Untitled Texas Attorney General Opinion ( 2012 )

ATToRNEY GENERAL oF TEXAS
G R E G A B B O T T
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.”l Subsection 352.081(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:
(l) 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(0) (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.” Id. You also explain that some counties have
added exemptions to burn bans for “burning agricultural crop lands, pasture lands, and/or brush
piles.” Id. You ask whether these further restrictions and exemptions are permissible under Local
Government Code section 352.081. Request Letter at l.
A county commissioners court may exercise only those powers conferred upon it by the
Constitution or a state statute. TEX. CONST. art. V, § lS(b); City of San Antom'o v. Cily of Boeme,
1Letter and Brief from Honorable Seth C. Slagle, Clay Cnty. Att’y, to Honorable Greg Abbott, Tex. Att’y Gen.
at l (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. Cin ofSan Antonio, 111 S.W.3d at 28; Ccmales v. Laughlin, 214 S.W.2d 451, 453 (Tex.
1948). Subsection 352.081(0) 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(0) (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,2
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 l. 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).3 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, a commissioners court
has no authority to place restrictions on the outdoor burning activities described in subsection
352.08 l(f).
2The 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 ofMay 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 352.081(0),
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 352.081(f).
Very truly yours,
GREG BBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JAS ON BOATRIGHT
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee