argued that “even if [Peterson] had a protected interest and even if he had been denied a transfer permit, the deer-breeder industry’s interest in prompt permits would outweigh the incidental benefit of the burdensome procedures Peterson demands: a contested-case hearing for transfer permits.”17 Assuming *415 without deciding that the Department had sufficiently established that the City of Richardson, 539 S.W.3d at 259.

C. Attorney’s fees

As to the question of attorney’s fees, I agree with the Court that the district court had jurisdiction to award attorney’s fees under the Uniform Declaratory Judgment Act (UDJA), including against Bailey. But “[w]here the extent to which a party prevailed has changed on appeal, our practice has been to remand the issue of attorney fees to the trial court for reconsideration of what is equitable and just.” Bank of N.Y. Mellon v. Soniavou Books, LLC, 403 S.W.3d 900, 907 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

III. CONCLUSION

For these reasons, I concur with the Court’s holding affirming the dismissal of Peterson’s declaratory judgment and ultra vires claims, but respectfully dissent from affirming the district court’s order granting the Department’s summary judgment motion, awarding attorney’s fees to the Department, and denying Peterson’s motion for attorney’s fees. I would instead reverse and remand as to those issues.

Footnotes

1 A facility is defined in the Department’s regulations as “[o]ne or more enclosures, in the aggregate and including additions, that are the site of deer breeding operations under a single deer breeder’s permit.” 31 Tex. Admin. Code § 65.601(4) (2018) (Tex. Parks & Wild. Dep’t, Definitions).
2 We cite to the current version of regulations for convenience absent a material and substantial change.
3 Peterson challenged the rules on several other grounds but has chosen to proceed only on his procedural due process claim in this Court.
4 Sovereign immunity “also extend[s] to immunity from liability, but only immunity from suit implicates jurisdiction.” City of Austin v. Utility Assocs., 517 S.W.3d 300, 308 n. 18 (Tex. App.—Austin 2017, pet. denied).
5 Peterson also cites to 893 S.W.2d at 441. Neither case involved the kind of freestanding declaration of rights Peterson seeks here.
6 Peterson also sued Smith, Lockwood, and Wolf in their personal capacities. He later nonsuited his personal-capacity claims against Smith and does not mention his personal-capacity claims against Lockwood and Wolf in his brief to this Court. A brief must contain “a clear and concise argument for the contentions made,” supported by “appropriate citations to authorities and to the record.” RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018). We conclude Peterson waived his personal-capacity claims against Lockwood and Wolf.
7 Peterson initially contends we should not review the district court’s ruling because it is an improper advisory opinion. “The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties.” Tex. R. App. P. 47.1 (directing appellate courts to hand down an opinion “as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”).
8 The people of Texas subsequently amended the Constitution to state: “The conservation and development of all of the natural resources of this State ... are each and all hereby declared public rights and duties.” Tex. R. App. P. 47.1.
9 The Commerce Clause grants Congress authority to regulate interstate commerce but “also limits the power of states to interfere with interstate commerce.” ––– U.S. ––––, 138 S.Ct. 557, 199 L.Ed.2d 437 (2017).
10 The Parks and Wildlife Code now provides that “ ‘[w]ild,’ when used in reference to an animal, means a species, including each individual of a species, that normally lives in a state of nature and is not ordinarily domesticated.” Tex. R. App. P. 47.1.
11 Peterson asks us to apply Wiley was decided that we do not find it persuasive here.
12 Subchapter L does not address disposition of breeder deer after the permit term expires. However, Department regulations require the deer breeder to sell, transfer, or donate the breeder deer to a person who holds a permit allowing possession of them or to obtain authorization to release the breeder deer into the wild. See 31 Tex. Admin. Code § 65.612(b) (2019) (Tex. Parks & Wild. Dep’t, Disposition of Deer).
13 Even though several recent court decisions articulate the government’s authority over wild animals in terms of ownership, e.g., State v. Bartee, 894 S.W.2d 34, 47 (Tex. App.—San Antonio 1994, no pet.) (Rickhoff, J., concurring).
14 This Court has received an amicus brief from the Texas Wildlife Association, the Boone and Crockett Club, Texas Chapter of the Wildlife Society, the Association of Fish and Wildlife Agencies, the National Wildlife Federation, the National Wild Turkey Federation, Texas Chapter of the Coastal Conservation Association, the Backcountry Hunters & Anglers, and the Texas and Southwestern Cattle Raisers Association in support of the Department’s position.
15 Peterson cites to Calvert is not applicable here because there is no suggestion that the Department has revoked or intends to revoke Peterson’s breeder’s permit.
16 We stress that we express no opinion on whether Peterson has a vested right under the terms of his permit.
1 Although the Code regulates the possession of wild animals removed from their natural liberty and restricts the means by which ownership may be acquired by specifying the conditions of what may constitute legal captivity, I do not see this as contrary to ownership under the common law.
2 These include: Texas Wildlife Association, Boone and Crockett Club, Texas Chapter of the Wildlife Society, Association of Fish and Wildlife Agencies, The National Wildlife Federation, National Wild Turkey Federation, Texas Chapter of the Coastal Conservation Association, Backcountry Hunters & Anglers, and Texas and Southwestern Cattle Raisers Association.
3 The Texas legislature enacted the original predecessor to this statute in 1907, providing that “All the wild deer ... and all other wild animals, wild birds and wild fowls found within the borders of this State, shall be and the same are hereby declared to be the property of the public.” Act of April 19, 1907, 30th Leg., R.S., ch. 144, § 1, 1907 Tex. Gen. Laws 278, 278 (current version at Tex. Parks & Wild. Code § 1.011(a)).
4 As the Court notes, “Texas adopted the common law of England as its rule of decision,” which holds that “[p]rivate individuals could ‘reduce a part of this common property [in wild animals] to possession, and thus acquire a qualified ownership in it,’ but that right was subject to government regulation.” Ante at 390 (quoting Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979)).
5 The Court does not address the Department’s argument that relies on the statutory definition of “wild,” instead stating that the Court’s “narrower analysis [ ] is sufficient to dispose of Peterson’s appeal.” Ante at 392 n.10.
6 For similar reasons, I also find the Court’s discussion of the public trust doctrine and the 1907 statutory enactment of section 1.011, or another later enacted statute, clearly expressed the legislature’s intent to abrogate the common law principle that ownership rights in wild animals could be acquired by dominion through legal captivity. As explained more fully below, the answer to that question, in my opinion, is no.
7 In an analogous situation from oil and gas law—where the rule of capture was adopted from the doctrine of animals ferae naturae—the Texas Supreme Court recognized that “the law of capture” is “recognized as a property right” that is “subject to regulation under the police power of this state” and “the right to be protected against confiscation under the Commission’s oil and gas rules is not unconditional or unlimited.” Lone Star Gas Co. v. Murchison, 353 S.W.2d 870, 879 (Tex. App.—Dallas 1962, writ ref’d n.r.e.))).
8 The Court also asserts, “The Legislature has specifically provided that a breeder’s permit is valid for only a set amount of time” and “nothing in the statute contemplates that the breeder retains any rights over breeder deer after the permit expires or is revoked by the Department.” Ante at 393. From this, the Court claims that “allowing private property rights to arise in breeder deer is incompatible with the Legislature’s direction that breeder deer are ‘held under a permit’ ” because “if breeder deer become private property, the owner’s rights would not depend on the status of the permit because private property rights are ‘not derived from the legislature.’ ” Ante at 393 (first quoting (3), .360; see also 2 William Blackstone, Commentaries on the Laws of England, 393 (St. George Tucker ed., 2d ed. 1803) (“In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible.... But while they thus continue my qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly mine.”). To the extent the Court is raising the hypothetical question of whether a deer breeder maintains ownership over the deer if the Department did not renew the breeder’s permit, that question is not before the Court on this record and I therefore would not resolve it here.
9 “In the construction of an act, a court should consider all laws in pari materia, that is to say, all laws related to the subject of the act and the general system of legislation of which the act forms a part.” State v. Bartee, 894 S.W.2d 34, 45 (Tex. App.—San Antonio 1994, no pet.) (noting that courts may use statutory construction principle of in pari materia in determining legislative intent where “[s]tatutes that deal with the same general subject ... or relate to the same person or thing or class of persons or things, are considered to be in pari materia although they contain no reference to one another, and although they may have been enacted at different times”).
10 The Department regulated the ownership of dangerous wild animals under chapter 12G of the Texas Parks and Wildlife Code until 1997, when the legislature repealed the chapter. See House Comm. on Cty. Affairs, Bill Analysis, Tex. H.B. 1362, 77th Leg., R.S. (2001). In 2001, the legislature passed subchapter E of chapter 822 of the Texas Health and Safety Code, regulating dangerous wild animals. See Act of April 26, 2001, 77th Leg., R.S., ch. 54, § 1, 2001 Tex. Gen. Laws 90, 90 (codified at Tex. Health & Safety Code § 822.102(4) (defining “[d]angerous wild animal”).
11 Moreover, the Department’s own rules contemplate private ownership of deer contrary to its theory of absolute state ownership. See 31 Tex. Admin. Code § 65.133(b) (Tex. Parks & Wildlife Dep’t, General Provisions) (“[Buck deer held under a scientific breeder’s permit] remain private property and may be recaptured[.]” (emphasis added)).
12 I agree with the Court that Hughes is not binding authority on this issue.
13 Moreover, if this Court were to construe Union Pac. R.R. v. Nami, 498 S.W.3d 890, 896–97 (Tex. 2016) (“Broadly speaking, and with various exceptions ... a person who owns, possesses, or harbors a wild animal is strictly liable for its actions.”).
14 Because I conclude that Peterson has a constitutionally protected property interest under common law, I do not address whether Peterson has a property interest under the terms of his permit as provided by statute. See, e.g., Tex. Parks & Wild. Code § 43.357(a).
15 But see Anderton, 605 F. App’x at 348 (“Nowhere do the statutes or regulations state that breeder deer become the property of a permit holder. Regardless, even if they did give ownership of breeder deer to permit holders, the Andertons were not permit holders when the deer were killed.”).
16 The Department makes two additional arguments. First, it argues that “[t]he State’s conservation of natural resources is premised on public ownership,” citing Hendee v. Dewhurst, 228 S.W.3d 354, 373 (Tex. App.—Austin 2007, pet. denied). Thus, even assuming that the Conservation Amendment was premised on public ownership, it is not the province of the judiciary to apply the Conservation Amendment and declare public ownership of natural resources under that Constitutional provision.

Second, the Department argues that the Texas Supreme Court “held that when the State grants use of a public resource through a permit, the State retains ‘rights as the owner of the’ resource.” Wright is inapposite here.

17 The Department also argued that Peterson lacks standing because he testified in his deposition that the Department never denied his transfer permit and therefore his alleged injury is not “concrete and particularized, actual or imminent, not hypothetical.” See Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 928 (Tex. App.—Austin 2010, no pet.) (collecting cases; holding that alleging ordinance restricted use of property, caused additional expenses, and damaged or destroyed market satisfied standing requirement; and noting plaintiff is not required to allege “deprivation of a ‘vested right’ constituting a due-process violation to demonstrate the requisite infringement of a ‘legally protected interest’ ”).
18 The Department argued in its motion that a “ ‘statewide transport ban’ applied to all deer breeders would not violate due process” because “Peterson was afforded the process he was due during the enactment of the legislation and adoption of the rules following notice-and-comment procedures,” citing id. at 818.

However Id. at 819.

Here, in contrast, the property interest is not an entitlement benefit created by statute, but one arising out of longstanding common law principles, although regulated by statute. Nor does the Department have “unfettered discretion” in restricting that interest. Although the Department is authorized to establish “procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer,” Lee and asserting that due process was satisfied through “the enactment of the legislation and adoption of the rules following notice-and-comment procedures,” the Department did not meet its burden to establish that it was entitled to summary judgment on Peterson’s due process claims.

19 On appeal, the Department also challenges jurisdiction over Peterson’s due process claims under the UDJA as redundant with Peterson’s APA claims. See Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 80 (Tex. 2015).
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