As we do after every Texas Legislative Session, we’re here with a recap of the 87th Texas Legislature and the bills impacting agriculture. As you will see, it was a busy session with a number of ag-related bills being passed. We have linked each bill below to allow easy access to the full text.
Also, as has become tradition, J Pete Laney joined me on the Ag Law in the Field Podcast to discuss these bills and give us his thoughts from someone involved on the ground with the session. To listen to that episode, click here.
Finally, keep in mind that this is not a comprehensive list of every bill that has been passed, but we did our best to flag those that seem most important for most rural landowners.
Here is a list of key bills related to agriculture that passed this session:
This is a bill we have discussed at length before as it is really important for all livestock owners. This bill makes changes to the Texas Farm Animal Liability Act, including ensuring its applicability to working ranches, expressly stating that the Act can serve as a defense if the injured party is an employee or independent contractor, adding bees in a managed hive to the definition of “farm animal,” and requiring farm and ranch owners and lessees to post Farm Animal Liability Act signage. To read about these changes in more detail, click here and here. These amendments will be effective on September 1, 2021.
Another important bill for rural landowners to be aware of is HB 2730, which provides changes to the eminent domain process. This bill, effective January 1, 2022, does a number of things including:
- Requiring the Texas Attorney General to update the Landowner Bill of Rights every two years and requiring such changes to essentially go through the notice and comment rulemaking process;
- Adding additional requirements for persons involved in negotiating telecommunication, utility, railroad, or pipeline easements and providing a process for complaints to be filed with the Texas Real Estate Commission against right-of-way agents;
- Adding a number of requirements that must be included in an initial written offer made by a company with eminent domain power including a copy of the Texas Landowner Bill of Rights, an explanation of whether the offer includes remainder damages, an appraisal of the property, an instrument of conveyance including the terms required by statute or approved by the landowner, and the contact information for the entity;
- Identifying required terms that must be included in an instrument of conveyance for any easements to be granted to private entities for easements for certain pipeline or electric line easement;
- Modifying requirements for judges appointing special commissioners including adding in time limits for appointment and for strikes to be made;
HB 4107 also deals with eminent domain, but this bill involves the notice requirement for common carrier pipelines before a survey is conducted. You may recall from this prior blog post that entities with eminent domain power, including common carrier pipelines, have a right to conduct a preliminary survey of property that will potentially be acquired. HB 4107 requires that prior to conducting this type of survey, common carrier pipelines must provide notice to the property owner at least 2 days prior to entry. The notice must include certain limitations on the company’s rights during the survey. This bill is effective on September 1, 2021.
SB 725 requires a condemning entity to cover additional taxes or expenses if property loses its open space property tax valuation solely due to the condemnation. Additionally, it prohibits agricultural land from losing its exemption solely because it is subject to a right-of-way taken through condemnation if it it less than 200 feet wide and so long as. the remainder of the property qualifies for the open space valuation. This bill is effective on September 1, 2021.
HB 3833 is a big development on the property tax front. This bill eliminates the interest portion of the rollback penalty included when property is taken out of agriculture or wildlife use. Prior to this bill passing, when the use of land qualifying for open space tax valuation changed, the landowner was subject to a rollback penalty equal to the difference between the taxes imposed on the land and those that would have been imposed had the land been taxed at fair market value for the last three years, plus 5% interest. This bill removes the imposition of interest, leaving rollback as the difference in the taxes paid versus those that would have been paid at market value. This bill was effective upon signing on June 15, 2021.
HB 1480 makes it a criminal offense to cause certain harms resulting in over $500 in damage to an animal or crop facility. Prohibited activities include intentionally stealing, releasing, destroying, or otherwise causing the loss of animals or crops; damaging, vandalizing, or stealing any property from an animal or crop facility; breaking and entering an animal or crop facility with the intent to destroy or alter records, data, materials, equipment, crops, or animals; or entering or remaining on an animal or crop facility with the intent to commit a prohibited act. Violation of this statute constitutes a Class A misdemeanor of losses to the animal or crop facility are over $2,500 or a Class B misdemeanor if losses are between $500 – $2,500. A violator will also be required to pay restitution to a facility for losses caused, including reasonable court costs and attorney’s fees incurred in enforcing a restitution order. Additionally, a facility owner may seek injunctive relief against a person who engages in or threatens to engage in activity prohibited by this statute. This bill is effective on September 1, 2021.
This bill relates to those involved in the nursery and landscape business. This bill makes clear that a person who performs pest control work on growing plants, trees, shrubs, grass, or other horticultural plants must either have the required pesticide applicator license, or be working under the direct supervision of a person who holds the required applicator license. The individual workers are not required to each hold a license so long as they are directly supervised by someone who does. This was effective upon signing on May 15, 2021.
SB 760 imposed requirements on solar companies relating to the removal of solar generating facilities on agricultural land. It is similar to the wind facility removal bill that passed last session. It will require a contract for a solar power facility to provide that the company is responsible for removing the facilities from the landowner’s property. Additionally, upon the landowner’s request, the facility must also remove each road constructed on the property and fill any holes with soil similar to that found on the property. Further, the company must, at the request of the landowner if reasonable, remove rocks over 12″ in diameter excavated during the decommissioning/removal process, return the property to a tillable state, and restore the surface to the same condition before the project including reseeding pastureland with native grasses prescribed by a governmental agency if applicable. Solar facilities must also provide detailed financial assurance such as a bond or letter of credit as required by the statute. The provisions of this statute may not be contractually waived by the parties. This bill will be effective on September 2, 2021.
HB 5 relates to the expansion of rural broadband in Texas and basically lays the framework for this expansion. The bill modifies the requirements for persons selected to serve on the Governor’s Broadband Development Council, creates a broadband development office and spells out the duties and responsibilities of this office. This bill was effective upon signing of June 15, 2021.
HB 222 and HB 2004
Both of these bills relate to prescribed burning in Texas.
HB 222 provides liability protection for a burn boss, stating that a burn boss (person responsible for directing a prescribed burn under a written prescription plan) is not liable for property damage, personal injury, or death caused by or resulting from the burn in excess of the insurance requirements established by the Prescribed Burn Board for Certified and Insured Prescribed Burn Managers if the burn boss has (1) completed an accredited, approved prescribed burning training course; (2) satisfied the minimum experience requirements prescribed by the Board; and (3) has liability insurance coverage equal to or in excess $1 million for each single occurrence and a period minimum aggregate limit of at least $2 million. This liability limitation is not applicable if a burn boss commits gross negligence or intentionally causes damages.
HB 2004 deals with limited liability for a certified & insured prescribed burn manager (CIPBM). Specifically, it states that a CIPBM is not liable for property damage, personal injury, or death caused by or resulting from smoke that occurs more than 300′ away from the burn. Again, it does not apply to a CIPBM who commits gross negligence or intentionally causes damage.
Both bills are effective September 1, 2021.
SB 1118 creates the “On-the-Ground Conservation Program,” which will be developed and managed by the Texas State Soil and Water Conservation Board (TSSWCB). The purpose of the program is “to maximize public benefits by facilitating priority conservation measures and other soil and water conservation land improvement measures by landowners and operators in the state.” The TSSWCB may provide technical assistance, cost-share assistance, direct grants, and help in obtaining technical assistance, cost-share assistance, and direct grants from other sources. The bill is effective September 1, 2021.
This bill may be of interest to hunters in the state, as it allows Texas Parks and Wildlife to develop a rule for the issuance of digital tags for holders of hunting licenses.
Here is a brief description of some agricultural-related bills that failed this session:
HB 3948 was known as the “hemp clean up bill.” This bill would have excused institutions of higher education conducting hemp research from many of the fees and permitting requirements imposed on other hemp growers, expand the testing window to 30 days pre-harvest, allow a person whose license is suspended after planting may harvest the plants in the same manner as a license holder but may face limitations on the ability to sell the crop, create rules regarding immature plants in Texas, create a general hemp appropriations account, provisions for modifying a license if a change of ownership occurs, and promulgate rules related to the sale or manufacturing of consumable hemp products.
HB 316/SB 1145
These bills related to the labeling of cell-cultured products as “meat” or “poultry” and would have prohibited this practice as misleading branding and advertising. HB 316 and SB 1145 would have provided that the terms “beef,” “meat,” “pork,” and “poultry” do not include cell-cultured, plant-based, or insect-based food products and would have required a label such as “analogue,” “meatless,” “plant-based,” “cell-cultured,” “lab-grown” or similar to be included on the products.
This bill would have established a Surface Water and Groundwater Interaction Advisory Board to study the extent of interaction between surface water and groundwater in the state, identify challenges from this interaction, and develop approaches to mitigate those challenges.
This bill would have required Groundwater Conservation Districts, before granting or denying a permit, to consider whether the proposed use would unreasonably affect wells that are exempt from the requirement to obtain a permit under the Texas Water Code or GCD rules, such as exempt domestic or livestock wells.
Among other changes, SB 152 would have required that Groundwater Conservation Districts that have spacing rules for wells must provide notice of an application for a permit to drill or amend a will to landowners located wholly or partially within the spacing distances from other wells under the spacing rules and whose right to obtain a permit for a well would be affected if the GCD approves the application.