ACCEPTED 15-24-00052-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/10/2025 11:41 PM No. 15-24-00052-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS IN THE FIFTEENTH DISTRICT COURT OF APPEALS (AUSTIN ) TEXAS AUSTIN, 3/10/2025 11:41:38 PM CHRISTOPHER A. PRINE Clerk Richard M. YOUNG, Jr. a/k/a Richard Young, Appellant vs.
TEXAS PARKS & WILDLIFE DEPARTMENT, et al., Appellees.
APPELLANT’S REPLY BRIEF
ORAL ARGUMENT REQUESTED
KELLER STOLARCZYK PLLC Kimberly S. Keller SBN: 24014182 Email: kim@kellsto.com 215 West Bandera Rd No. 114, PBO 800 Boerne, Texas 78006 Tele: 830.981.5000 Facs: 888.293.8580
Attorney for Appellant
1 TABLE OF CONTENTS Page INDEX OF AUTHORITIES ............................................................. 3
SUMMARY OF REPLY ARGUMENT ............................................ 4
REPLY ARGUMENT IN SUPPORT OF REVERSAL ................. 6
I. TPWD WRONGFULLY ASSUMES THIS COURT WILL MERELY RUBBER-STAMP TPWD’S STATUTORY INTERPRETATION OF “WILD ANIMAL” ....................................... 6
II. TPWD’S SILENCE AS TO YOUNG’S NON-BREEDER DEER CLAIMS SPEAKS VOLUMES ....................................................... 12
III. THE TRIAL COURT ERRED IN FAILING TO AFFORD YOUNG THE RIGHT TO REPLEAD .............................................. 14
A. Young’s Amended Petition, filed the night before the jurisdictional plea hearing, raised broad- based takings & due process claims. ............................ 15
B. TPWD abandoned its right to file Special Exceptions & demanded an immediate hearing on its jurisdictional challenge. ...................................... 23
C. If in doubt, Young should be given the opportunity to replead. .................................................... 24
CONCLUSION & PRAYER ........................................................... 25
CERTIFICATE OF COMPLIANCE & SERVICE ....................... 27
2 INDEX OF AUTHORITIES
Accident Fund Ins. Co. of Am. v. Texas Dep't of Ins., Div. of Workers' Comp., 2025 WL 421009 (Tex. Feb. 7, 2025) ............................ 10,11
Bailey v. Smith, 581 S.W.3d 374 (Tex. App. – Austin 2019, no pet.) ....................... 11
City of Waco v. Kirwan, 298 S.W.3d 621 (Tex. 2009) ............................................................ 24
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003) ............................................................ 23
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), ........................................................................ 4
Mosley v. Tex. Health & Human Servs. Cmm’n, 593 S.W.3d 250 (Tex. 2019) ............................................................ 14
Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) ............................................................ 23
Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ............................................................ 24
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ....................................................... 23,24
The Huff Energy Fund, LP v. Longview Energy Co., 482 S.W.3d 184 (Tex. App.—San Antonio 2015) ........................... 24
Longview Energy Co. v. Huff Energy Fund LP, 533 S.W.3d 866 (Tex. 2017) ............................................................ 24
Tyler v. Hennepin Cnty., Minn., 598 U.S. 631 (2023) .......................................................................... 4
3 SUMMARY OF REPLY ARGUMENT
In a case of this significance, bearing on whether state agencies are
allowed to continue eroding Texas’s billion-dollar deer hunting and
breeding industry, oral argument is warranted. Young filed an extensive
opening brief (90 pages) addressing the complex constitutional issues
presented within this case of first impression. Resolution of those issues
require this Court, for the first time, to interpretate recently-issued
precedent by the Supreme Court of the United States that calls into
question the conduct of TPWD and the legislative authority relied upon
by the agency.1
In response to Young’s voluminous brief, TPWD responded with
superficial, presumptuous arguments that fail to acknowledge the
devastating impact of its hysterical reaction to fears of Chronic Wasting
Disease (“CWD”). TPWD aimed its sites on Young’s breeder deer, ranch,
and business, as well as those of other Texas deer breeders.2 TPWD’s
1 Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (abandoning Chevron doctrine as “fundamentally misguided,” demanding deference to agency-based statutory interpretation); Tyler v. Hennepin Cnty., Minn., 598 U.S. 631 (2023) (rejecting Minnesota’s attempt to “legislate away” private citizens’ vested property rights and reminding States that state legislation cannot override federal and state civil liberties demanding due process and protecting private property rights). 2 In an Amicus Brief filed by the TEXAS CWD COALITION and PATRIOTS OF TRUTH in support of Young’s Emergency Motion to Stay, the Amici, on Page 11 of the Amicus 4 response brief, when read between the lines, shows the agency believes
this Court will merely rubber-stamp the agency-based statutory
interpretation.
But, this appeal is about more than Young’s breeder deer and,
contrary to TPWD’s request, this Court cannot merely sweep under the
rug the erroneous dismissal of Young’s non-breeder deer claims. As
spelled out in Young’s live petition, TPWD’s unconstitutional conduct
also debilitated and destroyed Young’s ranch land, improvements, small
business, and rendered impotent the rights he continues to possess under
his validly issued breeding permits – without due process or just
compensation.
Young’s brief independently analyzes each and every one of the
vested property rights taken, without due process. In hindsight, TPWD
likely regrets its insistence in going forward with the plea to the
jurisdiction hearing after Young filed, the day before the hearing, a broad
amended petition raising a series of additional claims. Indeed, TPWD’s
co-defendant (and not party to this appeal), TAHC, took the more
Brief, offers data revealing that TPWD’s CWD-based targeting of breeder deer, beginning in 2014, has killed off fifty-percent (50%) of all Texas deer breeding operations, going from 1,395 in 2014 to 732 in 2024. 5 cautious approach, sought a continuance of the hearing, and likely
intends to file special exceptions if necessary to flesh out the expansive
nature of Young’s amended petition. Thus, at a minimum, despite
TPWD’s rush to lock the courthouse doors to Young and his expansive
claims, binding precedent requires a remand to afford Young a chance to
replead.
REPLY ARGUMENT IN SUPPORT OF REVERSAL
I. TPWD WRONGFULLY ASSUMES THIS COURT WILL MERELY RUBBER- STAMP TPWD’S STATUTORY INTERPRETATION OF “WILD ANIMAL”
TPWD spends the bulk of its response brief contending Young has
no vested right in his breeder deer, championing the statutory provision
stating all “wild animals” that are “inside the borders of this state” are
owned by the State.3 Notably, the term “wild” is not defined in the
statute. Black’s Law Dictionary tells us “[w]ild animals” are “[a]nimals of
an untamable disposition; animals in a state of nature.” BLACK’S LAW
DICTIONARY (6th Edition 1991).
This is an image of breeder deer born and raised on Young’s ranch:
3 “All 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.” TEX. PARKS & WILDLIFE CODE § 1.011 6 On his website, Young breaks down the extensive lineage of each breeder
deer, all raised exclusively in high-fenced pens, similarly to livestock, and
then fed, reproduced, and sold to others, like livestock.4
Young’s breeding program, like that of all deer breeders, carefully
cultivated the genetics of the whitetail offspring, seeking to reproduce
high-quality animals, just as other Texas livestock ranchers. This
flowchart is provided by Young on his website to detail to potential
purchasers the lengthy lineage and selective breeding protocols
developed by him over the past two decades to raise whitetails on his
ranch:
Triple 4 AAA&J Ranch (Gillespie County), Our Breeding Program: https://www.tripleaaajranch.com/breeding-info/ (last visited on March 10, 2025). 7 Id. Yet, TPWD assumes within its responsive brief (that lacks any
substantive statutory analysis that Young’s whitetails constitute “wild
animals” owned, not by Young, but by the State. TPWD argues because
Young’s deer “belong to the State,” it may do with these whitetails as it
pleases, i.e., demand euthanasia or, alternatively, destroy the animals
and their value by refusing to allow Young to move them from their pens,
without affording Young any form of due process or just compensation as
occurs with any other private property right owned by a Texan.
8 Black’s Law Dictionary also defines “[w]ild land” as “[l]and in a
state of nature, as distinguished from improved or cultivated land.”
BLACK’S LAW DICTIONARY (6th Edition 1991). The breeding pens operated
by Young, that TPWD constitutes “wild land” resemble the same type of
improvements seen on other traditional livestock ranches:
Young’s Mtn for Emergency Relief, Exh.1. The high-fencing identified
above in red is heavy-duty and doubly-layered with electric wiring:
Id. at Exh.2. Accordingly, although Young is the proud owner of nearly 9 1,500 acres of Texas land, the portion of the ranch TPWD claims is “wild”
and, thus, under its purview according to its statutory interpretation, is
improved and cultivated land.
Accordingly, Young’s appeal requires this Court to independently
analyze the statute upon which TPWD’s jurisdictional plea is based, not,
as TPWD insinuates is a compulsory adoption of its reading of the
statute. Justice Young of the Supreme Court of Texas recently referenced
Raimondo’s repudiation of the Chevron deference doctrine when
concurring in the denial of a petition for review in a case “rais[ing]
significant statutory-interpretation questions” that implicate “the proper
role of administrative agencies as compared to the courts.” Accident Fund
Ins. Co. of Am. v. Texas Dep't of Ins., Div. of Workers' Comp., No. 23-0273,
__ S.W.3d __, 2025 WL 421009, at *4 (Tex. Feb. 7, 2025) (Young, J.,
concurring).
There, Justice Young indicated Texas courts’ duty, similar to the
duty on federal courts as expressed in Raimondo, to perform an
independent statutory analysis, as opposed to the agency-deferential
interpretation called for by TPWD:
Administrative agencies in Texas have seemingly never enjoyed the deference once endorsed by the
10 U.S. Supreme Court, although our cases have occasionally hinted that “the analysis in which we engage is similar.” If ever there were a time to transform similarity into sameness (a doubtful proposition all along in this context), it is certainly not now, when the Supreme Court has decidedly abandoned Chevron as “fundamentally misguided.”
Accident Fund Ins. Co. of Am. v. Texas Dep't of Ins., Div. of Workers'
Comp., No. 23-0273, __ S.W.3d __, 2025 WL 421009, at *4 (Tex. Feb. 7,
2025) (citing Raimondo) (citations omitted).
In conclusion, TPWD argues Young has no right to set foot in the
courthouse doors regarding the destruction of his breeder deer without
due process or compensation and that courts altogether lack jurisdiction;
yet, the centerpiece of TPWD’s jurisdictional challenge, i.e., that Young
can and shall never have a vested right in his breeder deer, is Bailey, a
split opinion from the Third Court of Appeals, sharply criticized by a
sagacious dissenting opinion5 resembling the reasoning set forth by Chief
5 TPWD cites to Bailey v. Smith, 581 S.W.3d 374 (Tex. App. – Austin 2019, no pet.), a split opinion authored by Justice Smith that adopted TPWD’s interpretation of Section 1.011 that breeder deer are “wild animals.” TPWD Br. at 14. TPWD failed to address the extensive dissent authored by Justice Goodwin, who reasoned that Section 1.011 “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.” Id. at 406 (Goodwin, J., dissenting) (emphasis added & further explaining, “Because it is undisputed that Peterson legally held the breeder deer under permit and in captivity, 11 Justice Roberts in Tyler years later. This Court must conduct an
independent statutory analysis of the relevant code provisions and
should revisit the precedent upon which TPWD’s jurisdictional challenge
as to Young’s breeder deer in light of Raimondo and Tyler (which has yet
to be addressed by a Texas court.
II. TPWD’S SILENCE AS TO YOUNG’S NON-BREEDER DEER CLAIMS SPEAKS VOLUMES
TPWD’s responsive briefing is perplexing. It focuses almost
exclusively on Young’s breeder deer, arguing Young is not entitled to due
process or just compensation for the destruction and taking of his breeder
deer, but then wholly ignores Young’s parallel due process and takings
claims as to Young’s additional private property:
(1) his land and the improvements built upon it;
(2) his small business; and
(3) his permit.
All three of these property interests have been undisputedly negatively
impacted, if not altogether destroyed, by TPWD’s injurious conduct.
I conclude that Peterson acquired a constitutionally protected property interest in the breeder deer and therefore respectfully dissent from the Court's contrary conclusion”). 12 While TPWD response brief focused almost exclusively on Young’s
claim to his breeder deer, demanding this Court adopt its interpretation
of “wild animal” and insists this Court to hold Young has no vested rights
to the breeder deer he produced, fed, and raised like livestock, TPWD
pretty much ignores Young’s non-deer breeder claims (ranch acreage,
improvements, small business, and existing [non-revoked] breeding
permits). Yet, all of Young’s private property is constitutionally
protected, deserving of separate and independent analyses.
Ironically, even TPWD’s primary case, Bailey, addressed the unique
nature of these separate and distinct categories of private property,
taking care to emphasize that its narrow holding did not address them:
Our conclusion does not address whether a breeder has a vested right in a breeder's permit. Peterson asserts in his briefing that “regardless of the captive-bred deer ownership issue” the Department must further show that he has no protected property interest in his breeder's permit. Specifically, he asserts that “the pursuit of one's chosen, lawful occupation” is a protected interest and, as a result, his permit “cannot be taken without procedural due process.”
The right to pursue a certain occupation is an economic liberty interest protected by the substantive component of the due course of law clause. To establish that an economic regulation is unconstitutional for violating this protection, a
13 party must show either that the law's “purpose could not arguably be rationally related to a legitimate governmental interest” or that “when considered as a whole, the [law's] actual, real- world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.”
Peterson alleged in a previous petition that the CWD Rules are unconstitutionally oppressive but his live petition at the time of the district court's ruling omits that claim. Because Peterson elected not to go forward on that claim in the district court, we decline to address it here.
Bailey, 581 S.W.3d at 394-95 (citing Mosley v. Tex. Health & Human
Servs. Cmm’n, 593 S.W.3d 250, 264-65 (Tex. 2019), stating that
“[i]ncluded among the protected liberty interests is the right ‘to engage
in any of the common occupations of life.’”). Simply put, TPWD’s silence
on Young’s due process and takings claims as to his non-breeder deer
private property, all pleaded for in this case, speaks volumes.
III. THE TRIAL COURT ERRED IN FAILING TO AFFORD YOUNG THE RIGHT TO REPLEAD
When Young filed suit, TPWD, along with Co-Defendant TAHC,
filed pleas to the jurisdiction. (CR144). The day before the jurisdictional
plea hearing was held, Young expanded upon his Original Petition,
14 (CR6), by filing his Amended Original Petition. (CR162). This caused Co-
Defendant TAHC, not a party to this appeal, to seek and receive a
continuance of its jurisdictional plea.6 TPWD took a different approach,
abandoning the right to file Special Exceptions and demanding to be
heard immediately.
A. Young’s Amended Petition, filed the night before the jurisdictional plea hearing, raised broad-based takings & due process claims.
Regretting its eagerness to “be done” with Young and his demand
for compliance with the Texas and federal constitutional, TPWD now
hopes to backtrack, somewhat contending Young failed to plead certain
non-breeder deer claims, but this argument that is belied by the record.
(CR162). Within Young’s Amended Petition, he alleges that his breeder
deer, land, improvements, small business, and permit rights have been
unconstitutionally taken without just compensation or due process.7
6 TAHC: “I am here representing the Texas Animal Health Commission. We do have a plea to the jurisdiction set for hearing today. But because of the amended petition that we received at 4:37 yesterday afternoon, I've gone through that very carefully to be able to discern whether or not I can proceed on my plea. Mr. Mosty has done a good job of saying Defendant's actions caused these effects. And so I am not in a position where I can proceed on my plea today without things being very confusing. And so I will need to amend my plea, if necessary, and set another hearing for that.” (RR6-7). 7 Young’s Amended Petition goes into great detail as to the type of claims he makes and the basis of them: “Mr. Young contends that Defendants’ conduct constitutes a constitutional violation of the due process rights, both substantive and procedural, as afforded Mr. Young under the Federal and State Constitutions,” citing “the Due 15 (CR163-68).
His Amended Petition describes the personal and real property in
detail: “The ranch depends on approximately $200,000 in annual income
from whitetail deer sales to operate.” (CR167). “The value of these deer
is approximately $175,000, and Mr. Young will receive nothing in
addition to losing the irreplaceable genetic base that the deer herd
represents.” (CR168). Young’s Amended Petition also incorporates by
reference the expert report of Macy Ledbetter, a “highly respected game
biologist attesting to the irreplaceable nature of the deer herd.” (CR168).
His Amended Petition also explains how his due process rights
(procedural and substantive) and right to just compensation have been
violated: “The actions of the Defendants amount to a taking or inverse
Process Clause of the Fourteenth Amendment, no state may deprive any person of life, liberty, or property, without due process of law” and stating “Defendants have violated Mr. Young’s state and federal due process guarantees”; “Mr. Young has property rights in personal and real property located on his ranch”; “The actions of the Defendants amount to a taking or inverse condemnation, in violation of the Federal and State Constitutions. The actions of Defendants’ amount to an unlawful taking of Mr. Young’s real and personal property in violation of Mr. Young’s constitutional rights under Texas Constitution Article I, Section 19 and as also protected under the Fifth Amendment of the United States Constitution,” (CR163); “Mr. Young contends that Defendants’ conduct constitutes an unconstitutional violation of the due process rights, both substantive and procedural, as afforded Mr. Young under the Federal and State Constitutions. Defendants intend to kill all of Mr. Young’s deer and impose restrictions on Mr. Young’s land without providing any due process protections [tracking chronology of TPWD/TAHC actions from September 13, 2022 to March 18, 2024],” (CR167-69); 16 condemnation of Mr. Young’s real and personal property, in violation of
both Federal and State Constitutions,” and describes the impacted land,
improvements, and personal and real property in detail:
“Mr. Young’s current ranch is high-fenced and consists of
approximately 1500 acres. Within the confines of the ranch are two
permitted breeding facilities, one of which is approximately 17.68 acres,
and the other is approximately 12.23 acres. The breeding facilities are
entirely high fenced within the confines of the main ranch, and do not
share a fence with any adjoining properties. The breeding facilities
contain smaller pens within the facilities which are used to sort and
separate deer for breeding and other reasons. All the whitetail deer in
the breeding facilities can be individually identified. The whitetail in the
facilities are entirely confined, and rely entirely on Mr. Young for food,
water, and care.” (CR166-67).
Young’s Amended Petition also explains: “As is fitting for a power-
hungry government entity, TPWD is borderline boastful about the fact
that it does not have to prove anything to slaughter the deer, while
remaining righteously indignant that anyone would have the audacity to
request an opportunity to question their unilateral decision.” (CR169).
17 Young then breaks down some of the more troubling conduct: “Through
the concerted efforts of TAHC and TPWD, Mr. Young has not been
afforded an opportunity to be head on the decision to slaughter his entire
unique deer herd. Defendants do not provide any opportunity to
challenge its unilateral decision or even the validity of the CWD test
results,” (CR169-70).
Young’s Amended Petition put TPWD on notice that: “Texas law
guarantees that the right to bring well-established common law causes
of action cannot be effectively abrogated by the legislature absent a
showing that the legislative basis for the statute outweighs the denial of
the constitutionally guaranteed right of redress. This provision
guarantees that the legislature may not abolish a well-established
common law cause of action for injuries done to one’s “lands, goods,
person or reputation” without providing a “reasonable substitute.”
(CR170).
Young’s Amended Petition notified TPWD of his complaint:
“Defendants violated Mr. Young’s substantive due process by arbitrarily
exercising their powers. Moreover, procedural due process requires that
before an individual can be deprived of a property right, whether real or
18 personal, the government must afford an appropriate and meaningful
opportunity to be heard.” (CR171) (citations omitted). He goes further,
stating, “Mr. Young’s personal and real property is entitled to procedural
due process protection, but the required process due was denied.”
(CR171).
Young’s Amended Petition explains: “Mr. Young is entitled to due
process protection because the deer breeder license provides Mr. Young
the right to hold in captivity, breed and sell whitetail deer. The fact that
Mr. Young’s right to breed deer is ‘possessory’ in nature, as opposed to
the ownership of title to the deer, however, does not change the fact that
Mr. Young is entitled to due process. A bailment or leasehold interest is
still an interest in property,” (CR171) (citations omitted). He also notified
TPWD that “[p]roperty rights are created and defined in part by state
law. The term ‘property right’ refers to any type of right to specific
property, including tangible, personal property. A right is ‘vested’ when
it ‘has some definitive, rather than merely potential existence.’” (CR171-
72) (citations omitted).
Young’s Amended Petition predicted TPWD’s reliance on Bailey,
but notified TPWD: “[P]roperty for purposes of due process is not limited
19 to real or personal property – it can include rights conferred by a license
or privilege. Whitetail deer, whether free-ranging or captive-bred, legally
are deemed wild game, held in trust for the public, subject to TPWD’s
jurisdiction. . . however, [t]he Bailey court noted ‘[t]hat 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.” (CR172) (citations omitted). He
also pleaded: “A deer breeder’s permit confers specific statutory rights. .
. [to] engage in the business of breeding breeder deer in the immediate
locality. . . and sell, transfer to another person, or hold in captivity live
breeder deer for the purpose of propagation or sale. . . . [Young] is not
required to have the release site inspected or approved before the release
of a breeder deer from a breeding facility.” (CR172-73).
Young’s Amended Petition spelled out: “Rick Young has a
recognized property right in his whitetail deer. These are rights that are
entitled to due process protection. In addition to not being able to
challenge the Kill Order, the Kill Order itself imposes restrictions that
are beyond those permitted by the statute. Those also cannot be
challenged. We are now more than a year and a half away from the initial
20 quarantine order, so there can be no logical argument that these deer
now need to be killed in a matter of days. It is readily apparent that the
only reason to kill these deer without a hearing is to silence any challenge
by Richard M. Young.” (CR173). Also, “[t]he actions taken and threatened
actions in the Kill Order of entering onto Mr. Young’s real property is a
taking of the real and personal property. The Kill Order signed by
Director Silovsky amounts to a taking of at least a portion of Mr. Young’s
possessions, i.e., his personal and real property. The Kill Order further
exceeds the authority permitted by statute and amounts to a taking of
Mr. Young’s rights pursuant to his breeder permits. The requirements
imposed by the governmental action has precluded Mr. Young’s ability to
use its personal and real property in a manner allowed under Texas and
federal law and has been restricted by the laws, orders, mandates of state
and federal laws. In addition, the actions of Defendants place a stigma
on the value of the personal and real property, which will amount to at a
minimum, a taking of Mr. Young’s land (personal and real) without
compensation as required by the Federal and State constitutions.”
(CR174).
Young’s Amended Petition outlined: “Defendants knew that its
21 conduct, described in this petition, did or is substantially certain to cause
identifiable harm to Mr. Young’s personal and real property, including
but not limited to Mr. Young’s animals, ranch equipment, ranch land,
permit, and other personal and real property.”8 Although bordering on
repetition, Young’s Amended Petition made sure to delineate that
“Defendants’ conduct was affirmative and intentional toward Mr.
Young’s personal and real property, resulting in the intentional taking
and damaging of Mr. Young’s personal and real property for public good
or use or, alternatively, Defendants’ conduct was affirmative and
intentional so that the damage or taking of Mr. Young’s personal and real
property was substantially certain to occur. Defendants knew damage
was substantially certain to occur to Mr. Young’s personal and real
property as a result of their conduct,” (CR176).
8 (CR174-75) (citations omitted). “Defendants’ conduct, detailed in the factual background/section, constitutes a taking in violation of the Federal and State Constitutions. An inverse condemnation action is a constitutional claim in which the property owner, Mr. Young here, asserts that an entity with eminent-domain power, Defendants here, intentionally performed acts that resulted in a ‘taking’ of the property for public use, without formally condemning the property. When ‘the government takes private property without first paying for it, the owner may recover damages for inverse condemnation. A claimant seeking recovery for inverse condemnation, Mr. Young here, will show Defendants intentionally took and/or damaged Mr. Young’s personal and real property for public use and/or that Defendants’ conduct made substantially certain that a ‘taking’ would occur to either personal or real property or both.” Id. 22 B. TPWD abandoned its right to file Special Exceptions & demanded an immediate hearing on its jurisdictional challenge.
Despite the plethora of allegations outlined below, which were
verified by Young, as then Plaintiff and now Appellant, TPWD
abandoned the opportunity to seek Special Exceptions and perhaps
“narrow down” the breadth of Young’s far-reaching Amended Petition.9
This legal strategy required the trial court (and now this Court) to
liberally construe the allegations in favor of Young. Id. Furthermore,
TPWD’s decision to pursue a non-evidentiary jurisdictional plea (and to
have the newly-pleaded and broad claims heard immediately) required
the trial court (and now this Court) to take as true all of Young’s
allegations.10 The record shows TPWD, represented by “opposing
attorneys of reasonable competence,” were put on notice of Young’s
claims of the taking of his breeder deer, ranch land, improvements, small
9 When special exceptions are not filed, courts must construe the live petition liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). 10 In non-evidentiary jurisdictional pleas, this Court must accept as true all pleaded factual allegations and then determine if the allegations confer jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Additionally, reviewing courts must construe the pleadings liberally in the plaintiff's favor and look to the plaintiff's intent. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 23 business, and permit rights without due process or just compensation.11
C. If in doubt, Young should be given the opportunity to replead.
The Supreme Court of Texas has made clear that appeals should be
decided based on substance as opposed to form. Thus, courts generally
allow parties to replead during immunity-based jurisdictional challenges
unless their pleadings demonstrate incurable defects. Tex. Dep't of
Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (“When this Court
upholds a plea to the jurisdiction on sovereign immunity grounds, we
allow the plaintiff the opportunity to replead if the defect can be cured”);
City of Waco v. Kirwan, 298 S.W.3d 621, 622 (Tex. 2009) (“The allegations
found in the pleadings may either affirmatively demonstrate or negate
the court's jurisdiction. If the pleadings do neither, it is an issue of
pleading sufficiency and the plaintiff should be given an opportunity to
amend the pleadings.” (citations omitted)); Miranda, 133 S.W.3d at 226–
A pleading should contain “a short statement of the cause of action sufficient to give 11
fair notice of the claim involved ....” TEX. R. CIV. P. 47(a). “We will uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged.” The Huff Energy Fund, LP v. Longview Energy Co., 482 S.W.3d 184, 195 (Tex. App.—San Antonio 2015), aff'd sub nom. Longview Energy Co. v. Huff Energy Fund LP, 533 S.W.3d 866 (Tex. 2017). “In determining whether a pleading is adequate, we examine whether an opposing attorney of reasonable competence, on review of the pleadings, can ascertain the nature and the basic issues of the controversy.” Id. (emphasis added). 24 27 (“If the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court[‘]s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiffs should be afforded the opportunity to
amend.”).
If there is doubt, which Young contends there is not, as to the
waiver of immunity for Young’s claims, this Court should comply with
long-standing precedent from the Supreme Court of Texas and remand
to afford Young an opportunity to replead.
CONCLUSION & PRAYER
Young’s allegations, when taken as true as required by the non-
evidentiary plea to the jurisdiction filed by TPWD, demonstrate TPWD
and Silovsky are not immune. This Court should reverse the dismissal
order and remand the case for further proceedings. Alternatively, this
Court should afford Young a chance to replead. Young also requests any
relief to which he is entitled under law and equity.
25 Respectfully submitted,
Kimberly S. Keller KELLER STOLARCZYK PLLC 215 W. Bandera Road No. 114-PMB 800 Boerne, Texas 78006 Tele: 830.981.5000 /s/Kimberly S. Keller Kimberly S. Keller SBN: 24014182 Email: kim@kellsto.com
APPELLANT’S COUNSEL
26 CERTIFICATE OF COMPLIANCE & SERVICE
I certify this Brief on the Merits contains 4,900 words. On March
10, 2025, I served, through this Court’s e-filing server, a copy of this Brief
on the Merits on those listed below:
Counsel for Appellees:
KEN PAXTON, Attorney General of Texas; BRENT WEBSTER, First Asst. Attorney General; JAMES LLOYD, Deputy Attorney General for Civil Litigation; KELLIE E. BILLINGS-RAY, Chief, Environmental Protection Division, OFFICE OF THE ATTORNEY GENERAL, Environmental Protection Division, P.O. Box 12548, MC066, Austin, Texas 78711-2548
IAN LANCASTER, Asst. Attorney General, Email: ian.lancaster@oag.texas.gov
H. CARL MYERS, Asst. Attorney General, Email: carl.myers@oag.texas.gov
HEATHER COFFEE, Asst. Attorney General, Email: heather.coffee@oag.texas.gov
Counsel for Texas Animal Health Commission:
KAREN L. WATKINS, Asst. Attorney General, Administrative Law Division, Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711, Email: karen.watkins@oag.texas.gov
/s/Kimberly S. Keller Kimberly S. Keller
27 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Kimberly Keller on behalf of Kimberly Keller Bar No. 24014182 kim@kellsto.com Envelope ID: 98292402 Filing Code Description: Response Filing Description: Appellant's Reply Brief Status as of 3/11/2025 7:06 AM CST
Associated Case Party: State Of Texas
Name BarNumber Email TimestampSubmitted Status
Kellie E.Billings-Ray Kellie.Billings-Ray@oag.texas.gov 3/10/2025 11:41:38 PM SENT
Ian Lancaster ian.lancaster@oag.texas.gov 3/10/2025 11:41:38 PM SENT
Laura Courtney laura.courtney@oag.texas.gov 3/10/2025 11:41:38 PM SENT
H. CarlMyers Carl.Myers@oag.texas.gov 3/10/2025 11:41:38 PM SENT
James ScottMcCarley scott.mccarley@oag.texas.gov 3/10/2025 11:41:38 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Karen LWatkins karen.watkins@oag.texas.gov 3/10/2025 11:41:38 PM SENT
C DixonMosty cdmosty@mostylaw.com 3/10/2025 11:41:38 PM SENT
Richard Mosty rmosty@mostylaw.com 3/10/2025 11:41:38 PM SENT
Jennifer SRiggs jriggs@r-alaw.com 3/10/2025 11:41:38 PM SENT
Kimberly SKeller kim@kellsto.com 3/10/2025 11:41:38 PM SENT
Clayton CUtkov cutkov@andrewsmyers.com 3/10/2025 11:41:38 PM SENT