Tex. Local Gov't Code § 352.051 allows a county to ban the sale and use of certain types of fireworks if the Texas Forest Service has determined that drought conditions exist in the county. My county would like to go beyond that and ban the use of all fireworks this season by a declaration of disaster under Gov't Code §418.108 . The Court did this in December and wants to do it again. We are in a drought so we meet the definition of disaster in Chp. 418. Any thoughts on whether a declaration of disaster would allow us to go beyond what is allowed by 352.051? Thanks.

[This message was edited by russwm on 06-07-06 at .]

We're in the process of trying to peg that down. If you'll contact Dave Kemp, our First Assistant, he should be able to provide you with whatever we've come up with on that issue. I can give you his direct line and e-mail address if you'll e-mail me.

Good luck.

I would be interested in the answer you reach, also. We are in the same drought, with lots of nice, dry tender.....

Lisa

I'd like to see it, too. Thanks.

Ditto.

My commissioners discussed whether they wanted to ban all fireworks, and whether they could or not. Tabled until next meeting.
It is so dry that us folks in the Panhandle were encouraged to hear today that there will be more hurricanes this summer; hoping that the leftovers from one may come our way and stall out for a couple of weeks, rain about a foot and get us caught up.
Those in the know on banning fireworks need to let the others know what they know.
Thanks
John Hutchison
Hansford CA

We also looked at this (an outright ban on fireworks.) My conclusion was that because the legislature gave us limited authority to ban only "rockets with fins and missiles with sticks" (or "missiles with fins"...I could never keep them straight) they intended to limit us to only those two types of devices. As a fall back, we put together a plan to prohibit parking along certain county roads, which could be used to prevent people from stopping on the shoulder/bar ditch to shoot the fireworks. (It ended up getting bogged down in who would pay for the "no parking" signs and we did not actually implement the plan.) It may come up again as we get closer to the 4th of July. In any case, I will watch with great interest as our learned colleagues in Amarillo try to sort this out.

I am also interested in the results.

Hype and anticipation in buildup often lead to a disappointing climax. Not to steal Dave's thunder, but I believe we ultimately reached and implemented the same conclusion reached by my learned colleague from Lubbock County -- that our authority only reached as far as "rocket" style pyrotechnics. The fireworks industry folk joined us in a happy chorus with that limitation. Perhaps some legislative thought should be given to the reach of our authority to regulate outdoor burning in times of drought such that it would include incendiary devices that may ignite extremely dry indigenous fuels. I recognize that the potential to sweep the carelessly-tossed cigarette into the mix probably spells doom for such a proposal. So we're probably left only to increase taxes in order to keep putting fuel in our fire trucks as our part of the world burns up a few thousand acres at a time.

We are taking the position that we can ban all fireworks if our County Judge declares a local state of disaster under Gov't Code §418.108. Of course, that presupposes that conditions exist to meet the definition of disaster under §418.004. Executive Order RP32 extends to County Judges all authority in their County that the Governor has under the Disaster Act, including the authority under §418.019 to suspend the sale and dispensing of explosives and combustibles when a disaster has been declared. Therefore, a County Judge has authority to ban the sale of all fireworks if he issues a declaration of disaster.
We may be completely wrong and may get laughed out of Court, but it was succesful in Comal County last December, and anyone who lives in New Braunfels by definition has to be much smarter than someone who chooses to live in Midland. The final part of our strategy is to pray for several inches of rain.

I think I'm going to offer Russ' solution to my commissioners, along with the caveat that we may be reaching a bit. However, being a dry, rural area that watched with horror as Scott's jurisdiction burned (saying there but for the Grace of God burned we...) - I don't see much opposition.

Has anyone actually eyeballed the October 10, 1986 edition of 49 CFR 173.100(r)(2)? I can't locate anything older than about 1996 and it does not appear at all in the current CFR (at least as far as LexisNexis is concerned).

I've actually eyeballed it. I walked over to the State Library a couple of years ago and got them to pull it from the archives (one of the advantages of being here in Austin). I made a copy. So if you would like to eyeball it yourself, let me know and I will fax it to you.

That would be great. My fax number is (979) 732-9115.

I think we passed a burn ban that prohibited the USE of fireworks (not the sale). Since you can not ignite or burn combustible material, you can not "burn" fireworks. If you need this call me at the Johnson County Attorneys Office (Cleburne).

There are 3 or 4 fireworks posts running at the same time, so I'll re-post this here, too. Sorry you drew the black bean!
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Fireworks industry may sue over counties' bans

12:00 AM CDT on Saturday, June 17, 2006
By KAREN BROOKS / The Dallas Morning News


AUSTIN - A staple of Independence Day celebrations is under fire in parts of Texas, thanks to the state's drought.

Several counties ? including Collin, Denton and Tarrant ? have banned personal use of all fireworks, setting off a debate over whether they can do so without a statewide declaration of disaster. Dallas County has no ban, but cities can set their own rules.

The fireworks industry is threatening to sue, the counties are standing their ground, and the governor's office is staying out of the debate. So the issue is likely to be decided in court.

With a week to go before they open their stands for the July 4th business season, fireworks sellers say the counties are skirting the law and singling them out as a political statement to show citizens that they're working to prevent grass fires.

"The real heart of the matter, when you get down to it, is they just don't like fireworks," said Chester Davis, president of the Texas Pyrotechnics Association and owner of American Fireworks in Bastrop, which has 250 stands across the state. "They act like we're some fly-by-night gypsy organization that does this, but we've been in business for 100 years."

Concerned that fast-spreading fires could result from careless use of fireworks, some counties found what they believe is a loophole in state law. They contend that they can ban not just federally restricted fireworks like bottle rockets and missiles, but also Roman candles, sparklers, firecrackers, Black Cats and anything else sold out of the red-white-and-blue stands that dot the rural landscape.

"All we're trying to do, plain and simple, is prevent fires from breaking out," said Collin County Commissioner Jerry Hoagland. "What's going to happen? People are going to go ahead and buy them, and go ahead and fire them off, but if they get caught they can be fined."

State law allows counties to ban "restricted" fireworks during drought conditions. They can ban more than that when the governor has issued a statewide declaration of disaster, as he did in December, which halted the use of fireworks over New Year's. The declaration expired in May.

What isn't clear is what the counties can do when they have declared a local disaster but lack a statewide disaster declaration.

The counties say they'll enforce their bans unless the state attorney general tells them they can't.

Some county officials blame the governor for the confusion, saying that if he would enact a statewide disaster declaration, it would be easier for everyone.

"The fireworks industry has a very, very strong lobby in Austin," Mr. Hoagland said. "And whether any of this is motivated to respond to this heavy lobby, I don't know. I would suspect that it may be."

Kathy Walt, a spokeswoman for Mr. Perry, said the governor could still step in if local emergency management officials convince him that a statewide disaster should be declared.

"Those decisions are made in concert with local officials. He would not declare a disaster for the sole purpose of banning fireworks," she said.

Not all counties agree that bans are necessary or even allowed. Nacogdoches and Hays counties both enacted partial bans ? bottle rockets and missiles only ? because, they said, the law is too ambiguous.

"We've looked at it before, in the serious drought conditions that we've suffered, and we have strongly considered a complete ban of fireworks during those very dire times," said Nacogdoches County Attorney Jeff Davis. "However, the only statutory authority we have been able to locate speaks of those restricted fireworks."

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Originally posted by russwm:
Our local fireworks dealer has filed a lawsuit seeking an injunction against our order banning the use only of all fireworks and other combustibles. Any other counties been sued or threatened with suit? If anyone else has experience in defending an attempted injunction against a penal ordinance I would appreciate any bright ideas you would be willing to share. My phone number is 432(644-4491) and my email is malm@co.midland.tx.us

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Russell,

This phone number doesn't work. Couldy you fax a copy of the lawsuit to me at 432-524-5839.

Thanks,

John

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Originally posted by John L. Pool:
[

This phone number doesn't work.

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Well, crap. I have corrected the number to (. My cell phone is (.

[This message was edited by russwm on 06-22-06 at .]

[This message was edited by russwm on 08-05-10 at .]

Has it been set for a hearing yet?

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Originally posted by John L. Pool:
Has it been set for a hearing yet?

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8:30 a.m. tomorrow (Friday)