The Texas 11th Court of Appeals recently issued an opinion in Mullins v. McWhirter, a case that arose from a fatal accident in which a motorcyclist collided with a cow on a highway in Texas in 2020. Although the jury initially found the cattle owner liable, the appellate court reversed and rendered judgment, holding that the evidence was legally insufficient to show the owner knowingly permitted the animal to roam at large.
Background
The case stems from a fatal nighttime collision between a motorcycle and a black cow on U.S. Highway 84 in rural Coleman County, TX. Shortly after 1:30 a.m. on July 19, 2020, Rowdy Roy Escobar was returning to Abilene, TX, after assisting with a nearby wildfire when his motorcycle struck a cow owned by Charlotte Mullins. Escobar suffered fatal injuries.
Court documents showed that Mullins and her late husband had long run cattle on leased pastureland adjacent to Highway 84. After her husband’s death in 2016, Mullins assumed full responsibility for the herd, including maintenance of perimeter fencing. At the time of the accident, she kept 47 head on the west side of the highway. Mullins was in Bartonville, TX, roughly 200 miles away, on the night of the collision and testified that she had inspected the fences a week earlier and believed them to be suitable. She acknowledged being aware of a wildfire in the area that evening and that fires can “spook” cattle, but said she was reassured by her sister-in-law, who reported seeing no cattle on the road.
Testimony at trial included observations from neighbors, law enforcement and an expert in livestock fencing. Coleman County Sheriff Les Cogdill recounted three incidents in which James Mullins’ cattle escaped between 2008 and 2016, none of which were attributable to Charlotte. Expert witness Bob Kingsbery inspected the fence ten months after the accident and opined that its condition made an escape “inevitable.” However, he acknowledged he did not know how or where the cow actually exited, nor whether Mullins knowingly allowed it.
The jury found Mullins liable and awarded damages to Escobar’s minor child and estate. The appellate court was tasked with determining whether legally sufficient evidence supported the finding that Mullins knowingly permitted the cow to roam at large. Mullins appealed the decision to the appeals court.
Recent decision
The court began its analysis with Mullins’ first issue, which challenged the legal sufficiency of the evidence supporting the jury’s finding of liability under Section 143.102 of the Texas Agriculture Code. Attorneys for Mullins argued there was no evidence she “knowingly permitted” her cow to roam at large on Highway 84, emphasizing that the record contains no proof of how the cow escaped, how long it had been out or that Mullins knew it was on the roadway before the collision.
The court first outlined the governing law. Texas generally imposes no common-law duty on livestock owners to fence in their animals; the duty to restrain livestock is “purely statutory in nature,” arising from specific provisions such as Section 143.102. Guided by the Texas Supreme Court’s decision in Pruski v. Garcia and the First Court of Appeals’ analysis in Arraby Properties, LLC v. Brown, the court noted that Section 143.102 applies to collisions on state highways and provides the exclusive standard of civil liability in this context.
In Pruski v. Garcia, the Texas Supreme Court held that livestock owners may be liable for collisions on state or U.S. highways only if plaintiffs prove the “knowing” mental state required by Section 143.102—meaning the owner was aware their conduct was reasonably sure to allow the animal to roam at large. The court clarified that “permit” requires more than negligence and that a temporary escape does not constitute running at large. Applying this standard in Arraby Properties LLC v. Brown, the 1st Court of Appeals reversed a plaintiff’s judgment, finding no evidence that the owners actually knew the cow was loose.
Section 143.102 prohibits livestock owners from “knowingly permitting” animals to roam unattended on a highway right-of-way. As outlined in Pruski, “knowingly” carries the meaning that the owner must be aware that their conduct is reasonably certain to allow the animal’s escape. The term “permit” requires more than negligence and historically refers to livestock allowed “as a matter of course” to roam freely, not an isolated or temporary escape beyond the owner’s knowledge or control.
Turning to the facts, the court found that Section 143.102 does not impose a greater duty on absentee livestock owners or require them to patrol highways during events like wildfires; the only duty is not to knowingly permit animals to roam at large. A fire-spooked cow would amount only to a temporary escape.
Although an expert testified that Mullins’s fence was inadequate, the court—applying Pruski and Arraby—held that poor fencing shows mere negligence, not knowing permission. No evidence showed Mullins knew the cow was loose, and prior escapes were remote, caused by others or unexplained. At most, the court said, this was a scintilla of evidence.
Because there was no legally sufficient evidence that Mullins knowingly permitted her cow to roam at large on Highway 84 as a matter of course, the court reversed the judgment from the trial court and ruled in favor of Mullins. — Charles Wallace, WLJ contributing editor
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