I have always believed that, with a very few exceptions, no one can grant permission to violate the law. I have preached this to my County Commissioners, that when they pass a burn ban, neither a commissioner, a pair of commissioners nor the County Judge have the authority to allow a burn.

Am I off base here? Is there something in the convoluted burn ban statutes that I'm not seeing?

The reason for burning is that, since there was a little rain, ranchers want to burn off brush to curtail fire danger - I see that, and am aware of my discretion when it comes to prosecuting it, but - can permission be granted?

Lisa L. Peterson
Nolan County Attorney

Lisa, I'm no expert on this, but could the burn ban ordinance be phrased to allow someone--the County Judge--to have the authority to temporarily lift the burn ban under certain conditions, such as within so many hours of substantial rain, etc.?

I don't know. There isn't a provision for that in the statute.

What would that do to liability? My feeling is that, if Commissioner WeakSpine OKs a burn and it gets away, I can probably get the county out of the lawsuit because we instituted the ban, and no one commissioner can bind the court. Unfortunately, that may make the commissioner liable, but the county is my client, not him.

Lisa L. Peterson
Nolan County Attorney

Do you have a fire marshal there? I used to see this in my previous county--Kendall--when we had burn bans. Even with a ban, though, people could request a permit for controlled burning. That way, there is a knowledgeable official checking to see if the controlled, permitted burn is appropriate. It also helps the commissioners because they can tell their constituents that it's not up to them--they have to get the permit from the fire marshal. If you want to take that route, e-mail me and I will get you some contact names in that county. (take out the dot in my posted address)

We've had this issue come up recently too. My deputies were trying to ticket people who were telling them they called "Commissioner X" and he said go ahead and burn. It looks like Chapter 153 of the Natural Resources Code might apply to your situation. It gives your commissioners an "out" and provides some liability protection to landowners who follow the proper procedures.

Lisa, I think you are right and have advised TPWD employees accordingly when the issue comes up.

I will email you a paper I wrote on the prescribed burn laws. It doesn't directly answer your question, but may be helpful.

Thank you for the paper. I appreciate the input of everyone; Ch 153 seems more applicable to timber, and, while I plan to suggest a county fire marshall, we don't have one yet.

Lots of good input...deeply appreciated.

Lisa L. Peterson
Nolan County Attorney