Opinion issued August 21, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00755-CV ——————————— RAUL AMPARO ZUNIGA RODRIGUEZ AND ANA MARIA ORTIZ MARTINEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES, AND HEIRS OF THE ESTATE OF RAUL AMPARO ZUNIGA ORTIZ JR., AND JUANA GUADALUPE MARTINEZ, AS NEXT FRIEND OF SEBASTIAN ZUNIGA AND WENDY ZUNIGA, HEIRS OF THE ESTATE OF RAUL AMAPRO ZUNIGA ORTIZ, Appellants V. CONWAY WAAK JR. AND MARLENE WAAK, D/B/A CARMINE CHAROLAIS RANCH, AND CARMINE CHAROLAIS RANCH, Appellees
On Appeal from the 155th District Court Fayette County, Texas1
1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas. Misc. Docket No. 17-9128 (Tex. Sept. 28, 2017); see also TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases). Because we do not find any controlling authority from the Austin Court of Appeals for the issues raised, we apply precedent of this Court. See TEX. R. APP. P. 41.3 Trial Court Case No. 2014V-262
CONCURRING & DISSENTING OPINION
In 2005, this Court incorrectly held that the Farm Animals Activities Act (then
called the Equine Act) did not apply to employees. Because the majority upholds
this incorrect holding, I respectfully dissent, in part. Because the trial court granted
greater relief than was sought in its grant of summary judgment, I also concur in the
judgment only, in part.
As the majority observes, Zuniga died from injuries inflicted by one of the
Waaks’ bulls. His family sued the Waaks. The Waaks filed a motion for summary
judgment, arguing the claims were barred by the Farm Animals Activities Act.
Zuniga’s family responded, urging the trial court to adopt this Court’s holding that
the Farm Animals Activities Act did not apply to employees.2 See Dodge v. Durdin,
187 S.W.3d 523, 530 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The trial court
declined to adopt Dodge and granted summary judgment in full, even though the
Waaks had moved only for a partial summary judgment.
(requiring reviewing court to “decide the case in accordance with the precedent of the transferor court” when courts’ precedents are inconsistent). 2 The Austin Court of Appeals, from which this case was transferred, does not have any controlling authority on this matter. 2 In their first issue, Zuniga’s family argues the trial court erred by determining
their claims were waived by the Farm Animals Activities Act. In their second issue,
they argue Zuniga was not a “participant” in a farm animal activity as that term is
defined within the act. In their third issue, they argue that there is a fact issue about
whether the Waaks were exempt from the application of the Texas Workers
Compensation Act. All three of these issues concern the Farm Animals Activities
Act and our interpretation of the act’s definition of “participant” in Dodge.
The act originally was known as the Equine Act and waived liability for
owners of horses. See id. at 527. It has since been updated and renamed to waive
liability for a broad array of animals. See Act of May 23, 2011, 82nd Leg., R.S., ch.
896, 2011 Tex. Gen. Laws, 2288, 2288–90 (codified at TEX. CIV. PRAC. & REM.
CODE ANN. §§ 87.001–.005 (West 2017)). Other than expanding the class of animals
to which it applies, the act remains substantively the same. With the update, the act
applies to activities related to cattle. See CIV. PRAC. & REM. § 87.001(2-a)(B).
Section 87.003 of the act waives liability against any person for damage
incurred by “a participant in a farm animal activity or livestock show” when the
damage “results from the dangers or conditions that are an inherent risk of a farm
animal activity or the showing of an animal on a competitive basis in a livestock
show.” Id. § 87.003. The statute explicitly identifies inherent danger to include “the
propensity of a farm animal or livestock animal to behave in ways that may result in
3 personal injury or death to a person on or around it.” Id. § 87.003(1). Section 87.004
provides certain exceptions to the waiver of liability in section 87.003. See id.
§ 87.004.
“Farm animal activity” is defined to include a broad number of activities. See
id. § 87.001(3). It includes, for example, training or teaching activities that involve
a farm animal, boarding a farm animal, “riding, inspecting, evaluating, handling, or
unloading a farm animal belonging to another,” and providing veterinary services.
Id. § 87.001(3)(B)–(D), (G).
“Participant” is defined to mean, “with respect to a farm animal activity, a
person who engages in the activity, without regard to whether the person is an
amateur or professional or whether the person pays for the activity or participates in
the activity for free.” Id. § 87.001(9). The parties disputed before the trial court
whether Zuniga was a participant.
Only a few courts have construed the meaning of “participant” under the act.
The first to do so was the Corpus Christi-Edinburg Court of Appeals. See Johnson
v. Smith, 88 S.W.3d 729, 731 (Tex. App.—Corpus Christi 2002, no pet.). In
Johnson, an independent contractor working for the owner of a horse was bit by the
horse after the horse finished breeding. Id. at 730. The court held succinctly that
the plaintiff was a participant, noting that “[a] ‘participant’ is ‘anyone who engages
4 in an equine [now, farm animal] activity.’” Id. at 731 (quoting CIV. PRAC. & REM.
§ 87.001(9)).
Next, we construed the meaning of “participant” in Dodge. 187 S.W.3d 527–
30. We held that employees of the owner of a farm animal were not included in the
definition of participant. Id. at 530. We presented three grounds to support our
holding: statutory construction of the definition, legislative history, and the
consequences of alternative constructions. Id. at 527–30.
For statutory construction, we focused on the phrase “without regard to . . .
whether the person pays for the activity or participates in the activity for free” within
the definition. Id. at 528 (citing CIV. PRAC. & REM. § 87.001(9)). We reasoned that,
because employees get paid for activities rather than pay or do them for free, this
phrase suggested that the definition was limited to consumers, not employees. Id.
We distinguished the contrary holding in Johnson by pointing out that the
plaintiff was an independent contractor, not an employee. Id. (citing Johnson, 88
S.W.3d at 731). Johnson did not rely on the injured party’s status as an independent
contractor to conclude that he was a participant, however. See Johnson, 88 S.W.3d
at 731; see also Johnston v. Smith, No. 13-05-00368-CV, 2008 WL 2208865, at *1
(Tex. App.—Corpus Christi May 29, 2008, no pet.) (mem. op.) (“The trial court
evidently based his holding upon our decision in [Johnson], where, in dicta, we
stated that Johnston was an independent contractor.”). Further, independent
5 contractors, like employees, get paid for their activities. So this was not a distinction
that aided in supporting our construction of the plain language of the provision.
In addition, the definition of participant under the act says the general
definition (“a person who engages in the activity”) also applies “without regard to
whether the person is an amateur or professional.” CIV. PRAC. & REM. § 87.001(9).
“Professional” connotes a person being paid for the activity. See Professional, THE
NEW OXFORD AM. DICTIONARY (2d ed. 2005) (“engaged in a specified activity as
one’s main paid occupation”). This does not support our conclusion that the plain
language of the definition indicates the term applies only to people who pay for the
activity or do it for free. See Dodge, 187 S.W.3d at 528.
For legislative intent, we observed in Dodge that a legislative report had cited
the negative impact of liability for horses on the tourism industry. Id. at 528–29.
We reasoned that, because the tourism industry had been specifically mentioned in
this report and the employer-employee relationship had not been mentioned, the
legislative history suggested liability was only intended to be limited for “tourists
and other consumers of equine activities.” Id. at 529.
Since Dodge, however, the Supreme Court of Texas has disfavored relying on
legislative history as a basis for construing statutes that are not ambiguous on their
face. See City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008) (“When a
statute’s language is clear and unambiguous, it is inappropriate to resort to rules of
6 construction or extrinsic aids to construe the language.”). The court has admonished
Texas courts to “[c]onstru[e] clear and unambiguous statutes according to the
language actually enacted and published as law—instead of according to statements
that did not pass through the law-making processes, were not enacted, and are not
published as law.” Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011); accord
Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 888 (Tex. App.—Houston [1st
Dist.] 2015, no pet.). “If the text is unambiguous, we must take the Legislature at
its word and not rummage around in legislative minutiae.” Alex Sheshunoff Mgmt.
Servs., L.P. v. Johnson, 209 S.W.3d 644, 652 n.4 (Tex. 2006).
For consequences of alternative construction, we reasoned in Dodge that to
construe “participant” to include employees under the act “would be to abrogate
well-settled employer duties in Texas under the Labor Code.” 187 S.W.3d at 529.
We focused specifically on the Texas Workers’ Compensation Act and its history.
Id.
In Keng, the Supreme Court of Texas construed the meaning of a section under
the Workers’ Compensation Act. Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.
2000). The court held that, to construe the statute, it could not construe it in a manner
that implied restrictions not found in the plain language of the statute. Id. In Dodge,
we relied on this holding to mean that the subject-matter of the statute could not be
modified by any other Texas law “without express legislative action.” 187 S.W.3d
7 at 529 (citing Keng, 23 S.W.3d at 349). We reasoned that, “without express
legislative action, we cannot conclude that by enacting the Equine Act, the
Legislature intended to lessen the consequences imposed on employers who choose
not to subscribe to workers’ compensation insurance.” Id. Keng does not support
this assertion. See 23 S.W.3d at 349. Even so, enacting a new set of statutes is
“express legislative action.”
The Legislature knows how to exempt a law’s application to other laws. In
fact, the Legislature did just that within the Farm Animals Activities Act. “This
chapter does not apply to an activity regulated by the Texas Racing Commission.”
CIV. PRAC. & REM. § 87.002. Had the Legislature wanted to exclude the act’s
application to Texas labor laws, it could have done so. See Entergy Gulf States, Inc.
v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (holding courts presume “that
lawmakers enact statutes with complete knowledge of existing law”). The fact that
the Legislature did not also exclude the act’s application to activities regulated by
the Labor Code suggests, then, that the Legislature meant not to exclude those
activities. See Sommers ex rel. Ala. & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521
S.W.3d 749, 754 (Tex. 2017) (“[W]e analyze a statute as a cohesive, contextual
whole, accepting that lawmaker-authors chose their words carefully, both in what
they included and in what they excluded.”); Steering Comms. for Cities Served by
TXU Elec. v. Pub. Util. Comm’n, 42 S.W.3d 296, 302 (Tex. App.—Austin 2001, no
8 pet.) (applying presumption “that the purposeful inclusion of certain terms in a
statute implies the purposeful exclusion of terms that are absent”).
Since Dodge, the Supreme Court of Texas has emphasized that, “[i]f a statute
is worded clearly, we must honor its plain language, unless that interpretation would
lead to absurd results.” Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 629
(Tex. 2013). The bar for concluding a plain-faced interpretation of a statute would
lead to absurd results “is high[] and should be.” Id. at 630. “The absurdity safety
valve is reserved for truly exceptional cases, and mere oddity does not equal
absurdity.” Id. “Unintended, improvident, inequitable, over-inclusive, or under-
inclusive consequences of a statute is not proof of absurd results.” Choice! Power,
L.P. v. Feeley, 501 S.W.3d 199, 214 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(citing Combs, 401 S.W.3d at 630). Instead, the plain meaning of a statute leads to
absurd results only when it is impossible for a rational Legislature to have intended
its result. Combs, 401 S.W.3d at 629.
It does not lead to an absurd result to exempt injuries sustained from a farm
animal from the liability an employer would otherwise face for its employees. Even
if there were proof that the Legislature did not intend to include employees in its
definition of participants under the act, this is not sufficient. See id. at 630 (holding
unintended consequence does not rise to level of absurd result); Choice! Power, 501
S.W.3d at 214 (holding construing plain language of statute to allow attorneys’ fees
9 for individuals and corporations but not for limited partnerships, even if
unintentional, did not lead to absurd result).
The most recent case to construe the meaning of “participant” under the act
comes from the Fourteenth Court of Appeals. See Young v. Kim, 373 S.W.3d 776,
780–81 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). In Young, a woman
worked at some stables, helping to take care of horses that various owners kept there.
Id. at 778. While the woman was walking one horse to a paddock, the horse kicked
her. Id. at 779. The owners sought summary judgment on the woman’s claims,
arguing the application of the act. See id. On appeal, the woman cited Dodge to
argue the act did not apply to her. Id. at 780.
The court “disagree[d] that only consumers of equine activities qualify as
participants in equine activities as defined in the Equine Act.” Id. at 780–81. The
court observed, “The Equine Act is a comprehensive limitation of liability for equine
activities of all kinds.” Id. at 781. It further concluded that the act “applies to all
‘participants.’” Id. “We find nothing in the language of the statute mandating that
its limitation of liabilities applies only to consumer-oriented equine activities.” Id.
The court pointed out that some of the activities defined under the act, such as
assisting in the medical treatment of animals, “does not involve tourists or other
consumers of equine activities.” Id.
10 The court also cited to law in its analysis recognizing that statutes are
construed according to their plain meaning without regard to extrinsic sources and
that such sources “may not be used to create an ambiguity in a statute.” Id. (citing
Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996 S.W.2d 864, 865–66 (Tex.
1999)).
The court did not reach our reliance on the Workers’ Compensation Act as a
basis to hold employees were not participants under the Farm Animals Activities
Act. See id. at 781–82. Instead, it concluded that the injured party was an
independent contractor, not subject to this distinction. Id. at 782.
The majority’s holding does not cure the ills of Dodge. The majority holds
that Zuniga is not a participant because he does not meet the definition of a “farm
animal professional.” See CIV. PRAC. & REM. § 87.001(5). The problem with this
reasoning is that, while it uses the word “professional,” the definition of
“participant” does not use the phrase “farm animal professional.” See id.
§ 87.001(9). The majority, then, is substituting a general word that is present in the
definition for a defined phrase that is not present and is basing Zuniga’s exemption
on this misconstruction.
For support that it can substitute “farm animal professional” for
“professional,” the majority relies on the proposition that courts “may not judicially
amend a statute and add words that are not implicitly contained in the language of
11 the statute.” Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988).
Without explaining its reasoning, the majority is suggesting that the Legislature
implicitly meant to write “farm animal professional” when it wrote “professional.”
The Supreme Court of Texas has admonished courts to sparingly apply the
rule of finding words or phrases “implicitly contained” in a statute. Fitzgerald, 996
S.W.2d at 867. “Only truly extraordinary circumstances showing unmistakable
legislative intent should divert us from enforcing the statute as written.” Id. It strains
credulity to argue that the Legislature defined a specific phrase, used it in other parts
of the act, failed to use it in the place the majority attempts to apply it, and yet made
it implicitly clear that it really intended to use the phrase there. To the contrary, the
use of the phrase in other parts of the act excludes its application here. “When the
Legislature uses a word or phrase in one portion of a statute but excludes it from
another, the term should not be implied where it has been excluded.” R.R. Comm’n
of Texas v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628
(Tex. 2011). Accordingly, the majority’s construction of the definition of
“participant” is impermissible.
The majority further relies on stare decisis in reaching its decision. As the
majority correctly observes, stare decisis allows parties to justifiably rely on our past
opinions, which promotes predictability in the law. Martinez v. Hous. McLane Co.,
LLC, 414 S.W.3d 219, 223 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
12 “‘[T]he doctrine of stare decisis has its greatest force’ in the area of statutory
construction.” Willis v. BPMT, LLC, 471 S.W.3d 27, 33 (Tex. App.—Houston [1st
Dist.] 2015, no pet.) (quoting Sw. Bell Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443,
447 (Tex. 2008)). This is because, if the Legislature does not modify the statute to
abrogate the court’s interpretation, “there is little reason for the court to reconsider
whether its decision was correct.” Mitchell, 276 S.W.3d at 447.
Even so, “the doctrine is not absolute.” Id. When the reasons for adhering to
our prior holding no longer further the interests of efficiency, fairness, and
legitimacy and when the general interest will suffer less from a departure in the law
than from strict adherence, then we should depart from our prior holding. Id.
“[S]tare decisis does not compel perpetuating an interpretation of [a statute] that . . .
cannot be discerned from the text of the statute.” Marsh USA Inc. v. Cook, 354
S.W.3d 764, 779 (Tex. 2011). Courts are not “compel[led] . . . to follow a past
decision when its rationale does not withstand ‘careful analysis.’” Id. at 779–80
(quoting Arizona v. Gant, 556 U.S. 332, 348, 129 S. Ct. 1710, 1722 (2009)).
For allowing parties to justifiably rely on our past decisions, I have little
reason to believe that many parties have come to rely on our holding. See Martinez,
414 S.W.3d at 222 (holding stare decisis allows parties to justifiably rely on past
opinions, promoting predictability in law). I do not expect that anyone has relied on
Dodge as a reason to put themselves at greater risk of being injured by farm animals
13 than they otherwise would have. Cf. id. at 223 (declining to revisit rule concerning
injuries at a baseball game when rule had been in effect since early days of baseball
and sports teams had good reason to rely on rule). It cannot be said that any party
to this case relied on Dodge, because this case was transferred from the Austin Court
of Appeals. Prior to the transfer, the parties were not subject to the jurisdiction of
this Court or bound by our rulings. To the contrary, the trial court rejected Zuniga’s
family’s argument to apply Dodge as a ground to deny the motion for summary
judgment.
For the Legislature modifying the act without changing the definition of
“participant,” there is a split of authority on the definition of “participant.” Compare
Johnson, 88 S.W.3d at 731 with Dodge, 187 S.W.3d at 530.3 We have no reason to
believe the Legislature meant for both, conflicting definitions to apply. Accordingly,
we cannot construe silence by the Legislature as approving one construction over
the other.
3 Zuniga’s family argues in their reply brief that the Corpus Christi-Edinburg Court of Appeals has since endorsed our holding in Dodge. It has not. On appeal after remand, the court recognized our holding in Dodge. Johnston v. Smith, No. 13-05- 00368-CV, 2008 WL 2208865, at *2 (Tex. App.—Corpus Christi May 29, 2008, no pet.) (mem. op.). The court held that its mentioning in the previous opinion that the plaintiff was an independent contractor was not governed by law of the case and the parties were allowed to argue at trial about whether the plaintiff was, in fact, an employee. Id. at *2–4. The court did not suggest that this difference would have changed its analysis in the prior opinion that the plaintiff’s claims were governed by the act. See id. 14 Because the plain language of the statute does not support our interpretation
in Dodge, because there is no reason to believe parties have come to rely on Dodge,
and because there is no indication that the Legislature has approved our
interpretation, I would not hold that stare decisis prevents this Court from
disapproving of Dodge. Based on the foregoing, I would overrule our holding in
Dodge and hold that employees are not excluded from the definition of “participant”
under the Farm Animals Activities Act. As a result, I would overrule Zuniga’s
family’s second issue.
In their third issue, Zuniga’s family argues that the Waaks failed to establish
as a matter of law that they were exempt from the Workers’ Compensation Act.
Because I believe we should no longer draw a distinction between employees and
non-employees under the act, I would not need to reach this point.
In their first issue, Zuniga’s family argues that the trial court erred in granting
summary judgment on their claims based on the Farm Animals Activities Act. The
Waaks moved for partial summary judgment on Zuniga’s family’s claims, arguing
the Farm Animal Activities Act governed Zuniga’s family’s claims and waived their
liability to Zuniga’s family. The Waaks recognized in the motion that the act has
exceptions to the waiver of liability. They did not seek summary judgment on the
application of the waivers. Instead, they asked the court to grant summary judgment
on Zuniga’s family’s claims except to the extent that the claims fell within the
15 exceptions to the Farm Animals Activities Act. Instead, the trial court granted
complete summary judgment on the claims. “A judgment that grants more relief
than a party is entitled to is subject to reversal.” Lehmann v. Har-Con Corp., 39
S.W.3d 191, 200 (Tex. 2001). A party can only obtain summary judgment on the
grounds raised and proved as a matter of law within the motion. See TEX. R. CIV. P.
166a(c). Because the Waaks expressly stated they were not challenging the
application of any of the exceptions to the waiver of immunity, the trial court erred
by granting complete summary judgment on Zuniga’s family’s claims. See
Lehmann, 39 S.W.3d at 200. Accordingly, I would sustain Zuniga’s family’s first
issue as it applies to the exceptions to waiver of liability under the Farm Animals
Activities Act and otherwise overrule the issue.
I would overrule Dodge, uphold the trial court’s determination that the Farm
Animals Activities Act applies to Zuniga in general, and reverse the trial court’s sua
sponte rendering judgment on the application of the act’s exceptions. Because the
majority upholds Dodge and reverses the trial court’s summary judgment in whole,
I dissent, in part, and concur in the judgment only, in part.
Laura Carter Higley Justice
Panel consists of Justices Jennings, Keyes, and Higley. 16 Justice Higley, concurring in part and dissenting in part.