By: Perry, et al. S.B. No. 1421
A BILL TO BE ENTITLED
AN ACT
relating to the effect of nuisance actions, other actions, and
governmental requirements on certain agricultural operations.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 251, Agriculture Code, is
amended to read as follows:
CHAPTER 251. EFFECT OF NUISANCE ACTIONS, OTHER ACTIONS, AND
GOVERNMENTAL REQUIREMENTS ON CERTAIN [PREEXISTING] AGRICULTURAL
OPERATIONS
SECTION 2. Section 251.001, Agriculture Code, is amended to
read as follows:
Sec. 251.001. POLICY. Food security being essential, it
[It] is the policy of this state to conserve, protect, and encourage
the development and improvement of its agricultural land for the
production of food and other agricultural products. It is the
purpose of this chapter to reduce the loss to the state of its
agricultural resources by limiting the circumstances under which
agricultural operations may be legally threatened, subject to suit,
regulated, or otherwise declared [considered] to be a nuisance.
SECTION 3. Sections 251.002(1) and (2), Agriculture Code,
are amended to read as follows:
(1) "Agricultural operation" includes the following
activities:
(A) cultivating the soil;
(B) producing crops or growing vegetation for
human food, animal feed, including hay and other forages, planting
seed, or fiber;
(C) floriculture;
(D) viticulture;
(E) horticulture;
(F) silviculture;
(G) wildlife management;
(H) raising or keeping livestock or poultry,
including veterinary services; and
(I) planting cover crops or leaving land idle for
the purpose of participating in any governmental program or normal
crop or livestock rotation procedure.
(2) "Governmental requirement" includes any rule,
regulation, ordinance, zoning, license or permit requirement, or
other requirement or restriction enacted or promulgated by a
county, city, or other municipal corporation that has the power to
enact or promulgate the requirement or restriction.
SECTION 4. Sections 251.003 and 251.004, Agriculture Code,
are amended to read as follows:
Sec. 251.003. ESTABLISHED DATE OF OPERATION. For purposes
of this chapter, the established date of operation is the date on
which an agricultural operation commenced agricultural operations
[operation. If the physical facilities of the agricultural
operation are subsequently expanded, the established date of
operation for each expansion is a separate and independent
established date of operation established as of the date of
commencement of the expanded operation, and the commencement of
expanded operation does not divest the agricultural operation of a
previously established date of operation].
Sec. 251.004. NUISANCE OR OTHER ACTIONS. (a) No nuisance
action or other action to restrain an agricultural operation may be
brought against an agricultural operation that has lawfully been in
operation and substantially unchanged for one year or more prior to
the date on which the action is brought. A person who brings a
nuisance action or other action to restrain an agricultural
operation that is not prohibited by this section must establish
each element of the action by clear and convincing evidence[, if the
conditions or circumstances complained of as constituting the basis
for the nuisance action have existed substantially unchanged since
the established date of operation]. This subsection does not
restrict or impede the authority of this state to protect the public
health, safety, and welfare or [the authority of a municipality] to
enforce state law. For the purposes of this subsection, a
substantial change to an agricultural operation means a material
alteration to the operation of or type of production at an
agricultural operation that is substantially inconsistent with the
operational practices since the established date of operation.
(b) A person who brings a nuisance action or other action to
restrain an agricultural operation and seeks [for] damages or
injunctive relief against an agricultural operation that has
existed for one year or more prior to the date that the action is
instituted or who violates the provisions of Subsection (a) [of
this section] is liable to the agricultural operator for:
(1) all costs and expenses incurred in defense of the
action, including [but not limited to] attorney's fees, court
costs, travel, and other related incidental expenses incurred in
the defense; and
(2) any other damages found by the trier of fact.
(c) This section does not affect or defeat the right of any
person to recover for injuries or damages sustained because of an
agricultural operation or portion of an agricultural operation that
is conducted in violation of a federal, state, or local statute or
governmental requirement that applies to the agricultural
operation or portion of an agricultural operation.
SECTION 5. Section 251.005(c), Agriculture Code, is amended
to read as follows:
(c) A governmental requirement of a city:
(1) does not apply to any agricultural operation
located [situated] outside the corporate boundaries of the city;
and
(2) applies to an agricultural operation located in
the corporate boundaries of the city only if the governmental
requirement complies with Section 251.0055 [on the effective date
of this chapter. If an agricultural operation so situated is
subsequently annexed or otherwise brought within the corporate
boundaries of the city, the governmental requirements of the city
do not apply to the agricultural operation unless the requirement
is reasonably necessary to protect persons who reside in the
immediate vicinity or persons on public property in the immediate
vicinity of the agricultural operation from the danger of:
[(1) explosion, flooding, vermin, insects, physical
injury, contagious disease, removal of lateral or subjacent
support, contamination of water supplies, radiation, storage of
toxic materials, or traffic hazards; or
[(2) discharge of firearms or other weapons, subject
to the restrictions in Section 229.002, Local Government Code].
SECTION 6. Chapter 251, Agriculture Code, is amended by
adding Section 251.0055 to read as follows:
Sec. 251.0055. LIMITATIONS ON CITY GOVERNMENTAL
REQUIREMENTS APPLICABLE WITHIN CORPORATE BOUNDARIES. (a) A city
may not impose a governmental requirement that applies to
agricultural operations located in the corporate boundaries of the
city unless:
(1) there is evidence that the purposes of the
requirement cannot be addressed through less restrictive means and
the requirement is reasonably necessary to protect persons who
reside in the immediate vicinity or persons on public property in
the immediate vicinity of the agricultural operation from the
imminent danger of:
(A) explosion;
(B) flooding;
(C) an infestation of vermin or insects;
(D) physical injury;
(E) the significant spread of an identified
contagious disease that is directly attributable to the
agricultural operation;
(F) the removal of lateral or subjacent support;
(G) an identified source of contamination of
water supplies;
(H) radiation;
(I) improper storage of toxic materials;
(J) crops planted or vegetation grown in a manner
that will cause traffic hazards; or
(K) discharge of firearms or other weapons,
subject to the restrictions in Section 229.002, Local Government
Code;
(2) the governing body of the city makes a finding by
resolution, based on a report described by Subsection (b), that the
requirement is necessary to protect public health; and
(3) the requirement is not otherwise prohibited by
this section.
(b) Before making a finding described by Subsection (a)(2),
the governing body of the city must obtain and review a report
prepared by the city health officer or a consultant that:
(1) identifies evidence of the health hazards related
to agricultural operations;
(2) determines the necessity of regulation and the
manner in which agricultural operation should be regulated;
(3) states whether each manner of regulation under
Subdivision (2) will restrict or prohibit a generally accepted
agricultural practice listed in the manual prepared under Section
251.007; and
(4) if applicable, includes an explanation why the
report recommends a manner of regulation that will restrict or
prohibit the use of a generally accepted agricultural practice that
the manual indicates does not pose a threat to public health.
(c) A city may not impose a governmental requirement that
directly or indirectly:
(1) prohibits the use of a generally accepted
agricultural practice listed in the manual prepared under Section
251.007, except as provided by Subsections (a) and (b);
(2) prohibits or restricts the growing or harvesting
of vegetation for animal feed or forage, except as provided by
Subsection (d);
(3) prohibits the use of pesticides or other measures
to control vermin or disease-bearing insects to the extent
necessary to prevent an infestation; or
(4) requires an agricultural operation be designated
for:
(A) agricultural use under Section 1-d, Article
VIII, Texas Constitution; or
(B) farm, ranch, wildlife management, or timber
production use under Section 1-d-1, Article VIII, Texas
Constitution.
(d) A city may impose a maximum height for vegetation that
applies to agricultural operations only if:
(1) the maximum vegetation height is at least 12
inches; and
(2) the requirement applies only to portions of an
agricultural operation located no more than 10 feet from a property
boundary that is adjacent to a public sidewalk, street, or highway.
(e) A governmental requirement of a city relating to the
restraint of a dog that would apply to an agricultural operation
does not apply to a dog used to protect livestock on property
controlled by the property owner while the dog is being used on such
property for that purpose.
SECTION 7. Section 251.006, Agriculture Code, is amended to
read as follows:
Sec. 251.006. AGRICULTURAL IMPROVEMENTS. (a) An owner,
lessee, or occupant of agricultural land is not liable to the state,
a governmental unit, or the owner, lessee, or occupant of other
agricultural land for the construction or maintenance on the land
of an agricultural improvement if the construction is not expressly
prohibited by statute [or a governmental requirement] in effect at
the time the improvement is constructed. Such an improvement does
not constitute a nuisance and is not otherwise subject to suit or
injunction.
(b) [This section does not apply to an improvement that
obstructs the flow of water, light, or air to other land.] This
section does not prevent the enforcement of a state or federal
statute [or governmental requirement to protect public health or
safety].
(c) In this section:
(1) "Agricultural land" includes:
(A) any land the use of which qualifies the land
for appraisal based on agricultural use as defined under Subchapter
D, Chapter 23, Tax Code; and
(B) any other land on which agricultural
operations exist or may take place.
(2) "Agricultural improvement" includes pens, barns,
fences, arenas, and other improvements designed for:
(A) the sheltering, restriction, or feeding of
animal or aquatic life;
(B) [, for] storage of produce or feed;[,] or
(C) [for] storage or maintenance of:
(i) implements used for management
functions; or
(ii) equipment necessary to carry out
agricultural operations.
SECTION 8. Chapter 251, Agriculture Code, is amended by
adding Sections 251.007 and 251.008 to read as follows:
Sec. 251.007. GENERALLY ACCEPTED AGRICULTURAL PRACTICES.
The Texas A&M AgriLife Extension Service shall develop a manual
that identifies generally accepted agricultural practices and
indicates which of those practices do not pose a threat to public
health, including a threat to public health posed by a danger listed
in Section 251.0055(a)(1).
Sec. 251.008. CONFLICT WITH OTHER LAW. If there is a
conflict between this chapter and other law, this chapter prevails.
SECTION 9. Sections 251.005(c-1) and (c-2), Agriculture
Code, are repealed.
SECTION 10. As soon as practicable after the effective date
of this Act, the Texas A&M AgriLife Extension Service shall develop
the manual described by Section 251.007, Agriculture Code, as added
by this Act.
SECTION 11. Sections 251.002 and 251.005, Agriculture Code,
as amended by this Act, and Section 251.0055, Agriculture Code, as
added by this Act, apply to a governmental requirement adopted
before, on, or after the effective date of this Act.
SECTION 12. The changes in law made by this Act apply only
to a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrued before the effective date
of this Act is governed by the law applicable to the cause of action
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 13. This Act takes effect September 1, 2023.