Could a Texas county add restrictions or exemptions to a burn ban, and could it regulate activities excluded by section 352.081(f)?

Plain-English summary

The Texas Attorney General concluded in 2012 that Local Government Code section 352.081(c) gave a county commissioners court discretion to tailor a burn ban. A court could limit the ban to particular substances or parts of the unincorporated county and could add further restrictions or exemptions that complied with section 352.081 and other applicable Local Government Code provisions.

The Legislature made a different choice in subsection 352.081(f). That subsection excluded specified activities from section 352.081, including certain authorized public-safety, utility, pipeline, mining, agricultural, and certified prescribed-burning activities. The AG concluded that a commissioners court had no authority under section 352.081 to impose additional restrictions on those excluded activities.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a county exempt certain areas or substances from a general burn ban? A: Yes. The opinion said subsection 352.081(c) expressly allowed a county to determine the covered substances and locations.

Q: Could a county add conditions to a burn-ban exemption? A: The AG concluded that the general authority to adopt a burn ban implied discretion over its details, provided the conditions complied with section 352.081 and other applicable law.

Q: Could a county regulate the outdoor-burning activities listed in subsection 352.081(f)? A: No. The opinion concluded that the Legislature excluded those activities from county authority under section 352.081.

Q: Were county burn-ban decisions subject to review?
A: The opinion noted that a district court could review the commissioners court's exercise of discretion for abuse.

Background and statutory framework

Subsection 352.081(c) allowed a commissioners court to prohibit or restrict outdoor burning in all or part of an unincorporated area when drought conditions existed or burning would worsen a public-safety hazard. Subsection (f) excluded named categories of outdoor burning from that authority.

The opinion applied the rule that commissioners courts possess powers granted by the Constitution or statute, together with implied authority needed to carry out an express power.

Citations and references

Statute:

• Tex. Local Gov't Code § 352.081(c), (f)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Ector Cnty. v. Stringer, 843 S.W.2d 477 (Tex. 1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0930
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0930.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 14, 2012
The Honorable Seth C. Slagle Opinion No. GA-0930
Clay County Attorney
Post Office Drawer 449 Re: Authority of a commissioners court to adopt Henrietta, Texas 76365-0449 regulations under section 352.081, Local Government

Code, which relates to local burn bans (RQ-1013-GA)

Dear Mr. Slagle:

You ask about the authority of a county commissioners court to place “restrictions, limitations, or exemptions [on] a burn ban issued under Section 352.081 of the Local Government Code.” Subsection 352.08 1(c) states, in relevant part:

The commissioners court of a county by order may prohibit or
restrict outdoor burning in general or outdoor burning of a particular substance in all or part of the unincorporated area of the county if:

(1) drought conditions have been determined to exist as
provided by Subsection (b); or

(2) 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.

Tex. Loc. Gov’T CODE ANN. § 352.081(c) (West Supp. 2011). You explain that in adopting burn bans, some counties have added restrictions or exemptions. Brief at 4. You tell us, for example, that a county has adopted a ban allowing individuals to be exempt from the ban when burning for “agricultural purposes, when the wind is below 10 miles per hour, the humidity is above 25 percent, and the Volunteer Fire Department is on standby.” Jd. You also explain that some counties have added exemptions to burn bans for “burning agricultural crop lands, pasture lands, and/or brush piles.” Jd. You ask whether these further restrictions and exemptions are permissible under Local Government Code section 352.081. Request Letter at 1.

A county commissioners court may exercise only those powers conferred upon it by the Constitution or a state statute. TEX. CONST. art. V, § 18(b); City of San Antonio v. City of Boerne,

‘Letter and Brief from Honorable Seth C. Slagle, Clay Cnty. Att’y, to Honorable Greg Abbott, Tex. Att’y Gen. at 1 (Aug. 15, 2011), http://www.texasattorneygeneral.gov/opin (“Request Letter” & “Brief”).

The Honorable Seth C. Slagle - Page 2 (GA-0930)

111 S.W.3d 22, 28 (Tex. 2003). However, in the exercise of its express power, a commissioners court has the necessary implied authority to exercise broad discretion to accomplish an authorized purpose. City of San Antonio, 111 S.W.3d at 28; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). Subsection 352.081(c) expressly gives a commissioners court discretion to determine both the substances that are subject to the ban and the locations where outdoor burning can be prohibited. Tex. Loc. Gov’T CODE ANN. § 352.081(c) (West Supp. 2011) (authorizing the prohibition of “burning in general or . . . of a particular substance in all or part of the unincorporated area of the county”). Thus, the Legislature has expressly authorized the commissioners court to adopt exemptions for specific areas or substances that would otherwise be subject to a general burn ban. In addition, the commissioners court’s general authority to adopt burn bans implies authority to create further exemptions or restrictions regarding the details of the ban, as long as they meet the requirements of section 352.081 and any other relevant provisions of the Local Government Code.”

You also ask whether a commissioners court can “place further restrictions on the activities exempted under [Local Government Code subsection] 352.081(f).” Request Letter at 1. That subsection states:

This section does not apply to outdoor burning activities:

(1) related to public health and safety that are authorized by the Texas Natural Resource Conservation Commission for:

(A) firefighter training;

(B) public utility, natural gas pipeline, or mining
operations; or

(C) planting or harvesting of agriculture crops; or

(2) that are conducted by a prescribed burn manager certified under Section 153.048, Natural Resources Code, and meet the standards of Section 153.047, Natural Resources Code.

Tex. Loc. Gov’T CODE ANN. § 352.081(f) (West Supp. 2011).? By excluding these specific activities from the authority otherwise granted by section 352.081, the Legislature has prohibited a commissioners court from regulating these outdoor burning activities. Thus, acommissioners court has no authority to place restrictions on the outdoor burning activities described in subsection 352.081(f).

?The commissioners court’s exercise of discretion is subject to judicial review by a district court for an abuse of discretion. Ector Cnty. v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992).

3The name of the Texas Natural Resource Conservation Commission has changed to the Texas Commission on Environmental Quality (“TCEQ”). See Act of May 27, 2001, 77th Leg., R.S., ch. 965, § 18.01(a)(1), 2001 Tex. Gen. Laws 1933, 1985; http://www.tceq.texas.gov/about/name_change.html.

The Honorable Seth C. Slagle - Page 3 (GA-0930)

SUMMARY

Pursuant to Local Government Code subsection 352.08 1(c),
the Legislature has generally authorized a commissioners court to adopt a burn ban, including restrictions, limitations, or exemptions on a burn ban issued under that section.

The Legislature has prohibited a commissioners court from
regulating the outdoor burning activities described in Local
Government Code subsection 352.08 1(f).

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee