Since we don’t have enough wars raging presently, Texas has declared war to protect farming. Did you know that was a problem? Proposition 1 (that’s how important this is, first place on the ballot) will seek to amend the Texas Constitution for the 518th time since 1876. It seeks to restrict regulations and ensure, as the title to the amendment states, that the Right to Farming, Ranching, Timber Production, Horticulture and Wildlife Management remain intact. This will ensure that the new bills passed in the last legislature, HB 1750, HB 2308 and HB 2947 are constitutional.
This constitutional amendment and these 3 bills are in addition to the Texas Right to Farm statute that was passed in 1981. If you do the math, that’s 42 years of state protection for agriculture operations from nuisance actions. (Editorial opinion: nuisance is the garbage can of the law; when you can’t figure out where else to put a law, call it a nuisance.) These bills and the amendment expand the protections from nuisance suits to “other actions to restrain” agricultural operations. When a dairy farmer’s manure pit broke and flooded a neighbor’s property, the farmer was sued for nuisance and trespass. The farmer won in court, citing the defense afforded in the Right to Farm Act and his defense is now further codified with these three bills and a constitutional amendment. I now call this defense “Manure Happens”!
The bills also expand the definition of agricultural operation to include vegetation, forage veterinary services and commercial animal sales. They impose the highest standard in civil suits of a burden of proof of clear and convincing evidence, impose ‘loser pays’ requirements if the plaintiff loses (not only attorney fees but any other damages), and if there is a conflict with any other law, this law prevails. Nationwide, all 50 states have some form of a right to farm bill. Oklahoma recently defeated a similar measure. The Houston Chronicle Editorial Board is opposed to the amendment.
With regards to a city’s regulations of farming, these bills prohibit city regulation in the city’s ETJ. Within the city limits, city regulations are allowed only if there is a clear and convincing evidence of two things. First, it requires that the regulation cannot be addressed through less restrictive means.
Secondly, the bills require that the city regulations would be necessary to protect persons in the immediate vicinity of the agricultural operation from imminent danger of: explosion; flooding; infestation of vermin or insects; physical injury; spread of identified contagious disease directly attributable to the ag operation; removal of lateral or subjacent support; identified source of contamination of water supplies; radiation[??!]; improper storage of toxic materials; crops or vegetation causing traffic hazards; or discharge of firearms in violation of the law. If a requirement falls within these categories, the city must adopt a resolution based upon a mandatory report that the requirement is necessary to protect public health.
City regulations are now subject to a yet to be prepared Aggies’s manual on accepted farming practice. In addition, they may not regulate vegetation height shorter than 12 inches if more than 10 feet from a property line adjacent to a public street or sidewalk or next to an occupied house. As a prequel to both movies Hud (Paul Newman’s cattle herd infection), and Interstellar (Matthew McConaughey’s crop disease), cities may not prohibit the use of pesticides within agricultural operations. And why not throw in Cujo (mad dog)? A city may not regulate dogs used to protect livestock.
When Farmer Joe* hits it big and buys a ranch inside city limits or 2 acres on River Oaks Blvd, his “Ag” activities are protected and his neighbors will just have to suffer, because Texas won the war.
*A mostly fictitious name. Any resemblance to a former employee who might now be working downtown, high up in an office tower, is a total coincidence.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.