Opinion
04-21-00466-CV
02-08-2023
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. and Karla Waples, Appellants v. BANDERA WRANGLERS, Appellee
From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CVOC-20-0000171 Honorable M. Rex Emerson, Judge Presiding.
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Lori I. Valenzuela, Justice.
This appeal comes before this court after the trial court granted appellee's plea to the jurisdiction. Because we find appellants lack standing, we affirm.
Background
Appellant People for the Ethical Treatment of Animals, Inc. ("PETA") is an organization with a stated dedication of protecting animals from abuse, neglect, and cruelty. PETA works to achieve its mission through public education, cruelty investigations, research, animal rescues, legislation, special events, celebrity involvement, and protest campaigns. Appellant Karla Waples is a resident of Austin, Texas, and a former PETA employee. Appellee Bandera Wranglers is an entity that hosts an annual festival featuring a feral hog catch contest in Bandera, Texas. Appellants seek to enjoin the hog catch.
Bandera Wranglers's Hog Catch
The hog catch involves approximately eighty feral hogs each year. The feral hogs are caught by local ranchers, farmers, or other persons who loan, donate, or sell the hogs to Bandera Wranglers. Members of the public are eligible to compete in the hog catch. The object of the hog catch is to catch and bag a hog in a burlap sack and drag the bagged pig across a designated line in the fastest time possible. During the hog catch, a team of two human adults or teenagers chase and attempt to catch and bag an adult or juvenile hog inside a fully-enclosed arena, surrounded by spectators and other hogs held in adjacent pens. A children's event also occurs where young children chase a large group of piglets in an effort to touch any piglet as quickly as possible. During the event, color commentators narrate for the spectators' benefit. Appellants allege the hog catch inflicts cruelty upon the hogs; results in the hogs being subject to pain, fear, and anxiety; and denies the hogs health and healthcare.
Event participants are not subject to any written rules requiring personal protective equipment, such as masks, eye goggles, ear protection, or gloves. The hogs are not treated by a licensed veterinarian and besides hosing the hogs' skin with untreated water, Bandera Wranglers does not do anything to sanitize the hogs. Appellants allege that, according to the Texas Animal Health Commission, approximately ten percent of feral hogs in Texas carry brucellosis, and about half of all human cases of brucellosis reported in 2019 in Texas were of the strain originating in pigs. According to the United States Department of Agriculture, brucellosis is an infectious bacterial disease that can cause a range of temporary or permanent symptoms, including fever, sweats, malaise, anorexia, headache, muscle and joint pain, fatigue, arthritis, testicular swelling, swelling of the heart, and swelling of the liver or spleen. Feral hogs potentially carry numerous other zoonotic diseases, including campylobacter, leptospirosis, salmonella, tularemia, influenza A, toxoplasma gondii, the pseudorabies virus, and vesicular stomatitis.
A zoonotic disease is a disease that is transmissible from animals to humans under natural conditions.
Waples's Alleged Injury
Waples has never lived in Bandera and never participated in the hog catch. However, Waples alleges that she has a present, genuine fear that appellees' continued hosting of the hog catch will result in a zoonotic disease outbreak in Texas that would likely cause her or her husband damages because of either infection, or an outbreak-related economic recession resulting in reduced work opportunities. Waples's husband, who is not a party to this appeal, was furloughed as a result of the COVID-19 pandemic, resulting in actual economic harm to Waples's household. Waples further asserts that she has a present, genuine fear that Bandera Wranglers's continued hosting of the hog catch will condition or desensitize persons to violence by exposing them to acts of cruelty to animals, thereby increasing Waples's risk of being a victim of violent crime in Texas.
PETA's Alleged Injury
PETA alleges that it devotes its charitable resources to educating and persuading the public to voluntarily refrain from participating in otherwise legal conduct that nevertheless harms animals (such as eating meat or wearing leather), and to documenting technically legal but troubling treatment of animals, in order to, among other goals, push for revisions to existing regulations and laws for the benefit of the animals. PETA asserts that it does not, absent exceptional circumstances, devote its charitable resources to educating and persuading the public to refrain from illegal conduct, because the law itself already prohibits such conduct, incentivizes the public to refrain from such conduct, and provides mechanisms for public authorities to investigate and prosecute such conduct. However, PETA asserts that when it is presented with evidence of illegal, severe mistreatment of animals, PETA's mission requires it to divert charitable resources from its normal programs to efforts to end the illegal conduct.
According to PETA, the mistreatment the hogs suffer during the hog catch is sufficiently severe that it impairs PETA's mission, and PETA is required to address it, even though that means diverting resources from normal programs and operations. PETA asserts the public mistreatment hogs suffer during the hog catch impairs PETA's mission to protect animals because it both increases the quantity of animals being abused and makes it more difficult to persuade members of the public that cruelty to animals is unacceptable. PETA asserts that it diverted many hours of paid employee time and expended many organizational dollars in efforts to convince Bandera Wranglers and public authorities to end the hog catch and to counteract the public's misimpression that the hog catch is legal or, at least, not cruel. PETA alleges that but for Bandera Wranglers' hosting the hog catch, the resources PETA had to devote to addressing the hog catch would have been spent on PETA's ordinary course of charitable activities.
On June 8, 2020, PETA filed an original petition seeking declaratory and injunctive relief against Bandera Wranglers. On November 19, 2020, PETA filed its first amended petition adding Waples as a plaintiff and asserting causes of action including statutory and common law nuisance claims. On July 23, 2021, Bandera Wranglers filed a plea to the jurisdiction seeking dismissal on the basis of a lack of standing. On October 5, 2021, the trial court signed a written order that granted Bandera Wranglers' plea to the jurisdiction, dismissing all of appellants' claims and causes of action for lack of standing. This appeal followed.
Standard of Review
"Constitutional standing is a prerequisite for subject matter jurisdiction." Tex. Bd. of Chiropractic Examiners v. Tex. Med. Ass'n, 616 S.W.3d 558, 566 (Tex. 2021). "The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a 'justiciable interest' in its outcome." Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015). It "requires a concrete injury that is both traceable to the defendant's conduct and redressable by court order." Tex. Bd. of Chiropractic Examiners, 616 S.W.3d at 567. "[A] challenge to standing turns on the plaintiff's claimed injury: whether the alleged injury is both concrete and particularized and actual or imminent, not conjectural or hypothetical; whether the alleged injury is fairly traceable to the defendant's challenged action; and whether it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 700 (Tex. 2021). The threshold inquiry into standing does not depend on the merits of the plaintiff's contention that particular conduct is illegal. Id. at 696.
We review constitutional standing de novo. Sneed, 465 S.W.3d 180. The burden is on the plaintiff to affirmatively demonstrate the trial court's jurisdiction. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). When assessing a plea to the jurisdiction, our analysis begins with the live pleadings. Id. We may also consider evidence submitted to negate the existence of jurisdiction-and we must consider such evidence when necessary to resolve the jurisdictional issue. Id. We construe the plaintiff's pleadings liberally, taking all factual assertions as true, and look to the plaintiff's intent. Id.
Organizational Standing
PETA asserts standing based on an alleged organizational injury unique to PETA under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). To demonstrate organizational standing in federal courts, a plaintiff must demonstrate (1) the defendant's unlawful activities injured plaintiff's interest in promoting or carrying out its organizational mission ("mission impairment"), and (2) the plaintiff diverted significant organizational resources to counteract the injury ("diversion of resources"). See id.; see also, e.g., People for the Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of W. Maryland, Inc., 843 Fed.Appx. 493, 495 (4th Cir. 2021) (per curiam); N.A.A.C.P. v. City of Kyle, Tex., 626 F.3d 233, 238 (5th Cir. 2010).
Although organizational standing has been recognized in federal courts for forty years, no Texas state court has recognized the concept of organizational standing-one sister court has outright rejected its adoption outside the context of Fair Housing Act claims. See Tex. Dep't of Family & Protective Services v. Grassroots Leadership, Inc., No. 03-18-00261-CV, 2018 WL 6187433, at *5 (Tex. App.-Austin Nov. 28, 2018) ("This is not a Fair Housing Act case, and we decline to expand Havens beyond such claims."), rev'd in part on other grounds, 646 S.W.3d 815 (Tex. 2022). Nevertheless, PETA urges us to adopt organizational standing "because it is consistent with general Texas law of standing (which already mirrors federal standing law), and because nearly 40 years' worth of 'jurisprudential experience of the federal courts on this subject' proves the test, first articulated in 1982, is fair and workable in the courts in a wide variety of cases." We decline to do so.
Because the organization did not appeal our sister court's judgment, organizational standing was not before the Supreme Court of Texas.
We begin with the principle that "[m]ajor changes in established law should be made by our Supreme Court." Calhoun v. Pasadena Indep. Sch. Dist., 496 S.W.2d 131, 132 (Tex. Civ. App.-Houston [14th Dist.] 1973, writ ref'd n.r.e.). Havens creates an entirely new standing test (mission impairment and diversion of resources) that, if adopted, supplants Texas's longstanding rule (concrete injury, traceability, and redressability). In the trial court, PETA argued it was relieved from establishing standing in the same way as individuals on the basis that organizational standing has "different elements." Moreover, PETA's assertion that federal courts have forty years of jurisprudential experience applying organizational standing also cuts the other way: Texas courts have had forty years of opportunity to adopt organizational standing but have not. Relying exclusively on organizational standing as a basis for jurisdiction, we hold PETA failed to affirmatively demonstrate the trial court's jurisdiction. See Heckman, 369 S.W.3d at 150.
Individual Standing
Waples argues she maintains standing based on her assertion of a statutory nuisance claim. See Tex. Civ. Prac. & Rem. Code § 125.0015(a)(24) ("A person who maintains a place to which persons habitually go for the following purposes and who knowingly tolerates the activity and furthermore fails to make reasonable attempts to abate the activity maintains a common nuisance . . . disorderly conduct as described by Section 42.01, Penal Code."); see also Tex. Penal Code § 42.01(a)(2) ("A person commits an offense if he intentionally or knowingly . . . makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace.").
Specifically, Waples asserts she "has suffered a cognizable statutory injury in that the hog catch exposes her to increased threats of contagion and crime, and [she] genuinely and subjectively experiences fear of those threats. [Her] individualized fear, combined with the reality of the threat and her Texas residency, constitutes a sufficient concrete and particularized statutory injury because those facts establish her eligibility under the statute, and the statutory eligibility criteria are within constitutional bounds."
Applicable Law
A plaintiff's alleged injury must be concrete. Grassroots Leadership, Inc. v. Tex. Dep't of Family & Protective Services, 646 S.W.3d 815, 820 (Tex. 2022). "Plaintiffs must allege 'threatened or actual'-not hypothetical-injuries." Id. A substantial risk of injury may satisfy the concrete-injury requirement for injunctive relief, if that risk is based on a reasonable inference from specifically alleged, current facts. Id. An injury is not concrete if it is merely a "generalized grievance" shared by the public at large. Andrade v. NAACP of Austin, 345 S.W.3d 1, 7-8 (Tex. 2011). The "generalized grievance" bar to standing is constitutional. Id. "The line between a generalized grievance and a particularized harm is difficult to draw, and it varies with the claims made." Id. at 8.
Analysis
Taking Waples's factual allegations as true, as we must, she cannot establish a substantial risk of either an outbreak of zoonotic disease or increased violent crime because of the hog catch. For example, she pleads no facts demonstrating either having occurred in the nearly two decades that the hog catch has been held. Waples also cannot show an actual or imminent threat of either zoonotic contagion or increased violent crime as a result of the hog catch. See Data Foundry, 620 S.W.3d at 700. Stated differently, the alleged health and safety threats posed by the hog catch (and Waples's concomitant fears) are hypothetical-particularly given Waples's residence approximately 120 miles away from the location of the hog catch. Grassroots Leadership, 646 S.W.3d at 820.
Additionally, to the extent Waples asserts the hog catch results in an increased threat of zoonotic contagion and crime, those allegations "amount only to a generalized grievance shared in substantially equal measure by all or a large class of citizens." Andrade, 345 S.W.3d at 15. We accordingly hold Waples cannot establish a concrete injury.
Conclusion
We overrule appellants' issues and affirm the judgment of the trial court dismissing appellants' claims for lack of standing.