By Swinford H.B. No. 525
75R452 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the right to conduct agricultural operations and to
1-3 complaints, including nuisance actions and other nuisance
1-4 complaints, against agricultural operations.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 251.002(1), Agriculture Code, is amended
1-7 to read as follows:
1-8 (1) "Agricultural operation":
1-9 (A) means the operation and management of a farm
1-10 or ranch or a condition or activity that occurs in connection with
1-11 the production, harvesting, storage, management, or transportation
1-12 of an agricultural product or byproduct; and
1-13 (B) includes but is not limited to the following
1-14 activities: cultivating the soil; producing crops for human food,
1-15 animal feed, planting seed, or fiber; floriculture; viticulture;
1-16 horticulture; aquaculture; beekeeping; planting trees or harvesting
1-17 timber; planting or harvesting berries, herbs, mushrooms, or
1-18 similar products; raising or keeping livestock or poultry for
1-19 agricultural purposes, including for breeding or the production of
1-20 meat, eggs, or dairy products; raising or keeping horses for
1-21 breeding or grazing; [and] planting cover or forage crops or
1-22 leaving land idle for the purpose of participating in any
1-23 governmental program or normal crop or livestock rotation
1-24 procedure; and the production of any other product that the
2-1 department determines to incorporate the use of food, feed, fiber,
2-2 or fur.
2-3 SECTION 2. Section 251.003, Agriculture Code, is amended to
2-4 read as follows:
2-5 Sec. 251.003. ESTABLISHED DATE OF OPERATION. (a) For
2-6 purposes of this chapter, the established date of operation is the
2-7 date on which an agricultural operation commenced operation. If
2-8 the physical facilities of the agricultural operation are
2-9 subsequently expanded, the established date of operation for each
2-10 expansion is a separate and independent established date of
2-11 operation established as of the date of commencement of the
2-12 expanded operation, and the commencement of expanded operation does
2-13 not divest the agricultural operation of a previously established
2-14 date of operation.
2-15 (b) The established date of operation is not affected by the
2-16 following events, except to the extent an event also constitutes an
2-17 expansion of the physical facilities of the agricultural operation:
2-18 (1) a change in the ownership of the agricultural
2-19 operation;
2-20 (2) a temporary cessation or interruption of farming;
2-21 (3) enrollment in a government program;
2-22 (4) the adoption of new technology; and
2-23 (5) a change in the type of farm product being
2-24 produced.
2-25 SECTION 3. Section 251.004, Agriculture Code, is amended to
2-26 read as follows:
2-27 Sec. 251.004. NUISANCE ACTIONS AND PROCEEDINGS. (a) No
3-1 nuisance action may be brought against an agricultural operation
3-2 that has lawfully been in operation for one year or more prior to
3-3 the date on which the action is brought, if the conditions or
3-4 circumstances complained of as constituting the basis for the
3-5 nuisance action have existed substantially unchanged since the
3-6 established date of operation. This subsection does not restrict
3-7 or impede the authority of this state to protect the public health,
3-8 safety, and welfare or the authority of a municipality to enforce
3-9 state law.
3-10 (b) An agricultural operation is not considered a public or
3-11 private nuisance, for the purpose of an action for damages or
3-12 injunctive relief or for other purposes, if the agricultural
3-13 operation conforms to generally acceptable agriculture and
3-14 management practices established by the department.
3-15 (c) An agricultural operation is not considered a public or
3-16 private nuisance, for the purpose of an action for damages or
3-17 injunctive relief or for other purposes, if:
3-18 (1) the agricultural operation was established before
3-19 a change in the use or occupancy of land located within one mile of
3-20 the boundaries of the agricultural operation; and
3-21 (2) before the change in the use or occupancy of that
3-22 land, the agricultural operation would not have been considered a
3-23 public or private nuisance.
3-24 (d) [(b)] A person who brings a nuisance action for damages
3-25 or injunctive relief against an agricultural operation that has
3-26 existed for one year or more prior to the date that the action is
3-27 instituted or who violates the provisions of Subsection (a) of this
4-1 section is liable to the agricultural operator for all costs and
4-2 expenses incurred in defense of the action, including but not
4-3 limited to attorney's fees, court costs, travel, and other related
4-4 incidental expenses incurred in the defense.
4-5 (e) The operator of an agricultural operation who prevails
4-6 in any nuisance action brought against the operator for damages or
4-7 injunctive relief on account of the operation is entitled to
4-8 recover from the plaintiff all costs and expenses the operator
4-9 incurred in defense of the action, including attorney's fees, court
4-10 costs, travel, and other related incidental expenses incurred in
4-11 the defense.
4-12 (f) [(c)] This section does not affect or defeat the right
4-13 of any person to recover for injuries or damages sustained because
4-14 of an agricultural operation or portion of an agricultural
4-15 operation that is conducted in violation of a federal, state, or
4-16 local statute or governmental requirement that applies to the
4-17 agricultural operation or portion of an agricultural operation.
4-18 SECTION 4. Chapter 251, Agriculture Code, is amended by
4-19 adding Sections 251.006, 251.007, and 251.008 to read as follows:
4-20 Sec. 251.006. GENERALLY ACCEPTED AGRICULTURE AND MANAGEMENT
4-21 PRACTICES. (a) The department shall establish and publish a
4-22 description of generally accepted agriculture and management
4-23 practices:
4-24 (1) that are consistent with this chapter and other
4-25 law; and
4-26 (2) that, among other things, indicate the extent to
4-27 which the generation of noise, odors, dust, fumes, and other
5-1 conditions incident to agricultural operations are generally
5-2 considered to be within the norm for accepted agriculture and
5-3 management practices.
5-4 (b) In establishing the practices, the department shall
5-5 consider the written comments or recommendations of the Texas
5-6 Agricultural Extension Service, the Texas Agricultural Experiment
5-7 Station, the agriculture department of any university in this
5-8 state, and the United States Department of Agriculture.
5-9 (c) The department shall review the established practices
5-10 annually and shall revise the practices as necessary.
5-11 Sec. 251.007. INVESTIGATIONS OF AND DETERMINATIONS ABOUT
5-12 NUISANCE COMPLAINTS. (a) This section does not apply to a
5-13 nuisance action brought in a court against an agricultural
5-14 operation for damages or injunctive relief.
5-15 (b) The department shall investigate all complaints claiming
5-16 that an agricultural operation is a nuisance, including complaints
5-17 involving agricultural waste products, dust, noise, odor, fumes,
5-18 air pollution, surface and ground water pollution, food and
5-19 agricultural processing byproducts, the care of farm animals, pest
5-20 infestation, and the use of manure and other nutrients.
5-21 (c) The department shall enter into a memorandum of
5-22 understanding with other appropriate state agencies that have
5-23 duties related to the investigation or resolution of those
5-24 complaints. The department and the other state agencies shall
5-25 investigate and resolve the complaints in accordance with the
5-26 memorandum of understanding.
5-27 (d) If the department finds that an agricultural operation
6-1 that is alleged to be a nuisance is using generally accepted
6-2 agriculture and management practices with regard to the problem
6-3 that is the subject of the complaint, the department shall notify
6-4 the complaining person in writing of its finding.
6-5 (e) If the department finds that a practice that is not a
6-6 generally accepted agriculture and management practice is the
6-7 source or the potential source of the problem that is the subject
6-8 of the complaint, the department shall advise the person
6-9 responsible for the agricultural operation that necessary changes
6-10 should be made to resolve or abate the problem and to conform with
6-11 generally accepted agriculture and management practices. The
6-12 department shall determine if the changes have been made and shall
6-13 notify the complaining person in writing of its finding.
6-14 (f) The department may order a person who brings a complaint
6-15 claiming that an agricultural operation is a nuisance to pay to the
6-16 department its full costs in investigating the complaint if:
6-17 (1) the department finds that the problem that is the
6-18 subject of the complaint is not caused by the agricultural
6-19 operation's use of a practice that is not a generally accepted
6-20 agriculture and management practice; and
6-21 (2) during the three-year period before the date of
6-22 the complaint the person brought at least three complaints claiming
6-23 that that same agricultural operation was a nuisance that were
6-24 investigated by the department, and the department found that the
6-25 problems that were the subject of the three complaints were not
6-26 caused by the agricultural operation's use of a practice that was
6-27 not a generally accepted agriculture and management practice.
7-1 Sec. 251.008. NOTICE TO BUYERS OF REAL PROPERTY. The seller
7-2 of real property may, when applicable, give the following notice to
7-3 the prospective buyer: "This notice is to inform you that the real
7-4 property you are about to acquire is within one mile of an
7-5 agricultural operation. The agricultural operation may use
7-6 generally accepted agriculture and management practices that may
7-7 generate the usual and ordinary dust, odors, and other conditions
7-8 associated with the agricultural operation, and these practices are
7-9 protected under Chapter 251, Agriculture Code."
7-10 SECTION 5. Chapter 12, Agriculture Code, is amended by
7-11 adding Section 12.038 to read as follows:
7-12 Sec. 12.038. COMPLAINTS RELATED TO FARMING AND RANCHING.
7-13 The department shall develop procedures to:
7-14 (1) investigate complaints related to farming and
7-15 ranching; and
7-16 (2) resolve a complaint when it has authority to do so
7-17 and otherwise to encourage the resolution of the complaint.
7-18 SECTION 6. (a) This Act takes effect September 1, 1997.
7-19 (b) The changes in law made by this Act apply only to a
7-20 nuisance action or proceeding initiated on or after the effective
7-21 date of this Act. A nuisance action or proceeding initiated before
7-22 the effective date of this Act is governed by the law in effect
7-23 when the action or proceeding was initiated, and that law is
7-24 continued in effect for that purpose.
7-25 SECTION 7. The importance of this legislation and the
7-26 crowded condition of the calendars in both houses create an
7-27 emergency and an imperative public necessity that the
8-1 constitutional rule requiring bills to be read on three several
8-2 days in each house be suspended, and this rule is hereby suspended.