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. v. Conway Waak Jr. and Marlene Waak D/B/A Carmine Charolais Ranch and Carmine Charolais Ranch

Opinion issued August 21, 2018

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-17-00755-CV
———————————
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, HEIRS OF THE ESTATE
OF RAUL AMAPRO ZUNIGA ORTIZ JR., Appellants
V.
CONWAY WAAK JR. AND MARLENE WAAK, D/B/A CARMINE
CHAROLAIS RANCH, AND CARMINE CHAROLAIS RANCH, Appellees

On Appeal from the 155th District Court
Fayette County, Texas1

1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Third District of Texas. Misc. Docket No. 17-9128 (Tex. Sept. 28, 2017); see also
TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases).
Because we do not find any controlling authority from the Austin Court of Appeals
for the issues raised, we apply precedent of this Court. See TEX. R. APP. P. 41.3
 Trial Court Case No. 2014V-262

OPINION

Raul Amparo Zuniga Rodriguez, Ana Maria Ortiz Martinez, and Juana

Guadalupe Martinez (the Zunigas) filed suit against Conway Waak, Jr. and Marlene

Waak, asserting claims arising from the death of Raul Amparo Zuniga Ortiz, Jr.

(Zuniga). The Waaks sought summary judgment, arguing that the Zunigas’ claims

were governed by the Farm Animal Activities Act (FAAA or the Act).2 The trial

court granted summary judgment in full, holding the Zunigas’ claims were barred

by the Act. In three issues on appeal, the Zunigas argue that the Act does not bar

their claims.

We reverse and remand.

Background

The Waaks own a ranch in Fayette County, Texas. They breed, raise, and sell

purebred Charolais and Braford cattle on the ranch. Both have worked with cattle

their entire lives.

Zuniga began working for the Waaks in 2005. He moved onto the ranch and

began working for the Waaks full time in 2007 or 2008. His responsibilities involved

(requiring reviewing court to “decide the case in accordance with the precedent of
the transferor court” when courts’ precedents are inconsistent).
2
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 87.001–.005 (West 2017).
2
feeding, moving, and monitoring the cattle. He frequently performed those duties

alone.

Zuniga died on October 2, 2013. The day before he died, the Waaks instructed

Zuniga to move some cattle to a different pasture. Conway Waak asked Zuniga if

he needed help. Zuniga said he did not. There were about twenty cattle to be moved,

including one calf and one bull. The bull had been with the cows to breed for about

two to three months. On October 2, Zuniga began to move the cows to a different

pasture. Zuniga had moved all of the cows except for the bull, the calf, and the calf’s

mother before he was eventually found dead from severe blunt-force impact wounds

determined to have been caused by the bull.

The Waaks did not carry workers’ compensation insurance for their

employees. The Zunigas brought suit against the Waaks to recover damages for

Zuniga’s personal injuries and death. In their live petition, the Zunigas asserted

wrongful death and survival claims. Specifically, the family asserted that the Waaks

were negligent by failing to provide proper safety equipment and failing to

adequately warn Zuniga of dangers existing on the premises, among other things.

The Waaks eventually filed a partial motion for traditional summary

judgment. In it, the Waaks argued that the FAAA—which provides liability

protection for injuries arising out of certain farm activities in the form of a waiver of

liability—applied to Zuniga as an employee of the ranch and thereby governed the

3
Zunigas’ claims and waived the Waaks’ liability to the Zunigas. The Waaks

recognized in the motion that the Act has exceptions to the waiver of liability. They

asked the court to grant summary judgment on the Zunigas’ claims except to the

extent that the claims fell within the exceptions to the FAAA.

In their summary judgment motion, the Waaks acknowledged Dodge v.

Durdin, 187 S.W.3d 523 (Tex. App.—Houston [1st Dist.] 2005, no pet.), a case from

this Court which held that the Equine Act, the predecessor to the FAAA, did not

apply to employees. The Waaks urged the trial court not to adopt the reasoning of

the case, critiquing the justifications this Court used to reach our holding. They

argued that Zuniga was an independent contractor and, as such, a “participant”

engaged in a farm animal activity under the FAAA when he died, and thus their

liability for claims for his injuries was waived.

The Zunigas responded to the motion. They argued that Zuniga was an

employee of the Waaks. As a result, they urged the trial court to apply the reasoning

from this Court in Dodge and to rule that, like the Equine Act, the FAAA does not

apply to their claims and does not waive the Waaks’ liability for Zuniga’s injuries.

They are, instead, that Zuniga was a “farm and ranch employee” for whom the

Waaks were required to maintain workers compensation insurance and did not,

subjecting them to the Zunigas’ common law claims.

4
 The trial court ruled that the Zunigas’ claims were governed by the FAAA

and that the Act waived the Waaks’ liability to the Zunigas. It granted complete

summary judgment in favor of the Waaks on their claims. The Zunigas appealed.

Standard of Review

A summary-judgment movant must conclusively establish its right to

judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.

1986). Because summary judgment is a question of law, we review a trial court’s

summary judgment decision de novo. See Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

To prevail on a traditional summary-judgment motion asserted under Rule

166a(c), a movant must prove that there is no genuine issue regarding any material

fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c);

Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A matter

is conclusively established if reasonable people could not differ as to the conclusion

to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816

(Tex. 2005).

A party moving for traditional summary judgment on a claim for which it does

not bear the burden of proof must either (1) disprove at least one element of the

plaintiff’s cause of action or (2) plead and conclusively establish each essential

element of an affirmative defense to rebut the plaintiff’s cause. See Am. Tobacco

5
Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). If the movant meets its

burden, the burden then shifts to the non-movant to raise a genuine issue of material

fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d

195, 197 (Tex. 1995).

Applicability of the FAAA

In their first issue, the Zunigas argue that the trial court erred by determining

that their claims were waived by the FAAA’s waiver of liability. In their second

issue, they argue that Zuniga was not a “participant” in a farm animal activity as that

term is defined within the Act, but an employee of the Waaks, and therefore, under

Dodge and other law, the Act does not bar their claims. In their third issue, they

argue that they raised at least a fact issue as to whether the Waaks were exempt from

the application of the Texas Workers’ Compensation Act and were, therefore,

required to maintain workers’ compensation insurance for their employees and did

not. The first two issues concern the proper construction of the FAAA and our

interpretation of its predecessor, the Equine Act, in Dodge. The third concerns the

construction of the Workers’ Compensation Act and its application to this case. All

three issues require us to construe the applicable statutes.

A. Standard of Review of Statutory Interpretation

Statutory interpretation is subject to de novo review. Lippincott v.

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). Statutory language must be analyzed

6
in its context, considering both the specific sections at issue and the statute as a

whole. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). “If a

statute is worded clearly, we must honor its plain language, unless that interpretation

would lead to absurd results.” Combs v. Health Care Servs. Corp., 401 S.W.3d 623,

629 (Tex. 2013). We interpret a statute by applying the plain meaning of the words

used in the statute. See Lippincott, 462 S.W.3d at 509. “We read statutes

contextually to give effect to every word, clause, and sentence, because every word

or phrase is presumed to have been intentionally used with a meaning and a

purpose.” Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018).

We rely solely on the plain meaning of the words used “unless a different meaning

is supplied by legislative definition or is apparent from the context, or the plain

meaning leads to absurd results.” Id.; Tex. Lottery Comm’n v. First State Bank of

DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); accord Tanya L. McCabe Tr. v. Ranger

Energy LLC, 531 S.W.3d 783, 794 (Tex. App.—Houston [1st Dist.] 2016, pet.

denied). “When a statute’s language is clear and unambiguous, it is inappropriate to

resort to rules of construction or extrinsic aids to construe the language.” City of

Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008); accord Molinet v. Kimbrell,

356 S.W.3d 407, 414 (Tex. 2011).

“A court may not judicially amend a statute and add words that are not

implicitly contained in the language of the statute. Only when it is necessary to give

7
effect to the clear legislative intent can we insert additional words into a statutory

provision.” Jones v. Liberty Mutual Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988)

(internal citations omitted); see also City of Rockwall, 246 S.W.3d at 629; Lee v.

City of Houston, 807 S.W.2d 290, 294–95 (Tex. 1991) (observing, “It is the

obligation of the legislature, rather than the courts, to develop a workable definition

of [a given statutory term]”). However, “[w]hile ‘it is not for courts to undertake to

make laws “better” by reading language into them,’ we must make logical inferences

when necessary ‘to effect clear legislative intent or avoid an absurd or nonsensical

result that the Legislature could not have intended.’” Castleman, 546 S.W.3d at 688.

“[W]e consider the context and framework of the entire statute and meld its words

into a cohesive reflection of legislative intent.” Rodriguez, 547 S.W.3d at 839

(quoting Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518

S.W.3d 318, 326 (Tex. 2017)). We also “construe statutes so as to harmonize [them]

with other relevant laws, if possible.” Id. at 838–39.

B. The Farm Animals Activities Act

The FAAA was originally known as the Equine Act and waived liability of

“equine activity sponsors” and “equine professionals,” among other persons, for

damages resulting from dangers or conditions that are an inherent risk of an equine

activity. See Dodge, 187 S.W.3d at 527. It has since been updated and renamed to

apply to a broader array of persons, animals, and activities. See Act of May 23,

8
2011, 82nd Leg., R.S., ch. 896, 2011 Tex. Gen. Laws 2288, 2288–90 (codified at

TEX. CIV. PRAC. & REM. CODE ANN. §§ 87.001–.005 (West 2017)). Most

importantly, with the update, the Act applies to farm animal activities related to

cattle. See TEX. CIV. PRAC. & REM. CODE ANN. § 87.001(2-a)(B) (West 2017).

As updated, section 87.003 of the FAAA waives liability against “any person,

including a farm animal activity sponsor, farm animal professional, livestock

producer, livestock show participant, or livestock show sponsor,” 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.” Id. § 87.003

(West 2017). Section 87.003 explicitly identifies “dangers or conditions that are an

inherent risk of a farm animal activity” to include “the propensity of a farm animal

or livestock animal to behave in ways that may result in personal injury or death to

a person on or around it,” and “the potential of a participant to act in a negligent

manner that may contribute to injury to the participant or another, including failing

to maintain control over a farm animal or livestock animal or not acting within the

participant’s ability.” Id. § 87.003(1), (5).

Section 87.001 defines “engages in a farm animal activity” to mean “riding,

handling, training, driving, loading, unloading, assisting in the medical treatment of,

9
being a passenger on, or assisting a participant or sponsor with a farm animal.” Id.

§ 87.001(1).

“Farm animal activity,” in turn, is defined to include a broad number of

activities. See id. § 87.001(3). It includes, for example, training or teaching

activities that involve a farm animal, boarding a farm animal, “riding, inspecting,

evaluating, handling, loading or unloading a farm animal belonging to another,” and

providing medical treatment for a farm animal. Id. § 87.001(3)(B)–(D), (G).

“Farm animal activity sponsor” is defined as including “a person or group who

sponsors, organizes, or provides the facilities for a farm animal activity, including

facilities for a pony club, 4-H club, hunt club, therapeutic riding program, or high

school or college class, program, or activity, without regard to whether the person

operates for profit.” Id. § 87.001(4)(A).

“Farm animal professional” is defined as “a person engaged for

compensation: (A) to instruct a participant or rent to a participant a farm animal for

the purpose of riding, driving, or being a passenger on the farm animal; (B) to rent

equipment or tack to a participant; (C) to examine or administer medical treatment

to a farm animal as a veterinarian: or (D) to provide veterinarian or farrier services.”

Id. § 87.001(5).

“Livestock producer” is defined as “a person who owns, breeds, raises, or

feeds livestock animals.” Id. § 87.001(6-a).

10
 “Participant” is defined to mean “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).

Finally, section 87.004 provides certain exceptions to the exemption from

liability provided to a “person” defined by section 87.003. See id. § 87.004 (West

2017). In relevant part, it limits the circumstances under which “[a] person,

including a farm animal activity sponsor, farm animal professional, livestock show

participant, or livestock show sponsor, is liable for property damage or damages

arising from the personal injury or death caused by a participant in a farm animal

activity or livestock show,” if, among other things, “the person provided the farm

animal or livestock animal and the person did not make a reasonable and prudent

effort to determine the ability of the participant to engage safely in the farm animal

activity . . . and determine the ability of the participant to safely manage the farm

animal or livestock animal, taking into account the participant’s representations of

ability.” Id. § 87.004(2).

C. Zuniga’s Status as a “Participant” Under the FAAA

The parties disputed before the trial court whether Zuniga was a “participant”

in a “farm animal activity” for which liability was waived for the Waaks under the

terms of the FAAA.

11
 With the statutory terms set out above in mind, we hold that Zuniga was not

a “participant” in a farm animal activity as contemplated by the FAAA. First, we

observe that the definition of a “farm animal activity sponsor” in section 87.001(4)

does not expressly or impliedly include a ranch owner who raises livestock for

consumption and employs ranch hands to handle them. A ranch owner, such as the

Waaks, could be exempted from liability for the personal injuries and death of a

plaintiff, such as Zuniga, under the FAAA only as a “livestock producer,” or “a

person who owns, breeds, raises, or feeds livestock animals,” and then only if the

plaintiff who was injured or killed was a “participant” in a farm animal activity. See

id. §§ 87.001(6-a), (9), 87.003.

We further observe that the definition of a “participant” in a farm animal

activity in section 87.001(9) does not include a person employed on a ranch or farm

for compensation to perform the activities of a ranch hand, as Zuniga was here.

Rather, a participant is clearly defined by the plain meaning of the statute as a person

who engages in the activity as “an amateur or professional,” a person who pays for

the activity, or a person who participates in a “farm animal activity” for free. A

“farm animal professional” is then further defined as “a person engaged for

compensation: (A) to instruct a participant or rent to a participant a farm animal for

the purpose of riding, driving, or being a passenger on the farm animal; (B) to rent

equipment or tack to a participant; (C) to examine or administer medical treatment

12
to a farm animal as a veterinarian: or (D) to provide veterinarian or farrier services.”

Id. § 87.001(5).

We “may not judicially amend a statute and add words that are not implicitly

contained in the language of the statute.” Jones, 745 S.W.2d at 902. Thus, Zuniga—

as a hired ranch hand—was not a “participant” in a farm animal activity, as defined

by the FAAA; and, therefore, the FAAA does not apply to this case and waive the

Waaks’ liability for the Zunigas’ claims.

Our construction of the FAAA in this case accords with our construction of

the predecessor statute, the Equine Act, in Dodge, 187 S.W.3d 527–30, which we

are bound to follow as precedent under the doctrine of stare decisis. See Sw. Bell

Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008); Martinez v. Houston

McLane Co., LLC, 414 S.W.3d 219, 222–23 (Tex. App.—Houston [1st Dist.] 2013,

pet. denied) (observing stare decisis promotes efficiency, fairness, and legitimacy in

judicial system and allows parties to justifiably rely on our past opinions, promoting

predictability in law); see also Willis v. BPMT, LLC, 471 S.W.3d 27, 33 (Tex.

App.—Houston [1st Dist.] 2015, no pet.) (stating, “‘the doctrine of stare decisis has

its greatest force’ in the area of statutory construction”) (quoting Mitchell, 276

S.W.3d at 447).3 This is because if the Legislature does not modify the statute to

3
We note, however, that “the doctrine [of stare decisis] is not absolute.” Sw. Bell
Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008). When the reasons for
adhering to our prior holding no longer further the interests of “efficiency, fairness,
13
abrogate the court’s interpretation, “there is little reason for the court to reconsider

whether its decision was correct.” Mitchell, 276 S.W.3d at 447. Here, the

Legislature did not abrogate the parts of the statute material to our determination; it

merely extended relevant provisions to livestock producers and participants in farm

animal activities involving livestock. We, therefore, turn to Dodge.

In Dodge, brought under the predecessor statute, the Equine Act, a stable

employee brought a negligence action against her employer and supervisor at the

stables, claiming that she had sustained an injury when an untamed horse kicked her

in the abdomen as she was administering an oral deworming medication to it, as

directed by her employer and supervisor. 187 S.W.3d at 525. The injured plaintiff

asserted that the Equine Act did not preclude the defendants’ liability to her because

she was an employee rather than a participant in an equine activity as defined under

the Act. Id. As here, at the time of the injury, the plaintiff’s employer did not carry

workers’ compensation insurance. Id. at 526.

We held in Dodge that employees of the owner of a farm animal were not

included in the definition of participant under the Equine Act. Id. at 530. We

presented three grounds to support our holding: statutory construction of the

and legitimacy,” and when “the general interest will suffer less” from a departure in
the law than from strict adherence, then we should depart from our prior holding.
Id. “[S]tare decisis does not compel perpetuating an interpretation of [a statute] that
. . . cannot be discerned from the text of the statute.” Marsh USA Inc. v. Cook, 354
S.W.3d 764, 779 (Tex. 2011).
14
definition of “participant,” legislative history, and the consequences of alternative

constructions. Id. at 527–30.

For statutory construction, we focused on the phrase “without regard to

whether . . . the person pays for the activity or participates in the activity for free”

within the definition of “participant.” Id. at 528 (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 87.001(9)). We reasoned that, because employees are paid for

activities rather than paying or doing them for free, this phrase suggested that the

definition was limited to consumers, not employees. Id.

We supported our reasoning as to the Legislature’s intent in enacting the

Equine Act by reference to the legislative history of the statute and the circumstances

under which it was enacted. We observed that a legislative report had cited the

negative impact of liability for horses on the tourism industry, which “‘ha[d] been

adversely affected by the expansion of liability as well as charitable, philanthropic

and educational organizations,’” and was “silent about any intent to affect the

employer-employee relationship.” Id. at 528–29 (citing SENATE NATURAL RES.

COMM., BILL ANALYSIS, Tex. H.B. 280, 74th Leg., R.S. (1995)). We reasoned that

“[t]he statute as a whole suggests that the nature and object to be obtained by the

Equine Act [was] to protect the tourism industry, not to abrogate the regulation of

employer-employee relationships in Texas, as defined in the Labor Code.” Id. at 529.

15
 We further reasoned that “the Equine Act lacks express legislative intent to

abrogate employer duties as delineated in the Workers’ Compensation Act.” Id. at

530. We stated, “Employers owe certain nondelegable and continuous duties to

employees acting in the course and scope of their duties, including the duties to warn

about the hazards of employment, to supervise activities, to furnish a reasonably safe

workplace, and to furnish reasonably safe instrumentalities with which to work.” Id.

at 529 (citing Farley v. M.M. Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975)). And

we pointed out that the Legislature enacted the Texas Workers’ Compensation Act

in the Labor Code in response to the needs of workers who were increasingly being

denied recovery for injuries received in “escalating industrial accidents.” Id. (citing

Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000)).

We specifically observed that the Workers’ Compensation Act allows injured

workers whose employers provide workers’ compensation insurance to recover

damages without establishing the employer’s fault and without regard to their own

negligence; and, in exchange, employees receive “a lower but more certain recovery

than would have been possible under the common law.” Id. To prevent employers

from opting out of the Act, the Legislature enacted Labor Code section 406.033,

which precludes non-subscribing employers from asserting the employee’s

contributory negligence or assumption of risk or the negligence of another employee

as the cause of their injuries. Id. (citing TEX. LAB. CODE ANN. § 406.033 (West

16
2015)). We also observed that the Texas Supreme Court had held that courts should

construe the Workers’ Compensation Act liberally in favor of the injured worker and

should not construe the statute “in a manner that supplies, by implication, restrictions

on an employee’s rights not found in section 406.033’s plain language.” Id. (citing

Kroger, 23 S.W.3d at 349).

We concluded in Dodge, “Because the Equine Act does not expressly state an

intent to abrogate the Workers’ Compensation Act and the Legislature’s policy to

protect workers, the consequence of including employees among those subject to the

Equine Act would be to remove well-settled employer duties under the Labor Code

without express, supporting legislative intent.” Id. at 530. Accordingly, we held

that, “although the Equine Act does not specifically exclude employees acting within

the course and scope of their employment from the definition of ‘participant’ under

the Act, the statutory language specifically encompasses those who pay to participate

in the equine activity or who choose to participate for free”; and that, by contrast,

employees neither pay to participate in the activity nor participate in it for free, but

rather are paid for their labor. Id. We further held that, because the Equine Act was

intended to limit liability for those involved in the tourism industry, not to limit

employees’ rights against their employers, and because the Act lacked express

legislative intent to abrogate employer duties as delineated in the Workers’

17
Compensation Act, an employee covered by the Workers’ Compensation Act is not

“a participant in an equine activity under the Equine Act.” Id.

Finally, we observed in Dodge that “[a]n employer who does not subscribe to

workers’ compensation insurance coverage is responsible for work-related injuries

under common-law negligence principles.” Id. (citing TEX. LABOR CODE ANN.

§ 406.033(d)). In such a case, “To recover, the plaintiff must prove negligence of

the employer, or of an agent or servant of the employer, acting within the general

scope of the agent’s or servant’s employment.” Id. And, to establish negligence,

the plaintiff must produce evidence establishing a duty owed the employee by the

employer, breach of the duty, and damages proximately caused by the breach. Id.

The plaintiff in Dodge, in response to the stable owners’ no-evidence motion for

summary judgment, raised a fact issue with respect to every element of her

negligence cause of action.4 Id. at 531–32. Therefore, because the Dodge’s

employer—the stable owners—did not carry workers’ compensation insurance, we

reversed the summary judgment entered in favor of the employer-stable owners and

remanded the case for further proceedings. Id. at 532.

The Waaks urge us to overrule Dodge on the ground that other courts, most

recently the Fourteenth Court of Appeals, have disagreed with the reasoning in

4
We note that Dodge’s status as an employee was not contested. Dodge v. Durdin,
187 S.W.3d 523, 529–31 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
18
Dodge that the Legislature intended to limit liability under the Equine Act to those

“involved in the tourism industry.” Id. at 530. We decline the invitation.

The most recent case to construe the meaning of “participant” under the

FAAA, Young v. McKim, 373 S.W.3d 776, 780–81 (Tex. App.—Houston [14th

Dist.] 2012, pet. denied), was, like Dodge, actually brought under the predecessor

Equine Act. In that case, a woman, Young, worked at some stables, helping to take

care of horses that various owners kept there. Id. at 778. While she was walking

one horse to a paddock, the horse kicked her. Id. at 779. She sued the McKims, the

owners of the stables, for negligence, and they sought summary judgment on her

claims, arguing that they were immune from liability to her under the Equine Act—

which, at the time of her injury, had not been amended—because her alleged injuries

arose from risks inherent in an equine activity. Id. The trial court agreed with the

McKims and granted summary judgment in their favor. Id.

On appeal, Young argued that she was not a “participant” in an “equine

activity” when she was injured, and, therefore, the Equine Act did not apply to

preclude her claims against the stable owners. Id. at 781. She cited the statement in

Dodge that the legislative history of the Equine Act suggested that the Legislature

“enacted the Equine Act to limit the liability of equine sponsors to tourists and other

consumers of equine activities.” Id. at 780. The Fourteenth Court of Appeals

disagreed with the statement “that only consumers of equine activities qualify as

19
participants in equine activities as defined in the Equine Act.” Id. at 780–81. It

reasoned:

The Equine Act is a comprehensive limitation of liability for equine
activities of all kinds. The Equine Act applies to all “participants.” A
“participant” in an equine activity is defined in the statute as “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.” Under the statute, “‘engages in an
equine activity’ means riding, handling, training, driving, assisting in
the medical treatment of, being a passenger on, or assisting a participant
or sponsor with an equine animal.”

Id. at 781 (internal citations omitted). The court observed that “the statute

specifically includes as a category ‘assisting in the medical treatment of’ an equine

animal,” which was the activity being performed by the plaintiff when she was

injured. Id.

The court of appeals then addressed whether Young was the McKims’

employee and therefore entitled to bring her negligence claims against them, since

they had not subscribed to the Workers’ Compensation Act, which would have

provided insurance coverage for her injuries, or whether she was an independent

contractor and therefore not entitled to workers’ compensation insurance coverage.

Id. at 782. In making this determination, the court relied upon the reasoning in

Dodge “that if an employee were determined to be a participant in an equine activity,

it would abrogate employer duties delineated in the Workers’ Compensation Act.”

Id.

20
 The court applied the test established by the Texas Supreme Court to

determine whether a worker such as Young was an employee rather than an

independent contractor under the facts of the case, namely “whether the employer

has the right to control the progress, details, and methods of operations of the work,”

and concluded that “the summary-judgment evidence conclusively shows that

Young was an independent contractor when [the horse] Jasper kicked her.” Id.

(citing Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.

2002) (establishing test)).

The court reasoned that because Young was not an employee of the stables

but rather an independent contractor, she was not excluded as a participant in an

equine activity covered by Equine Act section 87.001, and the Act proscribed her

claims.5 Id. at 781 (citing Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.—Corpus

5
The Equine Act defined “equine activity” as:

(A) an equine animal show, fair, competition, performance, or
parade involves any breed of equine animal and any equine
discipline…;
(B) equine training or teaching activities;
(C) boarding equine animals;
(D) riding, inspecting, or evaluating an equine animal belonging to
another, without regard to whether the owner receives
monetary consideration or other thing of value for the use of
the equine animal. . . ;
(E) informal equine activity, including a ride, trip, or hunt that is
sponsored by an equine activity sponsor;
(F) placing or replacing horseshoes on an equine animal; or
21
Christi 2002, no pet.) (holding that plaintiff leading horse to paddock was participant

in equine activity as defined in Equine Act, but that there was fact issue as to whether

one of exceptions to exclusion from liability found in section 87.004 of Act

applied)). The court held that Young had failed to raise a fact issue as to any of the

exceptions to the Equine Act’s waiver of liability for participants in equine activities

set out in section 87.004, and it affirmed summary judgment in favor of the stable

owners. Id. at 784.

The Waaks argue in this case that Young supports their contention that the

FAAA waives their liability for the Zunigas’ claims because the Fourteenth Court

of Appeals disagreed with the statement in Dodge “that only consumers of equine

activities qualify as participants in equine activities as defined in the Equine Act.”

Id. at 781. They urge us to conclude, on the basis of Young, that the FAAA precludes

the Zunigas’ claims for the same reason and that Dodge should be overruled. We

reject this argument for two reasons.

(G) without regard to whether the participants are compensated,
rodeos and single event competitions, including team roping,
calf roping, and single steer roping.

Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.—Corpus Christi 2002, no pet.)
(quoting section 87.001 of Equine Act, which has since been amended to create
FAAA).
22
 First, the FAAA expressly broadened the scope of activities covered by the

Equine Act,6 so those portions of the legislative history of the Equine Act that apply

to conditions prevailing when that predecessor statute was enacted that are

inconsistent with the language of the FAAA were overridden by the amendments to

the Act and are moot. See Lee, 807 S.W.2d at 294 (“It is the obligation of the

legislature, rather than the courts, to develop a workable definition of [a statutory

term]”); see also Willis, 471 S.W.3d at 34 (holding that courts interpreting amended

statutes must presume that legislature intended that repeal of statutory definition

would result in courts applying different definition consistent with principles of

statutory construction). But the Legislature did not otherwise amend the language

or scope of the Act to abrogate the protections of the Workers’ Compensation Act.

In particular, the amendments did not add employees who perform farm animal

activities for a ranch owner who employs them in return for compensation to the list

of “participants” or “professionals” for whose injuries in the scope of their

employment a “person,” such as a “farm animal activity sponsor” or “livestock

producer,” is exempt from liability. See TEX. CIV. PRAC. & REM. CODE ANN. §§

87.001, 87.003. Thus, because the Legislature did not amend the statute to include

an “employee” within the definition of a “participant” in a farm animal activity, the

amendment of the Act subsequent to Dodge does not change our view that a farm or

6
See the meaning of “equine activity” as defined in the Equine Act, set out in note 4.
23
ranch employee is not a “participant” under the amended FAAA, just as the Young

court likewise concluded. See Young, 373 S.W.3d at 782; see also Jones, 745

S.W.2d at 902 (“A court may not judicially amend a statute and add words that are

not implicitly contained in the language of the statute. Only when it is necessary to

give effect to the clear legislative intent can we insert additional words into a

statutory provision.”) (citations omitted).

Second, regardless of whether the Legislature “suggested” its intent to limit

the definition of participants under the Equine Act to “consumers of equine

activities,” we did not rest our holding in Dodge on this legislative history and it is,

therefore, dictum. We rested our holding on the plain language of the statute and

the harmonization of the Equine Act with the Workers’ Compensation Act. See

Dodge, 187 S.W. 3d at 529–30 (distinguishing scope of Acts); see also Castleman,

546 S.W.3d at 688 (“While ‘it is not for courts to undertake to make laws “better”

by reading language into them,’ we must make logical inferences when necessary

‘to effect clear legislative intent or avoid an absurd or nonsensical result that the

Legislature could not have intended.’”) (quoting Cadena Comercial USA Corp., 518

S.W.3d at 338); Rodriguez, 547 S.W.3d at 838–39 (“[W]e consider the context and

framework of the entire statute and meld its words into a cohesive reflection of

legislative intent, [and we] construe statutes so as to harmonize [them] with other

relevant laws, if possible.”).

24
 The Waaks’ argument that Young abrogated Dodge because the Young court

rejected the argument in Dodge that the Equine Act was confined to tourism

activities is incorrect. The Fourteenth Court of Appeals in Young followed the same

reasoning as Dodge (with specific reference to Dodge) in concluding that an

“employee” is not a participant under the Equine Act, now the FAAA, because such

a reading of the Act would generate a conflict with the Workers’ Compensation Act.

See Young, 373 S.W.3d at 782. And it concluded that Young was a participant in an

equine activity covered by Equine Act section 87.003 because she was an

independent contractor, not an employee. Id. at 781 (citing Johnson, 88 S.W.3d at

732).

We have held that Zuniga was not a participant in a farm animal activity at

the time of his death and that, therefore, the FAAA does not bar the Zunigas’ claims.

Accordingly, we turn to whether the Zunigas have raised a fact issue as to whether

Zuniga was an employee of the Waaks under the terms of the Workers’

Compensation Act, and, if so, whether the Zunigas have raised a fact issue as to

every element of their claims against the Waaks, requiring reversal of the summary

judgment against them.

D. The Texas Workers’ Compensation Act

The Texas Workers’ Compensation Act (TWCA) provides for elective

workers’ compensation insurance coverage of employees by their employers. TEX.

25
LABOR CODE ANN. §§ 406.001–406.165 (West 2015 & Supp. 2017). The TWCA

specifically applies to “an action to recover damages for personal injuries or death

sustained by a farm or ranch employee” who is employed by a person with a gross

annual payroll of at least $25,000 or “who employs three or more farm or ranch

employees other than migrant or seasonal workers.” See id. § 406.162(a)(3)(B)(i),

(ii) (West 2015). TWCA section 406.165, however, expressly excludes independent

contractors from workers compensation insurance coverage. See id. § 406.165

(West 2015).

It is undisputed that three ranch hands were working on the Waaks’ ranch at

the time of Zuniga’s death. It is also undisputed that the Waaks did not provide

workers’ compensation insurance for these workers. Under the terms of section

406.162,(a)(3)(B)(k) and (ii), the TWCA did not apply to the Waaks if they had

fewer than three employees.7 The TWCA also did not apply if the workers were

independent contractors. The Waaks concede that one of these three workers was

an employee, but they argue that the other two workers, including Zuniga, were

independent contractors.

7
The parties also discuss the minimum payroll. The statute they are disputing says
the Workers’ Compensation Act applies to ranch employees if any of the listed,
disjunctive tests are true. TEX. LAB. CODE ANN. § 406.162(a) (West 2015).
Because the number-of-employees test applies, we do not need to determine
whether the minimum-payroll test also applies.
26
 Under TWCA section 406.165, “[a] farm or ranch employee who performs

work or provides a service for a farm or ranch employer . . . is an employee of that

employer unless the employee is hired to perform the work or provide the service as

an employee of an independent contractor.” Id. For a person to be an independent

contractor rather than an employee of an employer, there has to be another person

who “acts as the employer of the employee by paying wages, directing activities,

and performing other similar functions.” Id. § 406.165(b)(1). There is no evidence

that Zuniga or anyone else working on the ranch worked for, was directed by, or

provided services for anyone other than the Waaks. As a result, no one working at

the Waaks’ ranch qualified as an independent contractor under the TWCA. Cf.

Young, 373 S.W.3d at 782 (holding that Young was independent contractor where

she controlled details of her work for stable owners feeding several horses and

cleaning stables; stable owners employed at least two other persons to feed Jasper;

Young operated independent business which she advertised; and Young was paid

per feeding and stall cleaning).

We conclude that, under the TWCA’s plain terms, Zuniga was an employee

of the Waaks and entitled to coverage under the TWCA because the summary

judgment evidence established that the Waaks employed at least three people to

work on the ranch. None of these workers were seasonal or migrant workers subject

to different requirements, and none qualified as independent contractors. Thus,

27
Zuniga was an employee of the Waaks for purposes of the TWCA as a matter of law.

Moreover, the summary judgment evidence—including the depositions of the

Waaks regarding the events on the day Zuniga was killed, the local sheriff’s office

report, and the medical examiner’s report—raises fact questions as to whether

Zuniga was killed while performing work within the scope of his employment;

whether the Waaks owed him a duty of ordinary care as his employers, which they

breached; and whether his injuries were proximately caused by the breach.

Therefore, the Zunigas have satisfied their burden of proof in avoidance of summary

judgment. See TEX. R. CIV. P. 166a(c); Little, 148 S.W.3d at 381.

Accordingly, we sustain each of the Zunigas’ three issues.

Conclusion

We reverse the trial court’s grant of summary judgment and remand the case

to the trial court for further proceedings consistent with this opinion.

Evelyn V. Keyes
Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Justice Higley, concurring in part and dissenting in part.

28