CHAPTER 251. EFFECT OF NUISANCE ACTIONS AND GOVERNMENTAL REQUIREMENTS ON PREEXISTING AGRICULTURAL OPERATIONS
AGRICULTURE CODE
TITLE 8. PROTECTION AND PRESERVATION OF AGRICULTURAL OPERATIONS
CHAPTER 251. EFFECT OF NUISANCE ACTIONS AND GOVERNMENTAL
REQUIREMENTS ON PREEXISTING AGRICULTURAL OPERATIONS
Sec. 251.001. POLICY. 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 regulated or considered to be a nuisance.
Added by Acts 1981, 67th Leg., p. 2595, ch. 693, Sec. 21, eff.
Aug. 31, 1981.
Sec. 251.002. DEFINITIONS. In this chapter:
(1) "Agricultural operation" includes the following activities:
(A) cultivating the soil;
(B) producing crops for human food, animal feed, planting seed,
or fiber;
(C) floriculture;
(D) viticulture;
(E) horticulture;
(F) silviculture;
(G) wildlife management;
(H) raising or keeping livestock or poultry; 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, 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.
Added by Acts 1981, 67th Leg., p. 2595, ch. 693, Sec. 21, eff.
Aug. 31, 1981.
Amended by:
Acts 2005, 79th Leg., Ch.
18, Sec. 1, eff. May 3, 2005.
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 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.
Added by Acts 1981, 67th Leg., p. 2595, ch. 693, Sec. 21, eff.
Aug. 31, 1981.
Sec. 251.004. NUISANCE ACTIONS. (a) No nuisance action may be
brought against an agricultural operation that has lawfully been
in operation for one year or more prior to the date on which the
action is brought, 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.
(b) A person who brings a nuisance action 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 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.
(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.
Added by Acts 1981, 67th Leg., p. 2595, ch. 693, Sec. 21, eff.
Aug. 31, 1981.
Sec. 251.005. EFFECT OF GOVERNMENTAL REQUIREMENTS. (a) For
purposes of this section, the effective date of a governmental
requirement is the date on which the requirement requires or
attempts to require compliance as to the geographic area
encompassed by the agricultural operation. The recodification of
a municipal ordinance does not change the original effective date
to the extent of the original requirements.
(b) A governmental requirement of a political subdivision of the
state other than a city:
(1) applies to an agricultural operation with an established
date of operation subsequent to the effective date of the
requirement;
(2) does not apply to an agricultural operation with an
established date of operation prior to the effective date of the
requirement; and
(3) applies to an agricultural operation if the governmental
requirement was in effect and was applicable to the operation
prior to the effective date of this chapter.
(c) A governmental requirement of a city does not apply to any
agricultural operation situated outside the corporate boundaries
of the city 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.
(c-1) A governmental requirement may be imposed under Subsection
(c) only after the governing body of the city makes findings by
resolution that the requirement is necessary to protect public
health. Before making findings as to the necessity of the
requirement, the governing body of the city must use the services
of the city health officer or employ a consultant to prepare a
report to identify the health hazards related to agricultural
operations and determine the necessity of regulation and manner
in which agricultural operations should be regulated.
(c-2) A governmental requirement of a city relating to the
restraint of a dog that would apply to an agricultural operation
under Subsection (c) 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.
(d) This section shall be construed to maintain, to the limited
degree set forth in this section, the authority of a political
subdivision under prior law over nonconforming uses but may not
be construed to expand that authority.
(e) A governmental requirement of a political subdivision of the
state does not apply to conduct described by Section 42.09(f),
Penal Code, on an agricultural operation.
Added by Acts 1981, 67th Leg., p. 2595, ch. 693, Sec. 21, eff.
Aug. 31, 1981. Amended by Acts 1995, 74th Leg., ch. 450, Sec. 1,
eff. Aug. 28, 1995.
Amended by:
Acts 2005, 79th Leg., Ch.
18, Sec. 2, eff. May 3, 2005.
Acts 2009, 81st Leg., R.S., Ch.
88, Sec. 1, eff. May 23, 2009.
Acts 2009, 81st Leg., R.S., Ch.
506, Sec. 9.22, eff. September 1, 2009.
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.
(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 statute or governmental
requirement to protect public health or safety.
(c) In this section:
(1) "Agricultural land" includes any land the use of which
qualifies the land for appraisal based on agricultural use as
defined under Subchapter D, Chapter 23, Tax Code.
(2) "Agricultural improvement" includes pens, barns, fences, and
other improvements designed for the sheltering, restriction, or
feeding of animal or aquatic life, for storage of produce or
feed, or for storage or maintenance of implements.
Added by Acts 1997, 75th Leg., ch. 332, Sec. 1, eff. Sept. 1,
1997.