Opinion
Civil Action No: SA-03-CA-1312-XR
January 23, 2004
ORDER
On this date, the Court considered the Plaintiffs' Application for Preliminary Injunction. The parties appeared before the Court for a hearing on January 20, 2004. After considering the evidence, the applicable case law, and the arguments of counsel, the Court DENIES Plaintiffs' application for preliminary injunction (docket no. 2).
FINDINGS OF FACT
1. The Town of Hollywood Park is a Type A general law municipality. See TEX. CONST. Art. XI, § 4; TEX. LOCAL GOV'T CODE § 6.001.
2. Plaintiff Phillip Rodriguez, a resident of Hollywood Park and a member of the Hollywood Park Humane Society, has developed a relationship with a family or small herd of deer (approximately 22 to 25 deer). He has provided care to the deer. Some deer have been born on his property. The deer visit his house on a frequent, even daily basis. He is able to "almost touch" the deer. He has started to name them and "can see the deer as being his own deer." Killing of the deer would make him want to leave the Town of Hollywood Park and would cause him emotional and mental anguish. The deer are not enclosed and are not on his property twenty-four hours per day. They are free to and do visit others' property. He has never applied for a permit with the Texas Parks and Wildlife Department regarding the deer.
3. Plaintiff Hugh Scott is a Hollywood Park resident. The deer visit his property on a regular basis. He considers himself the deer's protector and views the deer as pets or quasi-pets. His daughters grew up with the deer. He has met with Drew Traeger, the city manager and project manager for the deer program, twice to discuss the deer. He has offered to give the town money to relocate the deer and is actively seeking locations for the deer. He will be "very upset" if the Town proceeds with the TTP program.
4. Plaintiff Cherie Emick is a long-time resident of Hollywood Park and the Chairperson of the Hollywood Park Humane Society. She views approximately thirty to forty deer as "members of her family." Deer enter and exit the property on which she resides on a regular basis. She takes care of these deer as well as injured deer in the community. She has named approximately ten of the deer. She has not applied for any type of permit with the Texas Parks and Wildlife Department in relation to these deer.
5. The parties have stipulated that; (1) all individual Plaintiffs are members of the Hollywood Park Humane Society, (2) all individual Plaintiffs, except Cherie Emick, own land in Hollywood Park, (3) Cherie Emick rents property in Hollywood Park, and (4) all individual Plaintiffs would testify essentially like Phillip Rodriguez.
6. The Hollywood Park Humane Society is a non-profit corporation. One of its purposes is "to protect, safeguard, and nurture the lives and rights of domestic animals and wild life population from cruelty, abuse or mistreatment of any kind and promote and enhance their health, safety, and well-being" within the Town of Hollywood Park. It has approximately fifty-four members.
7. The Legislature passed Senate Bill 1582 in the 78th regular legislative session. The bill analysis provides that "[c]urrently, there is an overpopulation of white-tail deer in urban areas in Texas. This represents a public safety and public health problem for affected political subdivisions and unincorporated urban areas. Deer relocation under the Trapping, Transporting, and Transplanting Program (TTT) is an available option under current law. However, the TTT permit requirement for ranchers and other potential recipients of relocated deer to develop and maintain approved wildlife management plans restricts the relocation of deer from urban areas. S.B. 1582 authorizes political subdivisions and property owners' associations to trap and transport white-tailed deer under certain circumstances and with a permit issued by the Texas Parks and Wildlife Department." STATE CULTURAL RECREATIONAL RESOURCES COMMITTEE, BILL ANALYSIS, S.B. 1582, 78th Leg., R.S. (2003). Senate Bill 1582's effective date was September 1, 2003. Senate Bill 1582 added section 43.0612 to the Parks and Wildlife Code.
8. Pursuant to Texas Parks and Wildlife Code § 43.0612(i) and its rule-making authority, the Texas Parks and Wildlife Commission issued rule § 65.104, effective October 21, 2003. Texas Administrative Code Rule § 65.104 is entitled "Trap, Transport, and Process Surplus White-tailed Deer Permit" and provides that deer trapped and transported pursuant to that section must be delivered to a processing facility selected by the applicant and approved by the department. 31 TEX. ADMIN. CODE § 65.104(a). Deer may be euthanized at either the trap site or the processing facility. Id. § 65.104(c). All carcasses must be utilized by a penal facility or by a department-approved charitable organization. Id. § 65.104(b).
9. When the proposed amendments were included in the Texas Register, it was stated that "The amendments would implement the provisions of Senate Bill 1582, enacted by the 78th Legislature, which allows the commission to authorize political subdivisions and property owners' associations to trap, transport, and process surplus white-tailed deer when an overpopulation of white-tailed deer is shown to exist." Concerning the addition of section 65.104, the Texas Register states that "The amendment is necessary to establish the places where the activities authorized by Senate Bill 1582 may take place, the timeframes for trapping and transportation, that the utilization of the resource is consistent with the intent of the authorizing statute, the qualification of permit applicants for permit issuance, and the ability of the department to gather additional information regarding permit activities when necessary."
10. On December 16, 2003, the Town of Hollywood Park enacted Ordinance No. 769, which amended the city code to include "the authorization to trap, transport and process deer or to reduce the number of deer within the municipality through the Texas Parks and Wildlife depredation program, or to control the population of deer through a contrceptive [sic] program as approved by the Texas Parks and Wildlife Division of the Sate of Texas." Bryan Richards, technical program coordinator for the Texas Parks and Wildlife Department, was present at the meeting to provide information regarding deer control options to the city council. The city council was also provided with a report from the town's deer control committee.
11. Ordinance No. 769 authorizes "[t]he Mayor and/or the Project Manager" to "implement and execute the deer management program through trapping and transporting, or trapping, transporting and processing (hereinafter TTP), or through a depredation program approved by the Parks and Wildlife Division of the State of Texas, or a program of contraception that is approved by the Texas Parks and Wildlife Division of the State of Texas, all of said programs to adhere to the currently, prescribed programs, policies and procedures for the management of deer that are promulgated by the State of Texas Parks and Wildlife Division."
12. On December 22, 2003, the Hollywood Park City Council voted to contract to trap deer in Hollywood Park for transplantation (TTT) or processing (TTP).
13. Plaintiffs filed this suit in state court December 23, 2003. Defendants removed the case to this Court on January 2, 2004.
14. On January 5, 2004, City Administrator Drew Traeger submitted an application for an urban white-tailed deer removal permit. This permit application was incomplete because it did not include test results for chronic wasting disease and did not include an approved location for transplanting the deer. To date, the Town has not received an urban white-tailed deer removal permit.
15. On January 5, 2004, Traeger submitted a complete application for a trap, transport, and process ("TTP") permit. The Texas Department of Parks and Wildlife issued a TTP permit to the Town of Hollywood Park on January 9, 2004. The permit allows the Town to trap up to 300 white-tailed deer using a drop net. The permit provides that the deer will be killed at a processing facility by gunshot to the cranium, and the carcasses will be received by the Salvation Army in San Antonio. The permit is effective from January 9 to August 31, 2004. The permit requires the supervisory permittee, Drew Traeger, to notify the Texas Parks and Wildlife Department Law Enforcement Communications Center between 24 and 48 hours prior 1o each attempt to trap deer. The permit further requires that the supervisory permittee must acquire written permission from private landowners prior to entering private properties to carry out the activities authorized by the permit. The permit also requires that antlers be removed from all male deer prior to transport and that permittees take reasonable precautions to maximize the humane treatment of and to minimize stress on trapped deer.
16. The City Council has authorized the City Administrator/Project Manager, Drew Traeger, to begin trapping. The Town plans to begin trapping in late January or early February, subject to these proceedings. The Town would prefer to use the TTT method but will proceed with the TTP process without waiting for an approved relocation site. If TTT becomes a viable option, the Town will abate the TTP process and proceed with the TTT process instead.
CONCLUSIONS OF LAW
1. Any finding of fact contained herein that also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law contained herein that also constitutes a finding of fact is hereby adopted as a finding of fact.
2. To obtain a preliminary injunction, the plaintiff must show: 1) that there is a substantial likelihood that it will succeed on the merits; 2) that there is a substantial threat that it will suffer irreparable injury if the district court does not grant the injunction; 3) that the threatened injury to the plaintiff outweighs the threatened injury to the defendant; and 4) that granting the preliminary injunction will not disserve the public interest. Sierra Club, Lone Star Chapter v. Fed Deposit Ins. Corp., 992 F.2d 545, 551 (5th Cir. 1993). A plaintiff must prove each of the four elements; failure to prove any one of them results in denial of the motion for preliminary injunction. Enterprise Int'l, Inc. v. Corporation Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985).
3. "[A] preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has 'clearly carried the burden of persuasion' on all four requirements." Lake Charles Diesel, Inc. v. General Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003). As a result, "the decision to grant a preliminary injunction is to be treated as the exception rather than the rule." Miss. Power Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
Substantial Likelihood of Success on the Merits
Takings Claim1. The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation, Phillips v. Washington Legal Found., 118 S.Ct. 1925, 1930 (1998). The existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law. Id.
2. Article I, section 17 of the Texas Constitution provides that "No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made,"
3. The white-tailed deer in question are ferae naturae. Under Texas common and statutory law ferae naturae are presumed to be owned by no one specifically, but by the people generally. State v. Bartee, 894 S.W.2d 34, 41 (Tex.App. — San Antonio 1994, no pet.); TEX. PARKS WILDLIFE CODE § 1.011(a) ("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."). There are no individual property rights in wild animals so long as the animal remains wild, unconfined, and undomesticated. Bartee, 894 S.W.2d at 41. Even one's status as the owner of land upon which the animals ferae naturae are found is insufficient to confer individual property rights to the animals thereon. Nicholson v. Smith, 986 S.W.2d 54, 60 (Tex.App. — San Antonio 1999, no pet.); RESTATEMENT (SECOND) OF TORTS § 508 cmt. a (1977) ("The possession of land does not carry with it possession of the indigenous wild animals that are upon it.").
4. However, it is legally possible for an individual to have qualified property rights in a wild animal. Bartee, 894 S.W.2d at 41. Rights in wild animals can arise when they are legally removed from their natural liberty and made the subject of man's dominion. Nicholson, 986 S.W.2d at 60; Bartee, 894 S.W.2d at 41. These property rights are often referred to as qualified, however, because they are lost if the animal regains its liberty. Bartee, 894 S.W.2d at 41.
5. "It has been uniformly held that there is no property right in any private citizen or group to wild game or to freely-swimming migratory fish." Tlingit Haida Indians of Alaska v. United States, 389 F.2d 778, 784 (Ct.Cl. 1968). Deer, like fish, are ferae naturae, capable of ownership only by possession and control. See id.; Clajon Prod. Corp. v. Petera, 854 F. Supp. 843 (D. Wyo. 1994) ("As a general rule, wild fish, birds and animals are owned by no one. Property rights in them are obtained by reducing them to possession.") (citing United States v. Long Cove Seafood, Inc., 582 F.2d 159, 163 (2d Cir. 1978)).
6. Wild animals are not subject to theft until they become property of an owner. Runnels v. State, 213 S.W.2d 545, 547 (Tex.Cr.App. 1948). By analogy, they are not subject to a governmental taking until they become property.
7. Whether one has secured a property right to an animal ferae naturae will be determined by whether the animal has been reduced to possession, not by the animal's habits. Bartee, 894 S.W.2d at 41 (quoting 3A C.J.S. Animals § 6, at 478-79 (1963)); see also Runnels v. State, 213 S.W.2d 545, 547 (Tex.Cr.App. 1948) (wild animal becomes property and thus subject to theft "upon being reduced to possession"); RESTATEMENT (SECOND) OF TORTS § 508 cmt. a (1977) ("The possessor of the land does not acquire possession of [indigenous wild animals on the land] until he has brought them within his control, as for example by impounding them."). Thus, the mere fact that an animal returns to one's property voluntarily is insufficient to confer a property interest in the animal unless that animal has been or was previously reduced to possession. In addition, merely feeding an animal is insufficient to confer a property interest. RESTATEMENT (SECOND) OF TORTS § 508 cmt. a (1977) ("He does not acquire possession of the animals by providing shelter or food for them or protecting them from the depredations of other animals.").
8. Graves v. Dunlap, 152 P.2d 532 (Wash. 1915), relied on by Plaintiffs, is not controlling. Further, it is distinguishable, and is therefore not persuasive authority. In that case, the deer were kept in an enclosure of fifteen to twenty acres, surrounded by a high woven wire fence. Thus, the deer had been reduced to possession.
9. Ulery v. Jones, 81 Ill. 403, 405 (Ill. 1876), relied on by Plaintiffs, is not controlling. Further, it is distinguishable, and is therefore not persuasive authority. In that case, the buffalo, although once wild, had been brought to the plaintiff's farm when it was six months old, had been reared with his other stock, and was turned into the pasture when it was two.
10. No Plaintiff has reduced the deer to possession or control. No Plaintiff has been granted a permit to possess or otherwise control the deer by the Texas Parks and Wildlife Department. Even if Plaintiffs care for the deer, feed the deer, regard them as family, and even if the deer exhibit an intent to return, that is insufficient to confer a property interest in the deer on any of the Plaintiffs. Accordingly, no Plaintiff has a property right to any of the deer in the Town of Hollywood Park.
11. Because no Plaintiff has a property right in any of the deer, no Plaintiff has a substantial likelihood of success on the merits on their takings claim under the Fifth Amendment of the United States Constitution or under Article I, § 17 of the Texas Constitution.Due Process
1. Procedural due process requirements generally do not apply to legislative enactments by a city council. Jackson Court Condominiums v. City of New Orleans, 874 F.2d 1070, 1074 (5th Cir. 1989). Conduct of a municipal body is likely to be deemed legislative when an elected group, such as a city council, makes a general decision that applies to a large group of interests. Id. Ordinance No. 769 was a legislative decision of broad applicability by the City Council, and hence no procedural due process rights attached. Accordingly, the Plaintiffs have not demonstrated a substantial likelihood of success on the merits on their procedural due process claims.
2. The applicable standard for a substantive due process claim is whether the city council's exercise of its police power had a rational basis. Id. The key to such an inquiry is whether the question is "at least debatable." Id. Further, the courts are free to hypothesize a rational basis for the action. Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 388 (5th Cir. 2001). The City issued certain findings in Ordinance No. 673, passed and approved on April 20, 1999, and in Resolution No. 250, passed and approved October 29, 2002, relating to the excessive deer population. The control of the deer population was a legitimate concern of the city and was debatable. The town's findings adequately establish a rational basis for the Town's action. Accordingly, the Plaintiffs have not demonstrated a substantial likelihood of success on the merits on a substantive due process claim.
3. In order to establish either a substantive or a procedural due process violation by claiming denial of a property right, a plaintiff must first establish a denial of a constitutionally protected property right. Bryan v. City of Madison, 213 F.3d 267, 274 (5th Cir. 2000). Such a showing must be made by reference to state law. Id. at 275. If a plaintiff fails to establish a property right, his or her due process claims fail. Id. at 276. Plaintiffs have not established that they have a property right in the deer, and therefore they have not demonstrated a substantial likelihood of success on the merits.
"Unlawful trespass under color of law"
1. The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, Ker v. California, 374 U.S. 23, 30 (1963), provides in pertinent part that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
2. Section 1983 allows a citizen to sue anyone who "under color of state law or custom, violates the citizen's federal rights. 42 U.S.C. § 1983.
3. Plaintiffs allege that the "entry by the municipality or its agents upon land owned by the plaintiffs . . . constitutes an unreasonable search and seizure and trespass upon plaintiffs' constitutional rights in violation of the fourth and fourteenth amendments to the U.S. Constitution and in violation of the Texas Constitution." Plaintiffs have failed to show that the municipality or its agents have entered or intend to enter any privately owned property. Accordingly, Plaintiffs have not demonstrated a substantial likelihood of success on the merits of this claim.
Violations of Wildlife Code/Challenge to the Ordinance under State Law
1. A Type A general law municipality derives its power from the general laws of the state and may exercise only such authority as is specifically delegated to it by the Legislature. See Payne v. Massey, 196 S.W.2d 493, 495 (Tex. 1946). The Texas Legislature has provided that a Type A general-law municipality "may adopt an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body public." TEX. LOCAL GOV'T CODE § 51.012; see also id § 51.001 (providing generally that "[t]he governing body of a municipality may adopt, publish, amend, or repeal an ordinance, rule, or police regulation that: (1) is for the good government, peace, or order of the municipality. . . .").
2. A municipal ordinance is presumed to be valid and the burden of showing its invalidity rests on the party attacking it. Safe Water Found of Tex. v. City of Houston, 661 S.W.2d 190, 192 (Tex.App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.); Nat'l Found v. City of Fort Worth, 415 F.2d 41, 46 (5th Cir. 1969). If reasonable minds may differ as to whether a particular ordinance has a substantial relationship to the public health, safety, morals, or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the city's police power. See Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex. 1998). When suit is filed attacking an ordinance passed under a municipality's police powers, "[t]he party attacking the ordinance bears an 'extraordinary burden' to show 'that no conclusive or even controversial or issuable fact or condition existed1 which would authorize the municipality's passage of the ordinance." City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 792-93 (Tex. 1982), citing Thompson v. City of Palestine, 510 S.W.2d 579, 581 (Tex. 1974).
3. A city council's legislative findings are cloaked with a presumption of validity and are given much deference. FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 175 (5th Cir. 1996). To successfully challenge this legislative judgment, a plaintiff "must convince the court that the legislative facts on which the [decision] is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Id.
4. In reviewing an ordinance, the court is to consider all the circumstances and determine as a matter of law whether the legislation is invalidated by a relevant statute or constitutional provision. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). The party attacking the ordinance bears the "extraordinary burden" to establish that no conclusive or even controversial or issuable fact or condition existed that would authorize the passage of the ordinance. Id.
5. Section 43.0612 authorizes the Texas Parks and Wildlife Department to "issue to a political subdivision or a property owners' association a permit authorizing the trapping and transporting of surplus white-tailed deer found within the boundaries of the political subdivision or the geographic area in which property subject to the property owners' association is located." TEX. PARKS WILDLIFE CODE § 43.0612(b). Not later than the 30th day before the date of the first planned trapping and transporting of white-tailed deer, a political subdivision shall file with the department an application showing that an overpopulation of white-tailed deer exists within the political subdivision. Id. § 43.0612(c). If the department issues a permit to a requesting political subdivision, the permit shall contain specific instructions detailing the location to which the trapped white-tailed deer are to be transported or transplanted. Id. After receipt of an application, the department may issue to the political subdivision a permit specifying: (1) the location to which trapped white-tailed deer must be transported; and (2) the purpose for which the trapped deer are to be used. Id. § 43.0612(d). The department may deny a permit application if no suitable destination for the trapped white-tailed deer exists. Id. § 43.0612(e). A political subdivision trapping and transporting white-tailed deer under this section must make reasonable efforts to ensure: (1) safe and humane handling of trapped white-tailed deer; and (2) minimization of human health and safety hazards in every phase of the trapping and transporting of white-tailed deer. Id. § 43.0612(f). A permit issued under this section may authorize a political subdivision to trap and transport white-tailed deer only between October 1 of a year and March 31 of the following year, unless the deer pose a threat to human health or safety. Id. § 43.0612(g). A permit issued under this section does not entitle a person to take, trap, or possess white-tailed deer found on any privately owned land without the landowner's written permission. Id. § 43.0612(h). The commission may adopt rules necessary for the implementation of this chapter, including rules that enhance the opportunity to relocate overpopulation of urban deer and relating to required notification, record-keeping, permit conditions, and the disposition of trapped white-tailed deer. Id. § 43.0612(i).
6. When interpreting a statute, the Court's goal is to give effect to the Legislature' intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). Courts construe a statute first by looking to the plain and common meaning of the statute's words. Id.
7. The construction of a statute by an agency charged with its execution is entitled to serious consideration unless the agency's construction is clearly inconsistent with the Legislature's intent. Tex. Water Comm'n v. Brushy Creek Municipal Util. Dist., 917 S.W.2d 19, 21 (Tex. 1996); see also Quick, 7 S.W.3d at 123 ("[T]he contemporaneous construction of a statute by the administrative agency charged with its enforcement is entitled to great weight."); Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993) ("Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute."). The administrative agency that the Legislature entrusted with carrying out the provisions of section 43.0612 has interpreted the law to allow a political subdivision to trap, transport, and process ("TIP") surplus urban white-tailed deer in addition to trapping, transporting, and transplanting ("TTT") surplus deer.
8. Plaintiffs are correct that section 43.0612 does not expressly mention killing or processing deer. In addition, it is placed within subchapter E, entitled "Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds."
9. However, before the addition of section 43.0612, section 43.0611 already existed to permit persons to trap, transport, and transplant urban white-tailed deer. Section 43.0611 is entitled "Urban White-Tailed Deer Removal; Permit Required." This provision was effective December 1, 1995. As the bill analysis for Senate Bill 1582 recognizes, "Deer relocation for the Trapping, Transporting, and Transplanting Program (TTT) is an available option under current law." The bill analysis continues that: "However, the TTT permit requirement for ranchers and other potential recipients of relocated deer to develop and maintain approved wildlife management plans restricts the relocation of deer from urban areas. S.B. 1582 authorizes political subdivisions and property owners' associations to trap and transport white-tailed deer under certain circumstances and with a permit issued by the Texas Parks and Wildlife Department." Thus, the bill analysis suggests that Senate Bill 1582 was intended to provide an alternative to the TTT system already in effect. Moreover, if section 43.0612 only permits trapping, transporting, and transplanting, it would be redundant of section 43.0611 and thus would be surplusage.
10. The Court concludes that the Department's interpretation of section 43.0612 and its regulations are not clearly unreasonable and are not clearly inconsistent with the statutory language or the Legislature's intent. Section 43.0612 refers to trapping and transporting, but does not specify what happens after the trapping and transporting. Rather, it states that the department must issue a permit that "shall contain specific instructions detailing the location to which the trapped white-tailed deer are to be transported or transplanted." TEX. PARKS WILDLIFE CODE § 43.0612(c) (emphasis added). Thus, this section supports the conclusion that the deer may be transplanted, but that other options also exist. Further, section 43.0612 provides that "the department issue to the political subdivision or property owners' association a permit specifying: (1) the location to which trapped white-tailed deer must be transported; and (2) the purpose for which the trapped deer are to be used." Id. § 43.0612(d). Again, this suggests that the statute allows for "purposes" for the deer other than transplantation. Last, in granting rule-making authority to the Commission, the Legislature expressly allowed the Commission to issue "rules necessary for the implementation of this chapter, including rules which enhance the opportunity to relocate overpopulation of urban deer and relating to required notification, record-keeping, permit conditions, and the disposition of trapped white-tailed deer." Id. § 43.0612(i). Again, the term "disposition" is much broader than transplantation. That the Department was given authority to provide rules concerning the "disposition" of deer in addition to the authority to issue rules that "enhance the opportunity to relocate overpopulation of urban deer" reasonably allows the Department to issue rules regarding more than the mere transplantation or relocation of trapped deer.
11. The bill's author stated before the Senate Natural Resources Committee that the bill would allow deer to be processed for consumption by the inmate population and characterized the bill as "talking about feeding venison to inmates." Hearing before Senate Natural Resources Committee, April 22, 2003. The intent of an individual legislator, even a bill's principal author, is at most persuasive authority and is not controlling legislative history. Gen. Chem. Corp. v. de la Lastra, 852 S.W.2d 916, 923 (Tex. 1993). However, Plaintiffs have not pointed to any legislative history that would show that the Departmental regulations contravene legislative intent.
12. Thus, although section 43.0612 does not expressly authorize the killing or processing of trapped urban white-tailed deer, it does not prohibit it, and the Department's regulations do not appear to conflict with the legislative intent. Accordingly, Plaintiffs have not demonstrated a substantial likelihood of success on their claims that the ordinance violates the Texas Wildlife Code.
13. Plaintiff's complaint alleges violations of Texas Parks Wildlife Code sections 43.15 l(a) and 43.152. No evidence was submitted at the preliminary injunction hearing regarding these provisions. In any event, it is undisputed that the Town has not applied for a permit under these sections. Accordingly, the Court concludes that the requirements of section 43.151 and 43.152 do not apply, and thus Plaintiffs have not demonstrated a substantial likelihood of success on the merits of this claim.