By: Lucio III H.B. No. 3429
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of fireworks during a drought and under a
declaration of local disaster.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS
SECTION 1. Section 352.051, Local Government Code,
SUBCHAPTER C. FIREWORKS, is amended as follow:
Sec. 352.051. REGULATION OF [RESTRICTED] FIREWORKS DURING
DROUGHT. (a) For the purposes of this section the following
definitions shall apply:
(1) "Restricted fireworks" means only those items
classified under 49 C.F.R. Sec. 173.100(r)(2) (10-1-86 edition), as
"skyrockets with sticks" and "missiles with fins".
(2) "Drought conditions" means the existence
immediately preceding or during the fireworks season of a
Keetch-Byram Drought Index of 575 or greater.
(b)(1) The Texas Forest Service in the ordinary course of
its activities shall determine whether drought conditions, as
defined under Subsection (a)(2), exist on average in any county
requesting such a determination. The Texas Forest Service shall
make available the measurement index guidelines used to determine
whether drought conditions exist in a particular area. Following
any determination that such drought conditions exist, the Texas
Forest Service shall notify said county or counties when such
drought conditions no longer exist. The Texas Forest Service shall
make its services available each day during the Fourth of July and
December fireworks seasons to respond to the request of any county
for a determination whether drought conditions exist on average in
the county.
(2) The Texas Forest Service shall be allowed to take
such donations of equipment or funds as necessary to aid in the
carrying out of this section.
(c) Upon a determination by the Texas Forest Service under
this section that drought conditions exist on average in a
specified county, the commissioners court of the county by order
may prohibit or restrict the sale or use of certain [restricted]
fireworks in the unincorporated area of the county only in
accordance with the following provisions[.]:
(1) during a Keetch-Byram Drought Index of 575 or
greater a commissioners court may adopt an order prohibiting the
sale or use of restricted fireworks;
(2) during a Keetch-Byram Drought Index of 675 or
greater during a fireworks season, a commissioners court may adopt
an additional order limiting the dates of sell of permissible
fireworks to June 30 through July 4 for the Fourth of July fireworks
season or December 27 through January 1 for the December fireworks
season;
(3) during a Keetch-Byram Drought Index of 750 or
greater, a commissioners court may adopt an additional order
limiting the sale or use of fireworks to ground and handheld
fireworks only, as defined by NFPA and APA manuals.
[In addition, during the December fireworks season, the
commissioners court of a county by order may restrict or prohibit
the sale or use of restricted fireworks in specified areas when
conditions on rural acreage in the county not under cultivation for
a period of at least 12 months are determined to be extremely
hazardous for the danger of fire because of high grass or dry
vegetation.]
[(d) To facilitate compliance with an order adopted under
Subsection (c), the order must be adopted before:]
[(1) April 25 of each year for the Cinco de Mayo
fireworks season;]
[(2) June 15 of each year for the Fourth of July
fireworks season; and]
[(3) December 15 of each year for each December
fireworks season.]
(e) An order issued under this section shall expire upon
determination as provided under Subsection (b) that such drought
conditions no longer exist.
(f) When a county issues an order restricting or prohibiting
the sale or use of [restricted] fireworks under this section, the
county may designate one or more areas of appropriate size and
accessibility in the county as safe areas where the use of
[restricted] fireworks subject to a commissioners court order is
not prohibited, and the legislature encourages a county to
designate such an area for that purpose. The safe area may be
provided by the county, a municipality within the county, or an
individual, business, or corporation. A safe area may be designated
in and provided in the geographic area of the regulatory
jurisdiction of a municipality if the activity conducted in the
safe area is authorized by general law or a municipal regulation or
ordinance. An area is considered safe if adequate public safety and
fire protection services are provided to the area. A county,
municipality, individual, business, or corporation is not liable
for injuries or damages resulting from the designation,
maintenance, or use of the safe area.
(g) A person selling any type of fireworks, including
restricted fireworks, in a county that has adopted an order under
Subsection (c) shall, at every location at which the person sells
fireworks in the county, provide reasonable notice of the order and
reasonable notice of any location designated under Subsection (f)
as a safe area.
(h) An affected party is entitled to injunctive relief to
prevent the violation or threatened violation of a requirement or
prohibition established by an order adopted under this section.
(i) A person commits an offense if the person knowingly or
intentionally violates a prohibition established by an order issued
under this section. An offense under this subsection is a Class C
misdemeanor.
(j) A civil action against a county based on the county's
actions under this section must be brought in the appropriate court
in that county[.], unless the action includes a contested fact
issue regarding the existence or accuracy of a determination of
drought conditions by the Texas Forest Service, in which case the
action must be brought in Brazos County, but the Texas Forest
Service shall not be joined as a party.
SECTION 2. Section 418.108(i), Government Code, is
repealed.
SECTION 3. This act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.