CHAPTER 251. EFFECT OF NUISANCE ACTIONS AND GOVERNMENTAL REQUIREMENTS ON PREEXISTING AGRICULTURAL OPERATIONS

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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;

(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.

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.

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

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.

(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.

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