TEXAS PUBLIC POLICY FAVORS AGRICULTURE
Texans are fond of saying that the Lone Star State is “Open for Business.” This tag line is often used by politicians to signify that Texas laws promote business and are welcoming for companies who desire to operate here. However, it cannot be overlooked that agriculture in all of its forms is one of the biggest businesses in Texas.
Texas law makes it explicitly clear that “it is the policy of this state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products.” One way that the Texas Legislature has advanced this policy os through the Right to Farm Act, located at Chapter 254 of the Texas Agriculture Code.
One part of the Act — Section 251.004 — was written and operates to “reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be legally threatened, subject to suit, regulated, or otherwise declared to be a nuisance.”
STATUTE OF REPOSE SHORTENS TIME TO INITIATE NUISANCE ACTIONS AGAINST FARM OR AGRICULTURAL OPERATION
Section 251.004, limits nuisance and other legal actions, and operates as a statute of repose to restrict the period of time in which a suit may be brought. This statue has been recognized as a “statute of repose.” See Holubec v. Brandenberger, 111 S.W.3d 32, 38 (Tex. 2003). The statute provides as follows:
Sec. 251.004. NUISANCE OR OTHER ACTIONS. (a) No nuisance action or other action to restrain an agricultural operation may be brought against an agricultural operation that has lawfully been in operation and substantially unchanged for one year or more prior to the date on which the action is brought. A person who brings a nuisance action or other action to restrain an agricultural operation that is not prohibited by this section must establish each element of the action by clear and convincing evidence. This subsection does not restrict or impede the authority of this state or a political subdivision to enforce state law, including an enforcement action by the Texas Commission on Environmental Quality. For the purposes of this subsection, a substantial change to an agricultural operation means a material alteration to the operation of or type of production at an agricultural operation that is substantially inconsistent with the operational practices since the established date of operation.
(b) A person who brings a nuisance action or other action to restrain an agricultural operation and seeks damages or injunctive relief against an agricultural operation that has existed for one year or more prior to the date that the action is instituFarted or who violates the provisions of Subsection (a) is liable to the agricultural operator for:
(1) all costs and expenses incurred in defense of the action, including attorney’s fees, court costs, travel, and other related incidental expenses incurred in the defense; and
(2) any other damages found by the trier of fact.(c) This section does not affect or defeat the right of any person to recover for injuries or damages sustained because of an agricultural operation or portion of an agricultural operation that is conducted in violation of a federal, state, or local statute or governmental requirement that applies to the agricultural operation or portion of an agricultural operation.
JUDICIAL APPLICATION TO TRESPASS ACTIONS
The El Paso Court of Appeals has applied Section 251.004 to trespass actions based on the same alleged conditions and circumstances creating a nuisance. See Ehler v. LVDVD, L.C., 319 S.W.3d 817, 823-24 (Tex. App.—El Paso 2010, no pet.). In January 2024, the Austin Court of Appeals also applied Section 251.004 to trespass actions based on the same alleged conditions and circumstances creating a nuisance. See Adcock v. Cal-Maine Foods, Inc., No. 03-22-00418-CV, 2024 Tex. App. LEXIS 379, at *8 (Tex. App.—Austin Jan. 19, 2024, no pet. h.).
EFFECT OF STATUTE OF REPOSE – DISCOVERY DATE IRRELEVANT
The Texas Supreme Court has construed the statute of repose “to bar a nuisance action against a lawful agricultural operation one year after the commencement of the conditions or circumstances providing the basis for that action.” Holubec, 111 S.W.3d at 38.
“Thus, under the Act, it does not matter when the complaining party discovers the conditions or circumstances constituting the basis for the nuisance action.” Id. “Instead, the relevant inquiry is whether the conditions or circumstances constituting the basis for the nuisance action have existed for more than a year.” Id.; see Cal-Co Grain Co. v. Whatley, No. 13-05-120-CV, 2006 Tex. App. LEXIS 7536, 2006 WL 2439973, at *3 (Tex. App.—Corpus Christi-Edinburg Aug. 24, 2006, pet. denied) (mem. op.) (“The defense in Section 251.004(a) is intended to bar a nuisance action against a lawful agricultural operation one year after the commencement of the conditions or circumstances providing the basis for that action.”).
