Texas prescribed burning laws

Note: [Bracketed comments in bold after sections are provided by the website author and are not official government statements]

Penal Code
Title 7. Offenses Against Property.
Chapter 28. Arson, Criminal Mischief, and other Property Damage or Destruction. (Entire chapter)
Sections:
28.01. (Definitions.)
28.02. (Arson)

Penal Code
Section 28.01. (Definitions.)
In this chapter:
(1) "Habitation" means a structure or vehicle that is adapted for the overnight accommodation of persons and includes:
         (A) each separately secured or occupied portion of the structure or vehicle; and
          (B) each structure appurtenant to or connected with the structure or vehicle.
(2) "Building" means any structure or enclosure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.
(3) "Property" means:
          (A) real property;
          (B) tangible or intangible personal property, including anything severed from land; or
          (C) a document, including money, that represents or embodies anything of value.
(4) "Vehicle" includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation.
(5) "Open-space land" means real property that is undeveloped for the purpose of human habitation.
(6) "Controlled burning" means the burning of unwanted vegetation with the consent of the owner of the property on which the vegetation is located and in such a manner that the fire is controlled and limited to a designated area.

Section 28.02. (Arson)
(a) A person commits an offense if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage:
          (1) any vegetation, fence, or structure on open-space land; or
          (2) any building, habitation, or vehicle:
                      (A) knowing that it is within the limits of an incorporated city or town;
                      (B) knowing that it is insured against damage or destruction;
                     (C) knowing that it is subject to a mortgage or other security interest;
                      (D) knowing that it is located on property belonging to another;
                      (E) knowing that it has located within it property belonging to another; or
                      (F) when the person is reckless about whether the burning or explosion will endanger the life of
                          some individual or the safety of the property of another.
(b) It is an exception to the application of Subsection (a)(1) that the fire or explosion was a part of the controlled burning of open-space land.
[If a controlled fire as defined in Section 28.01, remains onsite and controlled, arson was not committed.]

Texas Administrative code
Section 111.201. (General Prohibition.)
No person may cause, suffer, allow, or permit any outdoor burning within the State of Texas, except as provided by this subchapter or by orders or permits of the commission. Outdoor disposal or deposition of any material capable of igniting spontaneously, with the exception of the storage of solid fossil fuels, shall not be allowed without written permission of the executive director. The term, executive director, as defined in Chapter 3 of this title (relating to Definitions), includes authorized staff representatives.
[Unless specifically exempted, all outdoor burning is prohibited.]

Section 111.203. (Definitions.)
Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (commission), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Extinguished-The absence of any visible flames, glowing coals, or smoke.
(2) Landclearing operation-The uprooting, cutting, or clearing of vegetation in connection with conversion for the construction of buildings, rights-of-way, residential, commercial, or industrial development, or the clearing of vegetation to enhance property value, access or production. It does not include the maintenance burning of on-site property wastes such as fallen limbs, branches, or leaves, or other wastes from routine property clean-up activities, nor does it include burning following clearing for ecological restoration.
(3) Practical alternative-An economically, technologically, ecologically and logistically viable option.
(4) Prescribed burn-The controlled application of fire to naturally-occurring vegetative fuels under specified environmental conditions and confined to a predetermined area, following appropriate planning and precautionary measures.
[The Texas Natural Resource Conservation Commission is now the Texas Commission on Environmental Quality]

Section 111.211. (Exception for Prescribed Burn.)
Outdoor burning shall be authorized for:
(1) Prescribed burning for forest, range and wildland/wildlife management purposes, with the exception of coastal salt-marsh management burning. Such burning shall be subject to the requirements of §111.219 of this title (relating to General Requirements for Allowable Outdoor Burning), and structures containing sensitive receptors must not be negatively affected by the burn. When possible, notification of intent to burn should be made to the appropriate commission regional office prior to the proposed burn. Commission notification or approval is not required.
(2) Coastal salt-marsh management burning conducted in Aransas, Brazoria, Calhoun, Chambers, Galveston, Harris, Jackson, Jefferson, Kleberg, Matagorda, Nueces, Orange, Refugio, and San Patricio Counties. Coastal salt-marsh burning in these counties shall be subject to the following requirements:
          (A) All land on which burning is to be conducted shall be registered with the appropriate commission
          regional office using a United States Geological Survey map or equivalent upon which are identified
          significant points such as roads, canals, lakes, and streams, and the method by which access is made
          to the site. For large acreage, the map should be divided into manageable blocks with identification for
          each defined block. The information must be received for review at least 15 working days before the
          burning takes place.
          (B) Prior to any burning, notification, either verbal or written, must be made to, and authorization must be
           received from the appropriate commission regional office. Notification must identify the specific area
          and/or block to be burned, approximate start and end time, and a responsible party who can be
          contacted during the burn period.
          (C) Such burning shall be subject to the requirements of §111.219 of this title.
[If the requirements of Section 111.219 (next Section) are met, prescribed burning is an exemption to the general prohibition of outdoor burning. The Texas Commission on Environmental Quality prefers to be notified before a burn, but does not require it.]

Section 111.219. (General Requirements for Allowable Outdoor Burning.)
Outdoor burning which is otherwise authorized shall also be subject to the following requirements when specified in any section of this subchapter.
(1) Prior to prescribed or controlled burning for forest management purposes, the Texas Forest Service shall be notified.
(2) Burning must be outside the corporate limits of a city or town except where the incorporated city or town has enacted ordinances which permit burning consistent with the Texas Clean Air Act, Subchapter E, Authority of Local Governments.
(3) Burning shall be commenced and conducted only when wind direction and other meteorological conditions are such that smoke and other pollutants will not cause adverse effects to any public road, landing strip, navigable water, or off-site structure containing sensitive receptor(s).
(4) If at any time the burning causes or may tend to cause smoke to blow onto or across a road or highway, it is the responsibility of the person initiating the burn to post flag-persons on affected roads.
(5) Burning must be conducted downwind of or at least 300 feet (90 meters) from any structure containing sensitive receptors located on adjacent properties unless prior written approval is obtained from the adjacent occupant with possessory control.
(6) Burning shall be conducted in compliance with the following meteorological and timing considerations:
          (A) The initiation of burning shall commence no earlier than one hour after sunrise. Burning shall
          be completed on the same day not later than one hour before sunset, and shall be attended by a
          responsible party at all times during the active burn phase when the fire is progressing. In cases where
          residual fires and/or smoldering objects continue to emit smoke after this time, such areas shall be
         extinguished if the smoke from these areas has the potential to create a nuisance or traffic hazard
         condition. In no case shall the extent of the burn area be allowed to increase after this time.
          (B) Burning shall not be commenced when surface wind speed is predicted to be less than six
          miles per hour (mph) (five knots) or greater than 23 mph (20 knots) during the burn period.
          (C) Burning shall not be conducted during periods of actual or predicted persistent low-level
          atmospheric temperature inversions.
(7) Electrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber must not be burned.
[For exemption, Texas Forest Service must be notified before a burn and specific fire timing, fuel, and smoke requirements met]

Section 111.221. (Responsibility for Consequences of Outdoor Burning.)
The authority to conduct outdoor burning under this regulation does not exempt or excuse any person responsible from the consequences, damages, or injuries resulting from the burning and does not exempt or excuse anyone from complying with all other applicable laws or ordinances, regulations, and orders of governmental entities having jurisdiction, even though the burning is otherwise conducted in compliance with this regulation.
[Local ordinances have priority over state laws.]

Natural Resources code
Section 153.002. (Landowner’s right to conduct burns not limited.)
This chapter does not limit a landowner's right to conduct burns on the landowner's property.

Section 153.003 (Liability)
This chapter does not modify a landowner's liability for property damage, personal injury, or death resulting from a burn that is not conducted as provided by this chapter.
[There is no liability protection for damage if the requirements of Section 153.047 are not met.]

Section 153.047. (Prescribed burning standards.)
Minimum standards established by the board for prescribed burning must:
(1) ensure that prescribed burning is the controlled application of fire to naturally occurring or naturalized vegetative fuels under specified environmental conditions in accordance with a written prescription plan:
          (A) designed to confine the fire to a predetermined area and to accomplish planned land management
          objectives; and that conforms to the standards established under this section;
(2) require that at least one certified prescribed burn manager is present on site during the conduct of the
prescribed burn;
(3) establish appropriate guidelines for size of burning crews sufficient to:
          (A) conduct the burn in accordance with the prescription plan; and
          (B) provide adequate protection for the safety of persons and of adjacent property;
(4) include standards for notification to adjacent land owners, the Texas Natural Resource Conservation Commission [now the Texas Commission on Environmental Quality], and local fire authorities; and
(5) include minimum insurance requirements for certified prescribed burn managers.
[To conduct a prescribed burn, a state-certified burn manager with adequate insurance and sufficient personnel and equipment must be present; and plans made for notification of neighbors, the Texas Commission on Environmental Quality, and local fire agencies.]

Section 153.048. (Certification of prescribed burn managers.)
(1) Minimum standards established by the board for certification as a prescribed burn manager must require the completion of the approved training curriculum to be developed and promulgated by the board and taught by an approved instructor.
(2) The board shall certify a person as a prescribed burn manager if the person:
          (A) applies to the board for certification;
          (B) demonstrates completion of an approved training program by an approved instructor; and
          (C) pays a fee to the board in an amount determined by the board.
(3) The certification is for five years.
(4) A person may renew certification only by completing a continuing education program established by the board.
(5) The board shall maintain a register of certified prescribed burn managers and dates of completion of initial and continuing training.

Section 153.081. (Limitation of owner liability.) [Assuming that the burn manager has required insurance]
(1) Subject to Section 153.082, an owner, lessee, or occupant of agricultural land is not liable for property damage or for injury or death to persons caused by or resulting from prescribed burning conducted on the land owned by, leased by, or occupied by the person if the prescribed burning is conducted under the supervision of a certified prescribed burn manager.
(2) This section does not apply to an owner, lessee, or occupant of agricultural land who is a certified prescribed burn manager and conducts a burn on that land.
(3) In this section, "agricultural land" means land that is located in this state and that is suitable for:
          (A) use and production of plants and fruits for human or animal consumption or plants grown for the
          production of fibers, floriculture, viticulture, horticulture, or planting seed;
          (B) forestry and the growing of trees for the purpose of rendering those trees into lumber, fiber, or other
          items used for industrial, commercial, or personal consumption;
          (C) domestic or native farm or ranch animals kept for use or profit; or
          (D) management of native or exotic wildlife.

Section 153.082. (Insurance.)
The limitation on liability under Section 153.081 does not apply to an owner, lessee, or occupant of agricultural land unless the certified prescribed burn manager conducting a burn on the land has liability insurance coverage:
          (1) of at least $1 million for each single occurrence of bodily injury or death, or injury to or destruction of
          property; and
          (2) with a policy period minimum aggregate limit of at least $2 million.

Bobby Young, Associate Director and State Fire Chief at the Texas Forest Service, was extremely helpful with clarifying these laws and his help was greatly appreciated.

Important disclaimer: The content and opinions expressed on this web page do not necessarily reflect the views of nor are they endorsed by the University of Georgia or the University System of Georgia

Selected Texas prescribed burning laws