Opinion
No. 19-0167
06-12-2020
Conway WAAK, Jr. and Marlene Waak d/b/a Carmine Charolais Ranch, and Carmine Charolais Ranch, Petitioners v. 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, et al., Respondents
Stewart Kimball Schmella, Nicholas J. Lanza, Lanza Law Firm, PC, 2502 Algerian Way, Houston, TX 77098, for Petitioners. Richard P. Hogan Jr., Jennifer Bruch Hogan, Hogan & Hogan, Pennzoil Place, 711 Louisiana, Suite 500, Houston, TX 77002, James Christian Marrow, Wright, Close & Barger, LLP, One Riverway, Suite 2200, Houston, TX 77056-1981, John M. Padilla, Padilla & Rodriguez, L.L.P., 5433 Westheimer, Suite 825, Houston, TX 77056, Jose Moises Cedillos, Cedillos Law Firm PLLC, 3801 Kirby Dr., Suite 510, Houston, TX 77098-4159, for Respondents
Stewart Kimball Schmella, Nicholas J. Lanza, Lanza Law Firm, PC, 2502 Algerian Way, Houston, TX 77098, for Petitioners.
Richard P. Hogan Jr., Jennifer Bruch Hogan, Hogan & Hogan, Pennzoil Place, 711 Louisiana, Suite 500, Houston, TX 77002, James Christian Marrow, Wright, Close & Barger, LLP, One Riverway, Suite 2200, Houston, TX 77056-1981, John M. Padilla, Padilla & Rodriguez, L.L.P., 5433 Westheimer, Suite 825, Houston, TX 77056, Jose Moises Cedillos, Cedillos Law Firm PLLC, 3801 Kirby Dr., Suite 510, Houston, TX 77098-4159, for Respondents
Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Guzman, Justice Lehrmann, Justice Devine, and Justice Busby joined.
The Texas Farm Animal Activity Act limits liability for injury to "a participant in a farm animal activity or livestock show" that results from an "inherent risk" of such activities, "whether the person is an amateur or professional or ... pays ... or participates ... for free". A divided court of appeals held that the Act does not apply to ranchers and ranch hands. We agree and affirm the court's judgment.
§ 87.003.
562 S.W.3d 570 (Tex. App.—Houston [1st Dist.] 2018) (2–1).
I
For many years, petitioners Conway and Marlene Waak have bred Charolais cattle on their 760-acre Carmine Charolais Ranch in Fayette County west of Brenham. In 2005, they hired Raul Zuniga part-time to work the cattle, landscape, and cut hay. Three years later, Zuniga began working for the Waaks full-time, living on the ranch in a mobile home he was buying from them.
See Am. Int'l Charolais Ass'n, The Charolais Heritage ... A Brief History , https://charolaisusa.com/history.php (last visited June 8, 2020).
At first, Conway trained Zuniga how to work and cut cattle, observing to see that he did the work properly. Zuniga had no set work schedule; instead, the Waaks gave him various tasks to perform each day. He often worked cattle alone while Conway worked at his oilfield consulting business.
When cattle had to be moved from place to place on the ranch, they were herded into a pen, moved through a chute onto a trailer, hauled to the new location, and unloaded. Conway showed Zuniga what equipment and strategies to use to move the cattle and how to "punch them up"—prod them to move through the chute leading them onto the trailer.
In October 2013, Conway asked Zuniga, 33, to move 20 head of cattle from one end of the ranch to the other, something Zuniga had done many times. The Waaks then left the ranch to run errands in Brenham. After moving most of the cattle, Zuniga called the Waaks to confirm that he should move the last three remaining in the pen in the barn: a 2,000 pound bull, a cow, and the cow's calf. They replied that he should. When the Waaks returned home, they found Zuniga lying dead behind the barn. The bull and the two cows were still in the pen. The medical examiner determined that Zuniga's cause of death was "blunt force and crush injuries" that were "severe enough to have come from extensive force like that of a large animal trampling the body".
Respondents, Zuniga's parents and surviving children, sued the Waaks, nonsubscribers under the Texas Workers' Compensation Act, on wrongful death and survival claims. Plaintiffs allege that the bull killed Zuniga and that the Waaks were negligent in several respects, including failing to provide a safe workplace, failing to train Zuniga and warn him of the dangers of working cattle, and failing to supervise him. The trial court granted summary judgment for the Waaks after concluding that the Farm Animal Activity Act (the Farm Animal Act or the Act ) barred the plaintiffs' claims. The court of appeals reversed, holding that Zuniga "was not a participant in a farm animal activity" for whose injuries and death the Act limits liability.
See Tex. Civ. Prac. & Rem. Code § 71.002(a) (authorizing "[a]n action for actual damages arising from an injury that causes an individual's death"), § 71.021(a)–(b) (authorizing "[a] cause of action for personal injury to the health, reputation, or person of an injured person" by the decedent's "heirs, legal representatives, and estate").
We granted the Waaks' petition for review.
II
The Waaks argue that the Farm Animal Act applies by its plain terms to ranching—working farm animals for a living or for profit.
A
The Farm Animal Act is a somewhat expanded revision of the Equine Activity Act (the Equine Act ) passed in 1995. To interpret the Farm Animal Act, we must first examine its history.
Equine Activity Act, 74th Leg., R.S., ch. 549, 1995 Tex. Gen. Laws 3318 (codified at Tex. Civ. Prac. & Rem. Code ch. 87).
See Pruski v. Garcia , 594 S.W.3d 322, 328 n.2 (Tex. 2020) ("This is the history of the legislation, not legislative history." (quoting Ojo v. Farmers Group, Inc. , 356 S.W.3d 421, 445 n.31 (Tex. 2011) (Willett, J., concurring in part))).
The Equine Act was a product of a national movement spurred by the horse industry to protect itself from liability for injuries due to the inherent risks of being around the animals that reasonable people should expect. Those common expectations had always completely protected horse owners from negligence liability through the absolute common law defenses of contributory negligence and volenti non fit injuria —voluntary assumption of the risk. Those defenses precluded a person from recovering damages for injuries sustained in voluntarily exposing himself to the known risks of being around a horse. But as those absolute defenses were gradually replaced in state after state by comparative negligence, which reduces liability only based on a plaintiff's share in the responsibility for injury, the horse industry's liability, together with the costs of litigation, naturally increased. The industry's proposed fix was a uniform act to be adopted state by state limiting liability for certain horse-related activities. In the five years before Texas enacted its version of the statute, more than 25 states had already beaten us to the punch.
See Krystyna M. Carmel, The Equine Activity Liability Acts: A Discussion of Those in Existence and Suggestions for a Model Act , 83 KY. L.J. 157, 157 (1995) ("[Equine Acts] have arisen in the wake of state legislatures' recognition of the inherent risks associated with equine activities .... [Their] purpose ... is to encourage equine activities by limiting the civil liability of those involved in such activities, in light of the reality that rising insurance costs and increased litigation would put many equine professionals and equine facilities out of business.").
See, e.g. , Farley v. M M Cattle Co. , 529 S.W.2d 751, 758 (Tex. 1975).
See Carmel, supra note 10, at 157 n.2 (listing state statutes).
The Equine Act provided that "any person, including an equine activity sponsor or an equine professional, is not liable for property damage or damages arising from the personal injury or death of a participant ... [that] results from the dangers or conditions that are an inherent risk of equine activity". Included among the statute's list of inherent risks was "the propensity of an equine animal to behave in ways that may result in personal injury or death to a person on or around it", as well as "the unpredictability of an equine animal's reaction to sound, a sudden movement, or an unfamiliar object, person, or other animal".
Equine Act, sec. 87.003, 1995 Tex. Gen. Laws at 3319.
Sec. 87.003(1)–(2), 1995 Tex. Gen. Laws at 3319.
An "equine activity sponsor" shielded from liability was defined in general terms as "a person or group who sponsors, organizes, or provides the facilities for an equine activity ... without regard to whether the person operates for profit", with a list of inclusive examples: "equine facilities for a pony club, 4-H club, hunt club, riding club, therapeutic riding program, or high school or college class, program, or activity". The definition also included "an operator of, instructor at, or promoter for ... facilities ... at which an equine activity is held" but again added an inclusive list of examples of the facilities intended: "a stable, clubhouse, pony ride string, fair, or arena". A "participant", whose recovery was limited by the Act, was defined as "a person who engages in an equine 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."
Sec. 87.001(4)(A), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(4)(B), 1995 Tex. Gen. Laws at 3319.
Sec. 87.001(6), 1995 Tex. Gen. Laws at 3319.
"Equine activity" was defined as including:
• "an equine animal show, fair, competition, performance, or parade" involving "any equine discipline, including dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, driving, pulling, cutting, polo, steeplechasing, English and Western performance riding, endurance trail riding and Western games, and hunting";
• "rodeos and single event competitions, including team roping, calf roping, and single steer roping";
• "riding, inspecting, or evaluating an equine animal belonging to another";
• "training or teaching" and "boarding"; and
• "a ride, trip, or hunt that is sponsored by an equine activity sponsor".
Sec. 87.001(3)(A), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(3)(G), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(3)(D), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(3)(B)–(C), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(3)(E), 1995 Tex. Gen. Laws at 3318.
The Act defined "engag[ing] in an equine activity" as "riding, handling, training, driving, assisting in the medical treatment of, being a passenger on, or assisting a participant or sponsor with an equine animal." The definition specifically included "management of a show" but excluded "being a spectator at an equine activity unless ... in an unauthorized area and in immediate proximity to the equine activity."
Sec. 87.001(1), 1995 Tex. Gen. Laws at 3318.
Id.
Notably, as these lengthy excerpts repeatedly demonstrate, the Equine Act described its coverage not in general terms or concepts but with detailed and specific examples. An equine activity might simply have been defined as any activity involving an equine. Instead, the statute defined the two words with a 158-word sentence containing some 40 examples. An equine activity is not just a "show, fair, competition, performance, or parade," but one that involves "any equine discipline," which is described with 13 examples. The definition includes "single event competitions," but rather than stop there, it adds, "including team roping, calf roping, and single steer roping." An equine activity sponsor provides facilities not just for a club, but for "a pony club, 4-H club, hunt club, [or] riding club".
Sec. 87.001(3), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(3)(A), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(3)(G), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(4)(A), 1995 Tex. Gen. Laws at 3318.
The Equine Act's prolixity made obvious that it was entirely concerned with equine activities unrelated to ranching—that is, breeding, feeding, and working equine animals as a vocation. In all its scores of examples, there was no hint of any application to ranchers' and ranch hands' involvement with horses. The omission must be meaningful.
In the relatively few instances when the Equine Act did speak in general terms, those terms must be read in connection with the statute's examples. The statute limited the liability of "any person, including an equine activity sponsor or an equine professional". Ordinarily, "including" is a term of enlargement. But "any person", in the abstract, cannot be enlarged upon. Removed from its context, it is universal. To read the phrase as such would make the two examples that follow surplusage, violating the cardinal rule of statutory interpretation that every word of text be given meaning. It is like saying, "any person, including John and Mary." If by "any person" it is meant any person in the world, then it says nothing to specify that John and Mary are included. But the addition has meaning if John and Mary are examples of the persons intended.
Sec. 87.003, 1995 Tex. Gen. Laws at 3319.
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 256 (Tex. 2008) ("The Court must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous.").
The Equine Act defined an "equine activity sponsor" shielded from liability as "a person ... who ... provides the facilities for an equine activity". That describes a rancher with a stable, which is unquestionably a facility for an equine activity. But the examples of facilities that follow the next word, "including"—facilities for various school clubs and programs—show that the statute intended that "sponsor" be someone who provided a facility like those listed, not everyone who provided a facility where an equine could possibly be placed. The Equine Act defined "participant" as "a person who engages in an equine activity," but the statute then immediately added, "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." If the statute meant any person at all, then the four examples listed would be surplusage. They have meaning only if they typify the persons intended as participants.
Sec. 87.001(4)(A), 1995 Tex. Gen. Laws at 3318.
Sec. 87.001(6), 1995 Tex. Gen. Laws at 3319.
Not only do the many examples in the Equine Act omit any mention of ranchers and ranch hands, every textual indication shows that they are not covered. The court of appeals came to that conclusion 10 years after the Equine Act was passed in Dodge v. Durdin. Today, every state but two—California and Maryland—has a statute limiting liability for equine activities. We are unaware of any that applies to ranching or limits a ranch employee's recovery for on-the-job injuries caused by horses. Nor are we aware of any reported decision applying an equine statute to ranching. In the 40-year history of equine activity statutes, the Dodge court—the only one to consider the issue of which we have been made aware—held that the Texas Equine Act does not apply to ranching.
187 S.W.3d 523, 530 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The court relied in part on the Equine Act's legislative history—statements made by participants in the legislative process who cannot speak for the legislative body—and specifically, a bill analysis prepared by legislative staff. Id. at 528–529. While this reliance was misplaced, the court's interpretation of the statute was otherwise sound.
B
In 2011, the Legislature broadened the Equine Act in three ways. The renamed Farm Animal Act included other farm animals besides equines: bovines, sheep, goats, pigs, hogs, ratites, ostriches, rheas, emus, chicken, and other fowl. It was somewhat expanded to cover veterinarians and livestock shows. And the words "handling, loading, or unloading" were added to the definition of farm animal activity.
Farm Animal Activity Act, 82nd Leg., R.S., ch. 896, 2011 Tex. Gen. Laws 896 (amending Tex. Civ. Prac. & Rem. Code ch. 87).
§ 87.001(5)(C)–(D).
§§ 87.001(6) -(8), (9)(B) ; 87.004(6).
In other respects, the Farm Animal Act did not depart from the Equine Act. The former, like the latter, limits the liability of "any person, including a farm animal activity sponsor [or] farm animal professional," but then continues with additional examples of a person whose liability is limited: "livestock producer, livestock show participant, or livestock show sponsor". As in the Equine Act, the categories following "including" cannot be read as exclusive, but neither can they be read as meaningless. In both statutes, the examples show the types of persons meant by "any". Farm animal sponsors, which the Farm Animal Act defines essentially the same way the Equine Act did, are largely event organizers and facilities providers, and professionals are trainers and equipment renters. The livestock examples relate to "shows". The examples confine the statute's protections to the context of shows, rides, exhibitions, competitions, and the like. The categories listed as examples do not suggest that ranchers should also be included.
§ 87.003.
See § 87.001(4).
See § 87.001(5).
See § 87.001(7) –(8).
The Farm Animal Act limits liability to or for a "participant", defined in part as "a person who engages in [a farm animal] 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". Again, to give any meaning to the listing of four examples—amateur, professional, paying, and for free—they must be read as typical of participants. They describe the kind of people the Act treats as participants. Ranch hands might be said to be experienced or inexperienced, but would not be said to be professional or amateur. On the other hand, horse riders in a show or rodeo, or even on a trail ride or hunt, might certainly be said to be amateur or professional. Ranch hands do not pay to work. It makes no sense to speak of a ranch hand "without regard to whether ... the person pays for the activity". And ranch hands, though often underpaid, do not ordinarily work for free. The four examples make clear that referring to a ranch hand as a "participant in a farm animal activity" is inconsistent with the Act's history and context. This is even clearer from the second part of the definition of "participant", which relates only to livestock shows.
See § 87.001(9)(B).
The Equine Act included "handling" in the long list of examples defining engaging in equine activities. The Farm Animal Act added "loading [and] unloading" to the list in the corresponding definition of engaging in farm animal activities and added "handling, loading, or unloading" to the list of examples that define farm animal activity. But those words obviously have meaning outside the ranching context, and nothing in any of the Legislature's changes in the Equine Act suggests that by adding those three words it intended to broaden the Farm Animal Act to cover ranching for the first time.
Equine Act, sec. 87.001(1), 1995 Tex. Gen. Laws at 3318.
Ranch hands do not work as amateurs or professionals, they certainly do not pay to do their work, and they ordinarily do not work for free. Ranch hands have none of the characteristics the Farm Animal Act lists for "participants". Ranchers, as such, are not farm animal activity organizers, facilities providers, trainers, equipment renters, and showmen. They have none of the qualities the Act lists for those it protects. Thus, we conclude that the Farm Animal Act does not cover ranchers and ranch hands and that it did not shield the Waaks from liability for their negligence, if any, resulting in Zuniga's death.
C
The DISSENT'S contrary conclusion requires a reading of the Farm Animal Act that has significant constitutional impediments and cannot reasonably be ascribed to the Legislature. This necessitates an explanation of Texas' workers' compensation system.
The workers' compensation system throughout the country strikes a balance between employers' and employees' respective interests in compensating workplace injuries. The employee cannot sue the employer on common law claims, thereby relieving the employer of defending and paying them, but in return, the employer must pay the employee standardized insurance benefits regardless of fault. Each pays or receives something, though perhaps more or less than under the common law.
See Kroger Co. v. Keng , 23 S.W.3d 347, 349–350 (Tex. 2000) (providing background on the WCA).
In Texas, an employer can opt out of the system. The Texas Workers' Compensation Act (WCA ) "discourages employers from opting out of workers' compensation insurance by prohibiting a nonsubscriber from asserting that its employee was contributorily negligent, assumed the risk, or that a fellow employee's negligence caused the employee's injuries." Thus, the employee of a nonsubscribing employer, though not receiving compensation benefits, has a remedy against the employer in the form of a negligence action. Though the WCA limits the nonsubscribing employer's defenses, it does not prevent an employer from asserting the liability shield of the Farm Animal Act. A ranch hand accidentally injured on the job by falling, by something falling on him, by equipment, by twisting his back or pulling a muscle—by almost anything—can sue his nonsubscriber employer and recover damages as long as he was not intoxicated. But he could not do so if the employer were protected by the Farm Animal Act. If the Act covered ranch hands, then it would operate to deny those employed by nonsubscribers of any remedy whatsoever for their injuries. They would not be entitled to compensation benefits, and they would have no common law cause of action. That is certainly a policy choice the Legislature could make. It could single out ranch hands and deny them, alone of all employees in the state, any right of recovery whatsoever for certain accidental injuries, commonplace in their jobs, while working for nonsubscribing employers. Apart from the constitutional implications of such a decision—such as violations of due process and equal protections guarantees, as well as open courts—nothing in the history of the Texas Equine Act or of similar statutes in almost all other states or in the caselaw interpreting them suggests any intent to deny recovery of damages for injuries from horse activities altogether in a group of cases. Rather, the history of these statutes shows a universal legislative intent, for claims of injury from horses, to return to something like the common law, with its absolute defenses of contributory negligence and assumption of the risk.
Tex. Lab. Code ch. 406.
Kroger Co. , 23 S.W.3d at 350 (citing Tex. Lab. Code § 406.033(a) ).
It is certainly not our place to make policy decisions that are for the Legislature to make. But it is exclusively our place to determine what policy decisions they have made. The Farm Animal Act can reasonably be interpreted to fulfill its historical and stated intent fully and completely without adding legal injury to physical injury for one small class of ranch hands.
We have confronted a similar situation before. In 1985, the Legislature amended the Motor Vehicle Code to require the use of seat belts and impose criminal penalties for nonuse, while adding that "[u]se or nonuse of a safety belt is not admissible evidence in a civil trial." When Marilyn Glyn-Jones sued on a products liability claim, alleging that her seat belt was defective, defendant Firestone moved for summary judgment, arguing that Glyn-Jones could not prove her case because she could not offer evidence that she had been using her seat belt. The trial court granted the motion. The court of appeals reversed, holding that the statutory provision violated the Open Courts provision of the Texas Constitution. We affirmed without reaching the constitutional issue, holding instead that the statute could not reasonably be interpreted to apply in products liability cases. "[T]hat the Legislature would absolve seat belt manufacturers from products liability claims in a subsection of a traffic statute [was] simply too much to believe."
See Bridgestone/Firestone, Inc. v. Glyn-Jones , 878 S.W.2d 132, 134 (Tex. 1994) (quoting former Tex. Rev. Civ. Stat. Ann. art. 6701(d), § 107C(j)).
Id. at 134–135.
Id. at 135 (Hecht, J., concurring).
* * * * *
The court of appeals correctly concluded that the Farm Animal Act does not apply to ranchers and ranch hands acting as such. Accordingly, the court's judgment is
Affirmed.
Justice Blacklock filed a dissenting opinion, in which Justice Boyd joined.
Justice Bland did not participate in the decision.
Justice Blacklock, joined by Justice Boyd, dissenting.
As the Court reads the Farm Animal Activities Act, "any person" means only some people. "Farm animal activities" are not covered if they take place on ranches. And not just anybody who engages in a "farm animal activity" is "a person who engages in the activity." Who decides whether these limitations exist and how far they extend? Not the Legislature, which did not include any of them in the Act's text. Instead, courts will decide when the statute's words mean exactly what they say and when they mean something else. The unfortunate result is that people cannot simply read the Act—and others similarly drafted—and know what it means based on its grammar and sentence structure. They must wait to see what the courts make of it.
The Act's verbiage is at times dense, but it has a firm and definite meaning under normal rules of English grammar. "Any person, including x, y, and z" does not mean "only people who resemble x, y, and z." There is no way to get from one to the other without making our middle school English teachers recoil in horror. Yet that seems to be how the Court reads the Act. Non-exhaustive lists following words like "including" are common in statutes. These illustrative catalogues, in dependent clauses set off by commas, do not affect the core meaning of a sentence. That does not make them superfluous, and even if it did, the superfluous language cannon is not an excuse to ignore the way the Legislature constructed a sentence. The goal in statutory construction is to understand the meaning of the legislative words "according to the rules of grammar and common usage." Brazos Elec. Power Coop., Inc. v. Tex. Comm'n on Envtl. Quality , 576 S.W.3d 374, 384 (Tex. 2019). That primary goal should always prevail over secondary interpretive tools like avoiding superfluous verbiage.
The Act limits the liability of "any person," not particular categories of people, who are sued for injuries to a "participant in a farm animal activity," as the statute defines that phrase. TEX. CIV. PRAC. & REM. CODE § 87.003. The decedent in this case was "loading [ ] or unloading a farm animal belonging to another" when the accident occurred, which makes him a "participant in a farm animal activity" under the statutorily supplied definitions. Id. § 87.001. Thus, the Act's liability limitations apply.
If the Legislature wants the Act to have a narrower scope, it can amend the law. We should not attempt to remedy a perceived disconnect between a broadly worded statute and the narrow concerns presumed to have motivated its enactment. That is a legislative function. We should apply the words of the law exactly as written. Doing so in this case requires reversal of the court of appeals' judgment and remand for consideration of the Act's exceptions. Because the Court does otherwise, I respectfully dissent.
* * *
Understanding a statute's meaning begins and ends with the statute's text. BankDirect Capital Fin., LLC v. Plasma Fab, LLC , 519 S.W.3d 76, 86 (Tex. 2017). When the Legislature defines its terms, "we are bound to apply the statutory definition in deciding the question before us." Nelson v. Union Equity Co-op. Exch. , 548 S.W.2d 352, 355 (Tex. 1977).
Section 87.003 of the Farm Animal Activities Act states:
The Court's focus on comparable acts in other states and on the original language of the Equine Act provides interesting historical context, but it does not illuminate the meaning of the current text of Texas 's Act. For that, we must look first to the words themselves. Only if ambiguity existed in the current text of the Act should we consider looking to what prior versions of it said. The statute has been amended several times since its original passage as the Equine Act, and we must presume with each amendment the Legislature chose its words carefully. See., e.g. , In re Canales , 52 S.W.3d 698, 703 (Tex. 2001) ; Berry v. Powell , 101 Tex. 55, 104 S.W. 1044, 1045 (1907). All that matters here is what the latest version of the statute means in plain English.
[e]xcept as provided by Section 87.004, any person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor, is not liable for property damage or damages arising from the personal injury or death of a participant in a farm animal activity or livestock show if the property damage, injury, or death 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 ....
TEX. CIV. PRAC. & REM. CODE § 87.003.
The Act defines "Participant" as, "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)(A). "Engages in a farm animal activity" is defined as
riding, handling, training, driving, loading, unloading, assisting in the medical treatment of, being a passenger on, or assisting a participant or sponsor with a farm animal. The term includes management of a show involving farm animals. The term does not include being a spectator at a farm animal activity unless the spectator is in an unauthorized area and in immediate proximity to the farm animal activity.
Id. § 87.001(1). "Farm animal activity" means:
(A) a farm animal show, fair, competition, performance, rodeo, event, or parade that involves any farm animal;
(B) training or teaching activities involving a farm animal;
(C) boarding a farm animal, including daily care;
(D) riding, inspecting, evaluating, handling, loading, or unloading a farm animal belonging to another, without regard to whether the owner receives monetary consideration or other thing of value for the use of the farm animal or permits a prospective purchaser of the farm animal to ride, inspect, evaluate, handle, load, or unload the farm animal;
(E) informal farm animal activity, including a ride, trip, or hunt that is sponsored by a farm animal activity sponsor;
(F) placing or replacing horseshoes on an equine animal;
(G) examining or administering medical treatment to a farm animal by a veterinarian; or
(H) without regard to whether the participants are compensated, rodeos and single event competitions, including team roping, calf roping, and single steer roping.
Id. § 87.001(3) (emphasis added).
* * *
When the statutory text and its legislatively supplied definitions are applied to the alleged facts of Zuniga's accident, there is little question the Act's liability limitations apply. Section 87.003 provides that "any person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor, is not liable ...." The sentence's operative language is "any person ... is not liable." "[A]ny person" obviously includes the Waaks. The word "including" introduces a dependent clause that does not alter the meaning of the sentence's operative language. As always, a list following the word "including" is not an exclusive enumeration of the covered categories. See, e.g. , Sneed v. Webre , 465 S.W.3d 169, 190 (Tex. 2015) ; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132 (2012) ("The verb to include introduces examples, not an exhaustive list."). Whether or not the Waaks are any of the things mentioned in the list, they are "any person," so the statute protects them from liability, assuming its other requirements are met.
In addition, Zuniga was a "participant" under the Act, which defines "participant" as, "with respect to a farm animal activity, a person who engages in the activity." Id. § 87.001(9). That is the sentence's operative language. It is followed by a comma and a dependent clause: "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. (emphasis added). In English grammar, dependent clauses may be restrictive or non-restrictive. Non-restrictive clauses provide additional, nonessential information and are typically set off by commas. If a non-restrictive clause is omitted, the sentence still makes sense. Id. So it is with section 87.001(9). A "participant" is "a person who engages in the [farm animal] activity." Everything following the comma before "without regard to ...." is a non-restrictive clause that does not change the operative portion of the definition. See id. § 87.001(9).
These are also known as "defining" and "non-defining," or "essential" and "nonessential," respectively. See Defining , The Oxford Dictionary of English Grammar 119–20 (2d ed. 2014); Barney Latimer, Commas: Essential and Nonessential Elements , The Modern Language Association (Aug. 13, 2019), https://style.mla.org/commas-and-essential-elements/.
The United States Supreme Court used similar grammatical analysis in District of Columbia v. Heller , in which it acknowledged that the Second Amendment provides an individual right to keep and bear arms. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Second Amendment provides, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The issue was what to make of the prefatory clause, "A well regulated Militia, being necessary to the security of a free State." The Court held that, grammatically, "apart from [a] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." Heller , 554 U.S. at 578, 128 S.Ct. 2783. Thus, while the modifying clause of the Second Amendment announces a purpose, it does not limit the scope of the right to keep and bear arms announced by the operative clause. Id. at 577–78, 128 S.Ct. 2783. Similarly here, the non-restrictive clause beginning with "without regard to" announces criteria that may not be considered, but it does not limit the operative clause's definition of who qualifies as a "participant."
"Without regard to" means what it says: "whether the person is an amateur or professional or whether the person pays for the activity or participates in the activity for free" cannot be considered in determining whether a person is a "participant" for purposes of the FAAA. Properly construed, the statute's operative definition of "participant" is "a person who engages in [a farm animal] activity." The dependent clause following "without regard to" attempts to make doubly sure courts will not decide that some people who meet the definition are not "participants" (although ironically it seems to have had the opposite effect). Zuniga was a "participant" if he was "engaged in a farm animal activity." Whether he fits any of the descriptions following the words "without regard to" is irrelevant.
Thus, in determining whether section 87.003 applies, the key question is whether Zuniga was engaged in "farm animal activity" at the time of his death. The Act defines "farm animal activity" to include "riding, inspecting, evaluating, handling, loading, or unloading a farm animal belonging to another." Id. § 87.001(3)(D). It also defines "engages in a farm animal activity" as "riding, handling, training, driving, loading, [or] unloading ... a farm animal." Id. § 87.001(1). Under either definition, "handling," "loading," or "unloading" a "farm animal" qualifies as a "farm animal activity." The plaintiffs' petition alleges Zuniga was killed by a bull "while [he] was moving cattle" belonging to the Waaks. Thus, under the facts as pleaded, Zuniga was engaged in a farm animal activity because he was "handling, loading, or unloading a farm animal belonging to another" when the accident occurred. There is no genuine dispute he was doing so.
The Act's text does not exclude any category of people who handle, load, or unload farm animals. Contrary to the Court's holding, the Act contains no exception for ranch work. When a statute's text is this clear, courts should not use interpretive aides or rules of construction to conjure up the possibility that unspoken exceptions lurk beneath clearly written, broadly phrased text. There is no doubt about what "handling, loading, or unloading a farm animal" means. When the statute says it applies to "a person" who does so, it does not also need to specifically say it covers "an employee" who does so. Employees are persons. Nor does it need to specifically say it applies on ranches, which are in the very business of "handling, loading, or unloading a farm animal."
The Legislature's chosen words have only one meaning, and we have no license to look behind those words for hidden exceptions. Our job is simply to read the words and apply them. I agree with the Court that the context in which words appear can sometimes contribute to understanding their meaning. TGS–NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 441 (Tex. 2011). But context does not change text. Even when looking to context, the task is still to understand the meaning of the words chosen by the Legislature. We may look to context to better understand what the statute's words mean, but we may not use context to make the words mean something they do not say. Consideration of context is not license to import caveats and restrictions that are not supported by the common, ordinary meaning of the text itself.
When the Legislature wishes to limit definitions of this kind, it has done so. See, e.g. , Tex. Civ. Prac. & Rem. Code §§ 75A.001 –.002. That statute, which is similar in form and substance to the FAAA, limits liability for agritourism activities. See id. § 75A.002. However, unlike the FAAA, it defines "Agritourism participant" as "an individual, other than an employee of an agritourism entity , who engages in an agritourism activity." See id. § 75A.001 (emphasis added). The FAAA's definition of "participant" contains no such carve-out for employees. See id. § 87.001(9).
The Court cites the superfluous language canon to support its conclusion that "any person" does not include the Waaks. "Any person," is followed by the word "including" and a lengthy illustrative list. The Court reasons that if "any person" really meant "any person," the list would serve no purpose, a result which must be avoided. But the superfluous language canon "cannot always be dispositive because ... [s]ometimes drafters do repeat themselves and do include words that add nothing of substance, either out of a flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach." Scalia & Garner, supra , at 176–77 (emphasis omitted). Moreover, the illustrative list following "any person" is not superfluous. Concerned (not without reason) that courts may not stick strictly to the text, the Legislature often makes doubly sure its meaning is understood by providing non-exhaustive explanatory lists within statutes. This "lamentably common belt-and-suspenders approach" is not a license for courts to depart from a sentence's objective grammatical meaning in a bid to avoid surplusage. There may be hundreds of such statutory lists in Texas's code books. If we must depart from normal rules of grammar to give these dependent clauses more work to do, many statutes may unexpectedly require reexamination.
The Court invokes the statutory "context" of the many recreational activities listed in the definition of "farm animal activity" to conclude that "handling, loading, or unloading a farm animal" is only covered if it happens at a recreational activity. But there is no reason to question the common meaning of "handling, loading, or unloading a farm animal" or to resort to contextual analysis to impose limitations the text does not support. True, much of the conduct covered under the definition of "farm animal activity" occurs only at livestock shows or recreational events, not on ranches. But not all of it does. As the court of appeals acknowledged, "farm animal activity" is "defined to include a broad number of activities." 562 S.W.3d at 577. Indeed, much of the conduct covered under the definitions of "engages in a farm animal activity" and "farm animal activity" is precisely the kind of thing ranch employees do: "riding, inspecting, [and] evaluating" farm animals; "placing or replacing horseshoes"; and "examining or administering medical treatment to a farm animal." See TEX. CIV. PRAC. & REM. CODE § 87.001(3). The Act's text covers these everyday animal husbandry activities without regard to where they take place or whether they have anything to do with a livestock show or recreational event. Similarly, the Act applies in the same way to "handling, loading, or unloading a farm animal belonging to another," whether on ranches or anywhere else. See id.
It would have been very easy to write a statute that applies only at recreational livestock events, a statute that only covers horseshoeing, veterinary treatment, and loading or unloading animals at such events, not on ranches. There are several places in the Act's overlapping maze of definitions where such a limitation could have been imposed. It was not. Only by focusing on what most of the Act's examples and illustrations seem concerned with, while discounting the Act's broadly worded operative language, is the Court able to impose limitations on the Act's scope that do not appear in its text. The main problem with this approach is that the Act's broadly worded operative language is in the Act. Words limiting the Act's scope to recreational livestock events are not in the Act.
Finally, the Court's focus on the "context" of the statutory language, as opposed to its objective grammatical meaning, risks bleeding over into the fraught realm of purposive statutory interpretation. Courts should not stray from the language of the statute in pursuit of achieving the result judges imagine to be consistent with legislative "purpose." Focusing on presumed legislative purpose instead of statutory text presents well-known problems. It can lead to results that are unpredictable and easily manipulated. Scalia & Garner, supra , at 18–19. It can ignore the reality that statutes may incorporate multiple purposes and compromises reached by a legislature composed of many people. See id. at 21. Most troubling, when a court strays from text and instead endeavors "to produce sensible, desirable results, since that is surely what the legislature must have intended," courts risk replacing legislative policy choices with their own. Id. at 22, 57.
"Five judges are no more likely to agree than five philosophers upon the philosophy behind an Act of Parliament, and five different judges are likely to have five different ideas about the right escape route from the prison of the text." Scalia & Garner, supra , at 19 (quoting Patrick Devlin, The Judge 16 (1979)).
Again, if the Legislature had wished to write a statute that only covered "farm animal activities" at recreational events and not at ranches, it could easily have done so. Instead, it wrote a much broader statute that protects "any person" against lawsuits by "a person" who "engages" in the activities. When the statute is applied as written, it covers this case. Courts should not second-guess that result or plumb the depths of the statute's "context" for unwritten exceptions to the text's plain meaning. If a majority of the Legislature thinks the text it enacted is unduly broad, it can change the law.
The court of appeals relied on legislative history to reach a conclusion similar to the Court's. 562 S.W.3d at 579. The Court correctly avoids that mistake. "Any imagined gains from rummaging around in legislative minutiae, particularly absent any textual ambiguity, are more than dwarfed by multiple realities." In re Reece , 341 S.W.3d 360, 397–98 (Tex. 2011) (Willett, J., concurring). One such reality is that legislative history is easily manipulable. If people think courts will consider legislative history when applying statutes, opportunistic legislators and interest groups will put all kinds of things into the legislative record. Bill summaries like the one relied upon by the court of appeals are typically written by legislative staff. Even if the bill author himself wrote the summary, it takes only one legislator to state a bill's intent as he sees it (or, perhaps, as he wishes courts to see it). Making law, on the other hand, requires majorities of the elected representatives in both houses and the governor. This practical reality—that legislative history is easily manipulated by individual legislators and interest groups—points to a much deeper reason courts should not consult legislative history when interpreting statutes. "The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators." Conroy v. Aniskoff , 507 U.S. 511, 519, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring). Legislative history reflects the unilateral view of one legislator, not the collective view of the body empowered by the constitution to make laws. "The Legislature does not speak through individuals ... it speaks through its enactments." Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 447 (Tex. 2009) (Hecht, J., concurring). The text of those enactments is the law, and our role extends no further than applying it as written.
* * *
The Court expresses concern that if the Act covers this case, farm hands like Zuniga will unfairly lose the benefit of Texas's workers' compensation laws. The Court even goes so far as to suggest the Texas Constitution might prohibit the Act from applying to ranch hands. In my view, the Court overstates the impact the Act has on the normal employee-employer relationship. The Act modestly limits the litigation rights of some injured employees. It by no means cuts them off altogether. This is a legislative choice similar to that contained in many other Texas statutes. It is not a constitutional matter. To begin with, applying the Act to this case does not mean the Waaks necessarily walk. The majority suggests that if the Act applies, the courthouse doors are barred. That is not the case. At the trial court, the Waaks moved for partial summary judgment concerning the applicability of section 87.003, acknowledging that "the parties will still need to try the Act's potential exceptions to the limitations of liability as set forth in Texas Civil Practice and Remedies Code Section 87.004(2) and (4)." Those exceptions apply when the defendant "did not make a reasonable and prudent effort to determine the ability of the participant to engage safely in the farm animal activity or ... manage the farm animal," id. § 87.004(2), or committed "an act or omission with wilful or wanton disregard for the safety of the participant and that act or omission caused the injury." Id. § 87.004(4). The first exception—for failing to ensure the activity can be done safely—could certainly apply in Zuniga's case and in many others like it. In the context of employee accidents, the Act's preservation of employer liability for failing to reasonably ensure the employee could do his job safely leaves many—perhaps most—negligence claims viable.
There is nothing remarkable, unusual, or constitutionally suspect about a non-subscribing employer asserting statutory defenses in a case brought by an injured employee under section 406.033 of the Labor Code. In such a case, "it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee."
TEX. LAB. CODE § 406.033(a). Assuming those rules apply to this case, the Waaks cannot raise these common-law defenses. But the Labor Code does not say the Waaks cannot assert the defense provided by section 87.004 of the Farm Animals Activity Act or any other statutory defense. Just as defendants in such cases can assert statutes of limitation, they can also assert any statutory defenses that do not conflict with the Labor Code's liability rules. In addition to statutes of limitation, the code books are replete with defenses that might be raised by non-subscribing employers in lawsuits over work-related accidents. To the extent some fear the availability of these defenses "undermines" the workers' compensation laws, their beef is with the Legislature, which enacted these generally applicable limitations on liability without making employee vs. employer suits exempt from them.
See, e.g. , Tex. Civ. Prac. & Rem. Code § 16.008(a) (limiting the time by which a person must bring a suit against an architect, engineer, interior designer, or landscape architect for injuries related to his work); id. § 72.001 (limiting liability for motor vehicle owners for injuries to passengers); id. § 75.006 (limiting liability for landowners for injuries to others due to actions by first responders); id. § 84.006 (limiting money damages against nonhospital charitable organizations for injuries to others for which they are responsible); id. § 100A.002 (limiting liability for space flight entities for injuries to space flight participants).
Here, the plaintiffs might very well have been able to demonstrate that section 87.004's exceptions apply. But even if the FAAA ultimately protected the Waaks from all liability in this case, that result is within the prerogative of the Legislature, which does not violate the Constitution by limiting litigation over the unpredictable and uncontrollable behavior of livestock. * * *
Both common law and statute provide numerous limitations on liability for the unpredictable behavior of livestock. See, e.g. , Pruski v. Garcia , 594 S.W.3d 322, 328 (Tex. 2020) (holding that a statutory limitation of liability applied against a rancher whose bull escaped its fenced pasture and was hit by vehicle in the road); Marshall v. Ranne , 511 S.W.2d 255, 258, (Tex. 1974) (noting that the common law did not impose liability on a person for injury caused by his domestic animal unless the animal was abnormally dangerous and the person had reason to know it); Tex. Cent. Ry. v. Pruitt , 101 Tex. 548, 109 S.W. 925, 927 (1908) (noting the statutory limitation of liability for railroad companies who build and maintain adequate fencing to keep out livestock); Gulf, C. & S. F. Ry. v. Trawick , 68 Tex. 314, 4 S.W. 567, 569 (1887) (noting that the common law did not impose liability against common carriers for injury to livestock that results from the animal's "vicious propensities or inherent character").
We should stick strictly to the statutory text, even when the result is unexpected or seems unfair. Because Zuniga was a "participant" engaged in a "farm animal activity" at the time of the accident, the Farm Animal Activities Act's liability limitations apply. I would reverse the judgment of the court of appeals and remand the case to the trial court for consideration of the statutory exceptions in section 87.004. I respectfully dissent.