RW Trophy Ranch, Ltd. And Robert Williams v. Texas Animal Health Commission Andy Schwartz, DVM, Executive Director And Texas Parks & Wildlife Department

Affirmed and Memorandum Opinion filed January 18, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00242-CV

RW TROPHY RANCH, LTD. AND ROBERT WILLIAMS, Appellants

V.
TEXAS ANIMAL HEALTH COMMISSION; ANDY SCHWARTZ, DVM,
EXECUTIVE DIRECTOR; AND TEXAS PARKS & WILDLIFE
DEPARTMENT, Appellees

On Appeal from the 345th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-22-000039

MEMORANDUM OPINION

This appeal arises from certain administrative agency actions taken to stop
the spread of chronic wasting disease among white-tailed deer bred and owned by
appellants RW Trophy Ranch, Ltd. and Robert Williams (together, “RW Trophy”).
After these administrative actions were implemented, RW Trophy sued the Texas
Animal Health Commission (“TAHC”), the TAHC executive director Andy
Schwartz, and the Texas Parks and Wildlife Department (“TPWD”), challenging
certain agency rules and seeking a petition for writ of mandamus. The trial court
granted the TAHC’S and Schwartz’s plea to the jurisdiction and the agencies’
summary judgment motions; RW Trophy filed this appeal. For the reasons below,
we affirm.

BACKGROUND

RW Trophy Ranch is a deer breeding enterprise in northeast Texas
consisting of a 68-acre breeding facility surrounded by a 1,500-acre ranch.

Until the events described below, RW Trophy was certified under the
TAHC’s Texas Chronic Wasting Disease Herd Certification Program (the “Herd
Certification Program”). See Chronic Wasting Disease Herd Certification
Program, Texas Animal Health Commission, https://www.tahc.texas.gov/news/
brochures/TAHCBrochure_CWD-HCP-Compliance.pdf (last accessed January 9,
2024). The Herd Certification Program is a cooperative effort between the TAHC,
the United States Department of Agriculture-Animal and Plant Health Inspection
Service, and farmed cervid1 producers. Id. The goal of the program is to provide a
consistent national approach to control the incidence of chronic wasting disease
(“CWD”) in farmed cervids and prevent the disease’s spread. Id.

CWD is a progressive neurodegenerative disease that affects cervid species,
including deer, elk, reindeer, and moose. See Chronic Wasting Disease, Centers
for Disease Control and Prevention, https://www.cdc.gov/prions/cwd/index.html
(last accessed January 9, 2024). Symptoms include “drastic weight loss (wasting),
stumbling, listlessness and other neurologic symptoms.” Id. CWD is fatal to
animals and there are no treatments or vaccines. Id.

In February 2021, three white-tailed deer in RW Trophy’s breeding pens
1
A “cervid” is a mammal in the deer family. See Cervid, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/cervid (last accessed January 9, 2024).

2
died of pneumonia. In accordance with the terms of the Herd Certification
Program, RW Trophy tested the deer for CWD. One deer tested positive.

The TAHC issued a Hold Order in May 2021, instructing RW Trophy to
restrict the movement of “all CWD susceptible species on the premises” pending
the determination of disease status. In June 2021, the TAHC issued a Quarantine
Order, instructing RW Trophy that all CWD-susceptible species were to be
confined to the premises until the quarantine was released.

In August 2021, RW Trophy ante-mortem tested 49 bucks that it sought to
release in advance of the upcoming hunting season. RW Trophy requested
approval from the TAHC to release the bucks to the release site contiguous to the
breeding facility. The TAHC responded that RW Trophy first must agree to a herd
plan before any release from the breeding facility would be permitted.

RW Trophy received two proposed herd plans, one for its breeding facility
and one for the release site. The breeding facility herd plan included a statement
that RW Trophy’s “herd certification status was lost upon the Facility being
designated as a CWD positive herd.” Both herd plans included a list of required
actions, including that all RW Trophy’s white-tailed deer be euthanized.

RW Trophy filed an “Appeal Notice for Cancellation or Suspension of CWD
Herd Program Enrollment or Status.” The Appeal Notice states:

In accordance with Texas Administrative Code, Title 4, Part 2, §40.3,
a Facility Owner may appeal the cancellation of enrollment of a herd,
or loss or suspension of herd status. The Facility Owner must request
a meeting, in writing, with the Executive Director of the Commission
within 15 days of receipt of the action and set forth a short, plain
statement of the issues that shall be the subject of the meeting. The
appeal must include all the facts and reasons upon which Facility
Owner relies to show that the reasons for the action are incorrect or do
not support the action.

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A meeting will be set by the Executive Director no later than 21 days
from receipt of the request. The meeting will be held in Austin, and
the Executive Director will render the decision in writing within 14
days from the date of the meeting.
If the Facility Owner wishes to appeal the decision or order by the
Executive Director, the Facility Owner may file a written appeal
within 15 days with the Chairman of the Commission and provide a
short, plain statement of the issues that shall be the subject of the
appeal.
A subsequent hearing will be conducted pursuant to the provisions of
the Texas Administrative Procedure Act and Texas Administrative
Code, Title 4, Part 2, Chapter 32.
On the Appeal Notice, Williams hand-wrote “I object [to] the herd plan as is” and
further stated that he “wish[es] to discuss the 49 bucks with non-detect rectal
biopsies. I want to be able to release them by no later than September 20, 2021.”

The TAHC convened a telephonic meeting with RW Trophy on September
17, 2021. The TAHC did not issue a written decision following the meeting nor
did it hold a contested case or other evidentiary hearing.

RW Trophy filed suit in the Travis County district court in January 2022. In
its original petition, RW Trophy requested a writ of mandamus compelling the
TAHC executive director Andy Schwartz to provide it with a contested case
hearing under the Administrative Procedure Act. RW Trophy also sought a
declaration that certain administrative rules exceeded the TAHC’s and the
TPWD’s statutory authority.

The TAHC and Schwartz filed a plea to the jurisdiction requesting the
dismissal of RW Trophy’s mandamus claims. The trial court granted the plea in an
order signed September 28, 2022.

The TAHC and the TPWD filed individual motions for summary judgment
with respect to RW Trophy’s rule challenges. RW Trophy responded and filed a
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cross-motion for summary judgment on its claims. In an order signed March 1,
2023, the trial court (1) granted the TAHC’s and the TPWD’s summary judgment
motions, and (2) denied RW Trophy’s cross-motion. RW Trophy timely appealed
and the appeal was transferred to our court. 2

ANALYSIS

RW Trophy raises two issues on appeal:

1. the trial court erred in granting in the TAHC’s and Schwartz’s plea to
the jurisdiction; and
2. the trial court erred in granting the TAHC’s and the TPWD’s
summary judgment motions and denying RW Trophy’s cross-motion.

We address these issues below.

I. Plea to the Jurisdiction

Citing 4 Texas Administrative Code section 40.3, RW Trophy argues that
Schwartz had a mandatory duty to issue a written decision following the parties’
September 2021 telephonic conference. See 4 Tex. Admin. Code § 40.3(h)(2)(c),
(h)(4) (2013) (Tex. Animal Health Comm’n, Chronic Wasting Disease), repealed
by 46 Tex. Reg. 6905, 6905 (2021).3 Schwartz’s failure to provide a written
decision, RW Trophy contends, denied it the ability to pursue a contested case
hearing before the State Office of Administrative Hearings with respect to the
cancellation of its status under the Herd Certification Program. See id.

2
The Supreme Court of Texas transferred this case from the Third Court of Appeals. See
Tex. Gov’t Code Ann. § 73.001. In cases transferred by the high court from one court of appeals
to another, the transferee court must decide the case in accordance with the precedent of the
transferor court under principles of stare decisis if the transferee court’s decision otherwise
would have been inconsistent with the precedent of the transferor court. See Tex. R. App. P.
41.3.
3
We cite to the version of the administrative rule in effect when RW Trophy filed its
Appeal Notice and the parties had a telephonic conference.

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RW Trophy sought mandamus relief on this basis in the trial court. The
TAHC and Schwartz responded with a plea to the jurisdiction, asserting that RW
Trophy failed to make the showing necessary to warrant mandamus relief. The
trial court granted the plea to the jurisdiction and RW Trophy challenges this ruling
on appeal.

Subject matter jurisdiction can be challenged by a plea to the jurisdiction,
and we review de novo the trial court’s ruling on the plea. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Eshelman v. True the
Vote, Inc., 655 S.W.3d 493, 497-98 (Tex. App.—Houston [14th Dist.] 2022, no
pet.). Where, as here, a jurisdictional challenge implicates the merits of the
plaintiff’s cause of action and the plea includes evidence, the trial court reviews the
relevant evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227;
see also Tex. Dep’t of Crim. Just. v. Cooke, 149 S.W.3d 700, 704 (Tex. App.—
Austin 2004, no pet.). If the evidence creates a fact issue, then it must be resolved
by the factfinder; but if the evidence is undisputed or fails to raise an issue of fact
on the jurisdictional question, the trial court may rule on the plea as a matter of
law. Cooke, 149 S.W.3d at 704-05.

Sovereign immunity protects the State of Texas and its agencies from suit
and liability and thus is properly asserted in a plea to the jurisdiction. Matzen v.
McLane, 659 S.W.3d 381, 387-88 (Tex. 2021); Miranda, 133 S.W.3d at 225-26.
However, “[u]nder Texas law, suits to require state officials to comply with
statutory or constitutional provisions are not prohibited by sovereign immunity,
even if a declaration to that effect compels the payment of money.” Shamrock
Psychiatric Clinic, P.A. v. Tex. Dep’t of Health & Human Servs., 540 S.W.3d 553,
560 (Tex. 2018) (per curiam) (internal quotation omitted). To fall within this ultra
vires exception, the plaintiff’s suit must allege and prove that the state officer acted

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without legal authority or failed to perform a purely ministerial act. Id. Immunity
is not waived when a plaintiff merely complains of an officer’s exercise of
discretion. Id.

“An act is ministerial when the law clearly spells out the duty to be
performed by the official with sufficient certainty that nothing is left to the exercise
of discretion.” Hawkins v. Cmty. Health Choice, Inc., 127 S.W.3d 322, 326 (Tex.
App.—Austin 2004, no pet.) (internal quotation omitted). In addition to the clear
legal duty to perform a nondiscretionary act, the issuance of mandamus relief also
requires a demand for performance and a subsequent refusal. Id.

Here, our analysis of RW Trophy’s request for mandamus relief requires
interpretation of an administrative rule. See 4 Tex. Admin. Code § 40.3(h) (2013)
(Tex. Animal Health Comm’n, Chronic Wasting Disease), repealed by 46 Tex.
Reg. 6905, 6905 (2021). We construe the text of an administrative rule de novo
and under the same principles as if it were a statute. Combs v. Chapal Zenray,
Inc., 357 S.W.3d 751, 755 (Tex. App.—Austin 2011, pet. denied); Phillips
Petroleum Co. v. Tex. Comm’n on Env’t Quality, 121 S.W.3d 502, 507 (Tex.
App.—Austin 2003, no pet.). Our primary objective is to give effect to the
legislature’s intent, using any definitions prescribed by the legislature and
considering any technical or particular meanings the words have acquired. Combs,
357 S.W.3d at 755. Absent the provision of a legislative definition, we rely on the
text’s plain meaning unless a different meaning is apparent from the context or
application of the literal language would lead to absurd results. Id. at 755-56.

In addition to these rules of construction, we must “bear in mind that an
administrative agency has the power to interpret its own rules, and its interpretation
is entitled to great weight and deference.” Id. Accordingly, the agency’s
interpretation of its own rule is controlling unless it is plainly erroneous or

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inconsistent — a principle particularly true “when the rule involves complex
subject matter.” Id.

The applicable version of Rule 40.3(h) provides, in relevant part, as follows:

(h) Cancellation or suspension of enrollment by the Executive
Director. The Executive Director may cancel or suspend enrollment
[in the Herd Certification Program] after determining that the herd
owner failed to comply with any requirements of this chapter. Before
enrollment is cancelled or suspended, notification will be provided
which will inform the herd owner of the reasons for the action.

(1) The herd owner may appeal the cancellation of
enrollment of a herd, or loss or suspension of herd status, by
writing to the Executive Director within 15 days after receipt
of the action. The appeal must include all of the facts and
reasons upon which the herd owner relies upon to show that
the reasons for the action are incorrect or do not support the
action.
(2) The herd owner may request a meeting, in writing, with the
Executive Director of the Commission within 15 days of receipt
of the action and set forth a short, plain statement of the issues
that shall be the subject of the meeting, after which:

(A) the meeting will be set by the Executive Director no
later than 21 days from receipt of the request for a
meeting;
(B) the meeting or meetings shall be held in Austin; and
(C) the Executive Director shall render his decision in
writing within 14 days from the date of the meeting.

(3) Upon receipt of a decision or order by the Executive
Director which the herd owner wishes to appeal, the herd
owner may file an appeal within 15 days in writing with the
Chairman of the Commission and set forth a short, plain
statement of the issues that shall be the subject of the appeal.
(4) The subsequent hearing will be conducted pursuant to the

8
provisions of the Administrative Procedure Act and Texas
Register Act and Chapter 32 of this title (relating to Hearing
and Appeal Procedures).

See 4 Tex. Admin. Code § 40.3(h)(4) (2013) (Tex. Animal Health Comm’n,
Chronic Wasting Disease), repealed by 46 Tex. Reg. 6905, 6905 (2021) (emphasis
added).

According to RW Trophy, receipt of the breeding facility herd plan was its
first notification that its status under the Herd Certification Program was cancelled.
RW Trophy filed an Appeal Notice and the TAHC convened a telephonic meeting
on September 17, 2021. Asserting that executive director Schwartz failed to
perform his mandatory duty to “render a written decision within 14 days from the
date” of this meeting, RW Trophy contends that Schwartz improperly foreclosed
its ability to pursue an administrative hearing under the Administrative Procedure
Act. See 4 Tex. Admin. Code § 40.3(h)(2)(C), (h)(4) (2013) (Tex. Animal Health
Comm’n, Chronic Wasting Disease), repealed by 46 Tex. Reg. 6905, 6905 (2021).

We disagree these circumstances entitle RW Trophy to mandamus relief.
Specifically, these allegations and the accompanying evidence, interpreted in
conjunction with Rule 40.3, do not show that Schwartz failed to perform a purely
ministerial act. See Shamrock Psychiatric Clinic, P.A., 540 S.W.3d at 560.

Rule 40.3(h) provides an appeal’s process for a herd owner “appeal[ing] the
cancellation of enrollment of a herd, or loss or suspension of herd status.” 4 Tex.
Admin. Code § 40.3(h)(1) (2013) (Tex. Animal Health Comm’n, Chronic Wasting
Disease), repealed by 46 Tex. Reg. 6905, 6905 (2021). As part of this process, the
herd owner must include in its appeal “all of the facts and reasons upon which the
herd owner relies to show that the reasons for the action are incorrect or do not
support the action.” Id.

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Here, the breeding facility herd plan stated as follows with respect to the
cancellation of RW Trophy’s status under the TAHC Herd Certification Program:

[RW Trophy] participates in the TAHC Herd Certification Program
and, therefore, collected the above CWD sample in accordance with
the TAHC Herd Certification Program. The sample was submitted for
testing in March 2021. Trophy Ranch had attained fourth year status
in the TAHC Herd Certification Program. That herd certification
status was lost upon the Facility being designated a CWD positive
herd.

Following receipt of the breeding facility herd plan, RW Trophy filed an Appeal
Notice with the TAHC. Williams wrote on the Notice: “I object to the herd plan
as is.” In the portion of the Notice entitled “Statement of Issues Subject to
Appeal,” Williams wrote: “First, I Robert Williams, wish to discuss the 49 bucks
with non-detect rectal biopsies. I want to be able to release them by no later than
September 20, 2021.”

By these statements in its Appeal Notice, RW Trophy indicated that it was
not seeking to appeal the cancellation of its status under the Herd Certification
Program or the specific reason given for the cancellation (i.e., the sample that
tested positive for CWD). Rather, RW Trophy stated that it sought to discuss a
separate issue regarding the release of 49 bucks with non-detect rectal biopsies.
Therefore, because the substance of RW Trophy’s appeal was not the cancellation
of its status under the Herd Certification Program, it was not proceeding under
Rule 40.3(h)’s framework — which is tailored specifically to address this issue.
See 4 Tex. Admin. Code § 40.3(h)(1) (2013) (Tex. Animal Health Comm’n,
Chronic Wasting Disease), repealed by 46 Tex. Reg. 6905, 6905 (2021).
Accordingly, RW Trophy cannot rely on this rule (or its requirement that the
executive director issue a written decision) to support its claim for mandamus
relief because its argument does not show that executive director Schwartz failed

10
to perform a ministerial act. See Shamrock Psychiatric Clinic, P.A., 540 S.W.3d at
560.

We overrule RW Trophy’s first issue challenging the trial court’s order
granting the TAHC’s and Schwartz’s plea to the jurisdiction.

II. Summary Judgment Motions

The TAHC, the TPWD, and RW Trophy filed individual summary judgment
motions with respect to RW Trophy’s rule challenges. In its second issue on
appeal, RW Trophy asserts the trial court erred in granting the TAHC’s and the
TPWD’s summary judgment motions and in denying its motion. RW Trophy
raises four arguments as part of this issue, which we address individually.

But first, the applicable standard of review. When parties file cross-motions
for summary judgment on overlapping issues and the trial court grants one motion
and denies the other, we review the summary judgment evidence supporting both
motions and determine all questions presented. Great-W. Life & Annuity Ins. Co.
v. Tex. Att’y Gen. Child Support Div., 331 S.W.3d 884, 892 (Tex. App.—Austin
2011, pet. denied). Summary judgment is proper when there are no disputed issues
of material fact and the movant is entitled to judgment as a matter of law. Tex. R.
Civ. P. 166a(c). When reviewing a summary judgment, we take as true all
evidence favorable to the non-movant and indulge every reasonable inference and
resolve any doubts in the non-movant’s favor. Great-W. Life & Annuity Ins. Co.,
331 S.W.3d at 892.

Moreover, we analyze RW Trophy’s arguments in light of the rules of
interpretation set out above with respect to administrative rules. See Combs, 357
S.W.3d at 755; Phillips Petroleum Co., 121 S.W.3d at 507. Generally, the party
challenging an agency rule must show that the rule (1) contravenes specific

11
statutory language, (2) runs counter to the general objectives of the statute, or
(3) imposes additional burdens, conditions, or restrictions in excess of or
inconsistent with the relevant statutory provisions. Tex. State Bd. of Exam’rs of
Marriage & Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017).
This standard requires the challenging party to “show that the rule’s provisions are
not in harmony with the general objectives of the act involved.” Id. (internal
quotation omitted).

A. “TAHC statutory authority is over livestock.”

Asserting the TAHC’s authority is limited to livestock, RW Trophy’s first
argument focuses on several provisions in the Texas Agriculture Code. Before
summarizing these contentions, we begin with a legal precept that forms their
basis: white-tailed deer, like those involved here, are considered “wildlife” under
Texas law. See Bailey v. Smith, 581 S.W.3d 374, 390-93 (Tex. App.—Austin
2019, pet. denied). White-tailed deer are not included in the Texas Agriculture
Code’s definition of “animal” or “livestock.” See Tex. Agric. Code Ann.
§ 161.001(1) (“‘Animal’ includes livestock, exotic livestock, domestic fowl, and
exotic fowl.”), (4) (“‘Exotic livestock’ means grass-eating or plant-eating, single
hooved or cloven-hooved mammals that are not indigenous to this state and are
known as ungulates . . . .”).

Pointing to Rule 40.2, RW Trophy asserts the rule permits the TAHC to take
certain actions that exceed its statutory authority, including:

• ordering that CWD-positive herds be restricted by quarantine until the
herd meets all herd plan requirements (see 4 Tex. Admin. Code
§ 40.2(a)(3) (2013) (Tex. Animal Health Comm’n, Chronic Wasting
Disease), repealed by 46 Tex. Reg. 6905, 6905 (2021));
• ordering that herds shall remain under quarantine for five years from
the past exposure to a CWD-positive or a CWD-exposed animal and

12
until such time that all herd plan requirements have been met (see 4
Tex. Admin. Code § 40.2(b)(3) (2013) (Tex. Animal Health Comm’n,
Chronic Wasting Disease), repealed by 46 Tex. Reg. 6905, 6905
(2021)); and
• ordering that the herd plan require that all CWD-exposed and -suspect
animals be euthanized (see 4 Tex. Admin. Code § 40.2(c) (2013)
(Tex. Animal Health Comm’n, Chronic Wasting Disease), repealed
by 46 Tex. Reg. 6905, 6905 (2021)).

RW Trophy cites three sections of the Texas Agriculture Code to argue that these
actions exceed the TAHC’s statutory grant of authority.

First, RW Trophy relies on section 161.064, which states:

A quarantine that is established for any location has the effect of
quarantining all livestock, domestic animals, or domestic fowl of the
kind mentioned in the quarantine notice that are on or enter that
location during the existence of the quarantine, regardless of who
owns or controls the livestock, domestic animals, or domestic fowl.
Tex. Agric. Code Ann. § 161.064 (emphasis added). RW Trophy points out that
white-tailed deer are not included in the definitions of “livestock, domestic
animals, or domestic fowl,” and argues that they therefore fall outside of the
TAHC’s quarantine jurisdiction.

Second, RW Trophy cites section 161.0415, which provides as follows with
respect to animal slaughtering:

The [TAHC] by order may require the slaughter of livestock, domestic
fowl, or exotic fowl, under the direction of the [TAHC] . . . .

Id. § 161.0415(a) (emphasis added). Again, RW Trophy argues that white-tailed
deer, as wildlife, fall outside the types of animals that may be slaughtered pursuant
to an order issued by the TAHC.

Third, RW Trophy relies on section 161.061, which states that the TAHC
may establish a quarantine to prohibit or regulate the movement of “any article or
13
animal that the commission designates to be a carrier of a disease . . . if movement
is not otherwise regulated.” RW Trophy asserts that white-tailed deer fall outside
of this provision because their movement is regulated by the TPWD.

But these arguments ignore the import of section 161.041, entitled “Disease
Control,” which provides:

(a) The [TAHC] shall protect all livestock, exotic livestock,
domestic fowl, and exotic fowl from diseases the commission
determines require control or eradication. . . .
(b) The [TAHC] may act to eradicate or control any disease or
agent of transmission for any disease that effects livestock, exotic
livestock, domestic fowl, or exotic fowl, regardless of whether the
disease is communicable, even if the agent of transmission is an
animal species that is not subject to the jurisdiction of the
commission. The commission may adopt any rules necessary to carry
out the purposes of this subsection, including rules concerning testing,
movement, inspection, and treatment.

Id. § 161.041(a), (b). As our foregoing discussion shows, the TAHC has
promulgated significant administrative rules with respect to CWD, thus indicating
the disease’s status as one the TAHC has “determine[d] require[s] control or
eradication.” See id. § 161.041(a); see also 4 Tex. Admin. Code chap. 40 (entitled
“Chronic Wasting Disease”). Subsection (b) grants the TAHC broad authority to
“control any disease or agent of transmission” by adopting “any rules,” including
rules pertaining to “testing, movement, inspection, and treatment.” Tex. Agric.
Code Ann. § 161.041(b). Moreover, these rules may apply “even if the agent of
transmission is an animal species that is not subject to the jurisdiction of the
commission” — such as wildlife like white-tailed deer. See id. Giving these terms
their plain meanings, they encompass the actions in Rule 40.2 that RW Trophy
seeks to challenge here with respect to herd plans, quarantine, and euthanizing
white-tailed deer. See id.; see also 4 Tex. Admin. Code § 40.2(a)(3), (b)(3), (c)

14
(2013) (Tex. Animal Health Comm’n, Chronic Wasting Disease), repealed by 46
Tex. Reg. 6905, 6905 (2021).

We overrule RW Trophy’s first argument.

B. “No TAHC Authority to Require Herd Plans.”
Rule 40.2 states that CWD-positive and -trace herds are to be restricted until
all herd plan requirements are satisfied. See 4 Tex. Admin. Code § 40.2(a)(2), (3)
(2013) (Tex. Animal Health Comm’n, Chronic Wasting Disease), repealed by 46
Tex. Reg. 6905, 6905 (2021). These herd plan requirements may incorporate
certain federal standards or testing requirements. See id. § 40.2(b)(2).

In its second argument, RW Trophy asserts the TAHC lacks statutory
authority to enforce a federal program in Texas. RW Trophy cites to other statutes
where cooperative agreements with the federal government have been specifically
authorized. See, e.g., Tex. Agric. Code Ann. §§ 162.002 (authorizing a
cooperative program for the eradication of tuberculosis), 163.002 (authorizing
cooperative agreements to control bovine brucellosis).

But we disagree that the lack of a specific authorizing statute renders Rule
40.2’s requirements regarding herd plans void. As discussed above, Texas
Agriculture Code section 161.041 has granted the TAHC broad authority to
“control any disease or agent of transmission” by any means. See Tex. Agric.
Code Ann. § 161.041(b). Herd plans’ requirements with respect to controlling
CWD fall within this grant of authority. Accordingly, this argument fails to show
that Rule 40.2’s provisions regarding herd plans are not in harmony with the
general objectives of the applicable statutory scheme. See Tex. State Bd. of
Exam’rs of Marriage & Fam. Therapists, 511 S.W.3d at 33.

We overrule RW Trophy’s second argument.

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C. “The TAHC lacks the statutory authority to prevent the
release of animals subject to quarantine to contiguous
property under same ownership.”

RW Trophy’s third argument is based on Texas Agriculture Code section
161.054, which states, in relevant part:

The [TAHC] may not adopt a rule that prohibits a person from
moving animals, including feral swine, owned by that person within
unquarantined contiguous lands owned or controlled by that person.

Tex. Agric. Code Ann. § 161.054(c). RW Trophy contends that the TAHC may
not prohibit it from releasing its white-tailed deer from the breeding facility to its
contiguous release site.

We disagree with this reading of section 161.054(c). Section 161.054(c)
says the TAHC may not prohibit animals’ movement within “unquarantined
contiguous lands.” Id. (emphasis added). Giving these terms their plain meaning,
they mean all lands across which movement is planned must be unquarantined.
See id.

But here, the TAHC issued a quarantine order with respect to RW Trophy’s
breeding facility on June 8, 2021. There is no indication in this record that the
quarantine order has been lifted. Therefore, because RW is seeking to move white-
tailed deer from quarantined land to other land, it does not fall within section
161.054(c).

We overrule RW Trophy’s third argument.

D. “The TAHC cannot rely on TPWD rules to avoid section
161.054(c).”

In its final argument, RW Trophy challenges three administrative rules
promulgated by the TPWD. See 31 Tex. Admin. Code §§ 65.83(2), 65.91(d),
65.95(b)(3)(B), (C). RW Trophy raises contentions similar to those addressed
16
above, namely (1) the TAHC lacks the authority to require herd plans, (2) the
TAHC lacks the authority to quarantine white-tailed deer, and (3) section
161.054(c) states that the TAHC may not prohibit animals’ movement across
“unquarantined contiguous lands.”

We overruled these arguments for the reasons discussed above. Likewise,
we conclude they do not warrant relief when read in conjunction with the cited
TPWD administrative rules.

We overrule RW Trophy’s fourth argument. Because we overrule all
arguments raised as part of RW Trophy’s second issue, we overrule the second
issue in its entirety.

CONCLUSION

We affirm the trial court’s (1) September 28, 2022 order granting the
TAHC’s and Schwartz’s plea to the jurisdiction, and (2) March 1, 2023 order
granting the TAHC’s and the TPWD’s summary judgment motions and denying
RW Trophy’s cross-motion.

/s/ Meagan Hassan
Justice

Panel consists of Justices Hassan, Poissant, and Wilson.

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