COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST
AND DOCUMENTS TO BE REVIEWED BY THE COURT.
MADE BY: William H. Williams
MEETING DATE: June 9, 2003
OFFICE: Commissioner, Pct. 2
TIME PREFERRED:
SUBJECT: (Please be specific) Consider, discuss and take appropriate action adopting
an ORDER PROHIBITING CERTAIN FIREWORKS IN UNINCORPORATED
AREAS OF KERB COUNTY. Additionally, determine whether or not to designate one
or more "safe" areas where the use of restricted fireworks is not prohibited. If so,
determine location(s).
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON(S) ADDRESSING THE COURT: Commissioner Williams.
ESTIMATED LENGTH OF PRESENTATION: 5 Minutes
IF PERSONNEL MATTER-NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:

All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
meetings. Your cooperation is appreciated and contributes toward your request being addressed
at the earliest opportunity. See Agenda Request Rule adopted by Commissioners Court.
TEXAS ASSOCIATIOI~I OF CO~II~ITIES
1204 San An[onio • Austin, TX 78701 ly of P.O. Box 2131 • Austin, TX 78768-2131
Sam D. Seale • Executive Director
May 20, 2003
Re: Regulating Fireworks
Dear County Judges and Commissioners:
The Local Government Code, § 352.051, which authorizes the Commissioners Court to adopt an
order regulating certain fireworks in the unincorporated areas of the county, provides that June
15, 2003 is the last day to adopt an order regulating fireworks for the July, 2003 fireworks
season. The Texas Forest Service has not yet determined that drought conditions exist in the
state. However, the Texas Forest Service expects to declare drought conditions in many counties
in the upcoming weeks. If your county is designated a drought area, and your Court wishes to
adopt such an order, action must be taken before the deadline.
To determine whether your county is designated a drought area, please visit the Texas
Interagency Coordination Center website at http://www.tamu.edu/ticc/ or email Tom Spencer of
the Texas Forest Service at tspencer@tfs.tamu.edu. The Texas Forest Service has developed
new drought web links to assist your county in monitoring drought conditions more closely. The
drought web links are as follows:
(1) Texas Forest Service Assessment page,
http://www.tamu.edu/ticc/fire_risk_as sessment.htm;
(2) Keetch-Byram Drought Index County Map,
http://webgis.tamu.edu/tfs/kbdi_daily/kbdicounty.png;
(3) U.S. Drought Monitor,
http ://www. drought. uni .edu/dm/monitor. html;
(4) Palmer Drought Index,
http://www.nnic.noaa.gov/products/analysis_monitoring/regional monitoring/palmer.gif; and
(5) Interactive Keetch-Byram Drought Index viewer,
http://sslgtw05 .tamu.edu/website/kbdi/viewer.htm.
If the Court decides to adopt an order, the order may prohibit or restrict the sale or use of
"restricted fireworks", which are defined as "skyrockets with sticks" and "missiles with fins", as
stated in 49 Code of Federal Regulations, § 173.100(r)(2). A violation of the order is a Class C
misdemeanor. Also, citizens can file suit for an injunction to prevent a violation of the order.
Any order issued by your Court will expire when the Texas Forest Service determines that your
county is no longer in a drought condition.
Under Local Government Code § 352.051(f), the county may also designate one or more "safe"
areas where the use of restricted fireworks is not prohibited. In my opinion, the county may also
designate a specific date or dates of which fireworks are permitted in the "safe" areas.
(512}-478-8753 1-(800)-456-5974 -FAX (512)-478-0519
We are enclosing a copy of Local Government Code § 352.051 and a sample prohibitory order
for your convenience. If your Court decides to designate "safe" areas, the order will need to be
modified to include appropriate language. Also attached is a memorandum from the Texas
Forest Service to the Texas Association of Counties referencing drought conditions outlook for
summer of 2003. If you have any questions, please contact the Legal Department toll-free at
888-275-8224.
Sincerely,
Robert L. Lemens
General Counsel
Enclosures (3)
STATE OF TEXAS §
COUNTY OF §
ORDER PROHIBITING CERTAIN FIREWORKS
IN UNINCORPORATED AREAS OF COUNTY, TEXAS
WHEREAS, the Texas Forest Service has determined that drought conditions exist in
County; and
WHEREAS, on the of , 2003, the Commissioners Court of County
has determined that the normal danger of fire in the unincorporated areas of County
is greatly enhanced by the extremely dry conditions now existing;
NOW, THEREFORE, the Commissioners Court of County adopts this Order
prohibiting the sale or use of restricted fireworks in the unincorporated areas of
County.
A. No person may sell, detonate, ignite, or in any way use fireworks classified under 49
C.F.R. part. 173.100(r)(2) (10-1-86 edition), as "skyrockets with sticks" and "missiles
with fins" in any portion of the unincorporated area of County.
B. This Order does not prohibit:
1. common fireworks, small in size classified as Class C explosives;
2. large fireworks devices designed primarily to produce visible or audible effects by
combustion, deflagration, or detonation and classified as Class B explosive by the
U.S. Dept. of Trans. [TEx. Occ. CODE, Chapter 2154].
C. A person commits an offense if the person knowingly or intentionally violates a
prohibition established by this Order. An offense under this order is a Class C.
Misdemeanor.
APPROVED THIS THE DAY OF , 2003, BY THE COUNTY
COMMISSIONERS COURT.
COUNTY JUDGE
Attest:
COUNTY CLERK
LOCAL GOVERNMENT CODE
Sec. 352.051. REGULATION OF RESTRICTED FIREWORKS.
(a) For the purposes of this section the following definitions shall apply:
(1) "Restricted fireworks" means only those items classified under 49 C.F.R. Sec. 173.100(r)(2) (10-1-
86 edition), as "skyrockets with sticks" and "missiles with fins".
(2) "Drought conditions" shall mean the existence immediately preceding or during the fireworks
season of a long-term deficit of moisture creating atypically severe conditions with increased wildfire
occurrence as defined by the Texas Forest Service through the use of the Keetch-Byram Drought Index,
or when such index is not available, through a comparable measurement which takes into consideration
the burning index, spread component, or ignition component for that particular area.
(b)
(1) The Texas Forest Service in the ordinary course of its activities shall determine whether drought
conditions, as defined under Subsection (a)(2), exist in all or part of any county requesting such
determination. The Texas Forest Service shall make available the measurement index guidelines that
determine whether a particular area is in drought condition. Following any determination that such
drought conditions exist, the Texas Forest Service shall notify said county or counties when such drought
conditions no longer exist.
(2) The Texas Forest Service shall be allowed to take such donations of equipment or funds as
necessary to aid in the carrying out of this section.
(c) Upon a determination under this section that drought conditions exist within all or part of a specified
county, the commissioners court of such county by order may prohibit or restrict the sale or use of
restricted fireworks in all or a portion of the unincorporated area of the county where drought conditions
have been determined to exist. In addition, during the December fireworks season, the commissioners
court of a county by order may restrict or prohibit the sale or use of restricted fireworks in specified areas
when conditions on rural acreage in the county not under cultivation for a period of at least 12 months are
determined to be extremely hazardous for the danger of fire because of high grass or dry vegetation.
(d) To facilitate compliance with an order adopted under Subsection (c), the order must be adopted
before:
(1) June 15 of each year for the Fourth of July fireworks season; and
(2) December 15 of each year for each December fireworks season.
(e) An order issued under this section shall expire upon determination as provided under Subsection (b)
that such drought conditions no longer exist.
(f) The county may designate one or more areas of appropriate size and accessibility in the county as
safe areas where the use of restricted fireworks is not prohibited. The safe area may be provided by the
county, a municipality within the county, or an individual, business, or corporation. A safe area may be
designated in and provided in the geographic area of the regulatory jurisdiction of a municipality if the
activity conducted in the safe area is authorized by general law or a municipal regulation or ordinance. An
area is considered safe if adequate public safety and fire protection services are provided to the area. A
county, municipality, individual, business, or corporation is not liable for injuries or damages resulting
from the designation, maintenance, or use of the safe area.
(g) A person selling any type of fireworks, including restricted fireworks, in a county that has adopted an
order under Subsection (c) shall, at every location at which the person sells fireworks in the county,
provide reasonable notice of the order and reasonable notice of any location designated under
Subsection (f) as a safe area.
(h) An affected party is entitled to injunctive relief to prevent the violation or threatened violation of a
requirement or prohibition established by an order adopted under this section.
(i) A person commits an offense if the person knowingly or intentionally violates a prohibition established
by an order issued under this section. An offense under this subsection is a Class C misdemeanor.
Legislative History
Leg.H. Stats. 1995 74th Leg. Sess. Ch. 500, Stats. 1997 75th Leg. Sess. Ch. 1399, effective September
1, 1997; Stats. 1999 76th Leg. Sess. Ch. 1244, effective September 1, 1999; Stats. 2001 77th Leg. Sess.
Ch. 1420, effective September 1, 2001 (renumbered from Sec. 240.904).
FOREST ,~ SERVICE
Leaders in Texas Forestry
Memorandum May 12, 2003
To: Texas Association of Counties
Re: Outlook for Summer 2003
With most of the State of Texas at 50% of annual precipitation through the above date, it
is very likely that drought conditions could exist across the State this summer. Since
Texas summers are usually hot and dry, entering this period in a precipitation deficit is a
concern for the potential risk for wildland fires. Early planning and preparations by each
county is recommended as we enter this summer. The Texas Forest Service will be
monitoring the drought and fire danger across the state, and will make notifications of
these conditions as they develop through our prevention efforts, and on our web site.
If you have any questions, please feel free to call Tom Spencer at 979 458 6530.
Tom Spencer
Fire Risk Assessment Coordinator
3833 So. Texas Ave., Suite 130
Bryan, Tx 77802
TEXAS ASSOCIATIOI~I OF COUI~ITIES
1204 San Antonio • Austin, TX 78701 ly of P.O. Box 2131 • Austin, TX 78768-2131
Sam D. Seale • Executive Director
May 20, 2003
Re: Adoption of County Burn Ban
Dear County Judges and Commissioners:
Due to the lack of rain in many parts of the state, it may he appropriate or necessary to prohibit
or restrict outdoor burning in the unincorporated areas of your county. The following procedural
summary and sample Order were prepared to explain the procedures to be followed when
making a decision about whether or not to adopt a burn Barr, and to simplify Court action.
There are two alternative methods to determine when circumstances warrant adoption of a burn
ban. Either (i) the Texas Forest Service makes a determination that drought conditions exist in
all or part of the county or (ii) the Commissioners Court makes a finding that circumstances
present in all or part of the unincorporated areas of the county create a public safety hazard that
would be exacerbated by outdoor burning. To obtain a determination from the Texas Forest
Service, please contact Tom Spencer at 979/458-6530. The Texas Forest Service has developed
new drought web links to assist your county in monitoring drought conditions more closely. The
drought web links are as follows:
(1) Texas Forest Service Assessment page,
http://www.tamu.edu/ticc/fire_risk_assessment.htm;
(2) Keetch-Byram Drought Index County Map,
http://webgis.tamu.edu/tfs/kbdi_daily/kbdicounty. png;
(3) U.S. Drought Monitor,
http://www.drought. uni. edu/dm/monitor.html;
(4) Palmer Drought Index,
http://www.nnic.noaa.gov/products/analysis_monitoring/regional monitoring/palmer.gif; and
(5) Interactive Keetch-Byram Drought Index viewer,
http://ssl gtw05 .tamu.edu/website/kbdi/vie wer.htm.
Restrictions against outdoor burning can be general or limited to a particular type of burning,
such as trash, brush or open campfires. The restrictions can also be applied to all the
unincorporated areas of the county or only limited portions of those areas of the county. You
should be aware, however, that the statute does not permit restrictions against outdoor burning
activities related to public health and safety that are authorized by the Texas Natural Resources
Commission for: (1) firefighter training; (2) public utility, natural gas pipeline or mining
operations; (3) planting or harvesting of agricultural crops; or (4) burns 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.
(512)-478-8753 1-(800)-456-5974 FAX (512)-478-0519
Once the Texas Forest Service determines that drought conditions exist or the Commissioners
Court finds a public safety hazard exists, the Court may adopt an order prohibiting or restricting
outdoor burning for a specific period of time, not to exceed 90 days from the date the order is
adopted. By law, the Court's order will expire at the earliest of (a) 90 days from the date of
adoption; (b) the date of a determination by the Texas Forest Service that drought conditions no
longer exist; or (c) the date of a finding by the Commissioners Court that a public safety hazard
no longer exists. The Court may adopt another order restricting burning at the expiration of any
previous order by following the same procedures. A sample Order, with alternative language, is
enclosed.
Violation of the Court's Order prohibiting or restricting outdoor burning is a Class C
misdemeanor, punishable by a fine not to exceed $500.00. Additionally, the law allows a
person to obtain an injunction to prevent the violation or threatened violation of the Court's
Order prohibiting or restricting outdoor burning. The Court may want to consider wide-spread
publication of its adoption of a burn ban to put county residents and others on notice of the
possible criminal penalties.
A copy of Local Government Code, § 352.081 (the Regulation of Outdoor Burning) is attached
for your reference. Also attached is a copy of a memorandum from the Texas Forest Service to
the Texas Association of Counties referencing drought conditions outlook for summer 2003. If
you have any questions about enacting a burn ban, please feel free to contact our legal
department toll-free at 888-275-8224.
Sincerely,
ROBERT L. LEMENS
General Counsel
Enclosures (3)
STATE OF TEXAS §
COUNTY OF §
ORDER [PROHIBITING OR RESTRICTING] OUTDOOR BURNING
[WHEREAS, the Texas Forest Service has determined that drought conditions exist
within the county;]
OR
[WHEREAS, the Commissioners Court finds that circumstances present in all or part of
the unincorporated area of the county create a public safety hazard that would be exacerbated by
outdoor burning;]
IT IS HEREBY ORDERED by the Commissions Court of County that [all
outdoor burning OR outdoor burning of (particular substance)] is [prohibited or
restricted] in [the unincorporated area of the county OR (specific part of the
unincorporated part of the county)] for 90 days from the date of adoption of this Order, unless
the restrictions are terminated earlier based on a determination made by the Texas Forest Service
or this Court. This Order is adopted pursuant to Local Government Code §352.081, and other
applicable statutes. This Order does not prohibit outdoor burning activities related to public
health and safety that are authorized by the Texas Natural Resources Commission for: (1)
firefighter training: (2} public utility, natural gas pipeline or mining operations; (3) planting or
harvesting of agricultural crops; or, (4} burns 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.
In accordance with Local Government Code § 352.081(h), a violation of this Order is a
Class C misdemeanor, punishable by a fine not to exceed $500.00.
ADOPTED this day of , 2003 by a vote of ayes and nays.
COUNTY JUDGE
Attest:
COUNTY CLERK
LOCAL GOVERNMENT CODE
Sec. 352.081. REGULATION OF OUTDOOR BURNING.
(a) In this section, "drought conditions" means the existence of a long-term deficit of moisture creating
atypically severe conditions with increased wildfire occurrence as defined by the Texas Forest Service
through the use of the Keetch-Byram Drought Index or, when that index is not available, through the use
of a comparable measurement that takes into consideration the burning index, spread component, or
ignition component for the particular area.
(b) On the request of the commissioners court of a county, the Texas Forest Service shall determine
whether drought conditions exist in all or part of the county. The Texas Forest Service shall make
available the measurement index guidelines that determine whether a particular area is in drought
condition. Following a determination that drought conditions exist, the Texas Forest Service shall notify
the county when drought conditions no longer exist. The Texas Forest Service may accept donations of
equipment or funds as necessary to aid the Texas Forest Service in carrying out this section.
(c} The commissioners court of a county by order may prohibitor restrict outdoor burning in general or
outdoor burning of a particular substance in all or part of the unincorporated area of the county if:
(1) 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.
(d) An order adopted under this section must specify the period during which outdoor burning is
prohibited or restricted. The period may not extend beyond the 90th day after the date the order is
adopted. A commissioners court may adopt an order under this section that takes effect on the expiration
of a previous order adopted under this section.
(e) An order adopted under this section expires, as applicable, on the date:
(1) a determination is made under Subsection (b) that drought conditions no longer exist; or
(2} a determination is made by the commissioners court that the circumstances identified under
Subsection (c)(2) no longer exist.
(f) 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.
(g) Any person is entitled to injunctive relief to prevent the violation or threatened violation of a
prohibition or restriction established by an order adopted under this section.
(h) A person commits an offense if the person knowingly or intentionally violates a prohibition or
restriction established by an order adopted under this section. An offense under this subsection is a
Class C misdemeanor.
Legislative History
Leg.H. Stats. 1999 76th Leg. Sess. Ch. 1435, effective August 30, 1999; Stats. 2001 77th Leg. Sess. Ch.
1185, effective June 15, 2001 (renumbered from Sec. 240.906).
FoRES~r , SER~II~E
Leaders in Texas Forestry
Memorandum May 12, 2003
To: Texas Association of Counties
Re: Outlook for Summer 2003
With most of the State of Texas at 50% of annual precipitation through the above date, it
is very likely that drought conditions could exist across the State this summer. Since
Texas summers are usually hot and dry, entering this period in a precipitation deficit is a
concern for the potential risk for wildland fires. Early planning and preparations by each
county is recommended as we enter this summer. The Texas Forest Service will be
monitoring the drought and fire danger across the state, and will make notifications of
these conditions as they develop through our prevention efforts, and on our web site.
If you have any questions, please feel free to call Tom Spencer at 979 458 6530.
Tom Spencer
Fire Risk Assessment Coordinator
3833 So. Texas Ave., Suite 130
Bryan, Tx 77802