This article will discuss the statutory authority of counties to prohibit or restrict outdoor burning under Section 352.081, Local Government Code, known as the “Burn Ban” statute. This article will not cover county statutory authority under the declaration of a local disaster under Section 418.108, Government Code or the regulation of restricted fireworks under Section 352.051, Local Government Code. Although the Burn Ban statute was adopted in 1999 and amended in 2001, it has not been the subject of any Attorney General Opinion or court decisions. The statutory interpretations expressed in this article are the opinion of this author, and readers should consult with the local county attorney concerning any application of the statute to specific fact situations.
For simplicity, the statute will be addressed in a question-and-answer format:
Who can adopt an order for a burn ban in the unincorporated area of the county?
Only the commissioners court, not the county judge or any individual commissioner.
When can the commissioners court adopt a burn ban order?
(a) when the Texas Forest Service determines that drought conditions exist, using the Keetch-Byron Drought Index; or (b) when the commissioners court makes a finding that circumstances present in all or part of the unincorporated area create a public safety hazard that would be exacerbated by outdoor burning.
How long does the burn ban last?
The commissioners court order must specify the date of its expiration and may not extend beyond 90 days. Another order may be adopted. An order also expires on the date that the Texas Forest Service determines that drought conditions no longer exist, or when the commissioners court determines that a public safety hazard no longer exists.
What outdoor burning activities are exempt from the ban?
Exempt activities include:
Activities authorized by the Texas Commission on Environmental Quality for (A) firefighting training; (B) public utility, natural gas pipeline, or mining operations; or (C) planting or harvesting of agriculture crops; or
Prescribed burns conducted by a prescribed burn manager and meeting the standards established by the Prescribed Burning Board, including minimum insurance.
Can the commissioners court grant local permits for prescribed burns?
No. Exempt activities do not require a local permit, and the county has no authority to issue local permits to waive the insurance or other requirements.
Can the commissioners court exclude certain burning from the ban?
Yes. The commissioners court order may exclude certain activities, such as welding, and may impose conditions upon the exclusion, such as prior notice to the county, availability of firefighting equipment, water supply, etc.
Can the commissioners court exclude portions of the county or burning of certain substances?
Yes. The commissioners court order may exclude areas of the county and particular substances from the ban.
How is the burn ban order enforced?
Violation of the burn ban order is a Class C misdemeanor punishable by a fine not to exceed $500; an injunction may also be issued to prevent a violation.
For more information, please call me at 1-800-733-0699.