When I was growing up, summer meant a pilgrimage to Moran for an extended visit with my maternal grandparents. Most of the year, we lived in a suburb of Cincinnati, with the conveniences of urban living – including garbage pickup. While Moran called itself a city (and still does, I believe) at least at that time, there was no provision for garbage disposal. My grandparents had a large concrete structure in the back yard, which resembled nothing as much as an immense beehive. It had steps that led up the side to a metal door, a small, square chimney, and a ground level metal door that fit quite snugly into the concrete. This was their garbage incinerator. Each day, we took trash out to it, climbed the steps, opened the door and tossed it in. Once every couple of weeks, Granddaddy would take a match and section of newspaper, open the door, light the paper and toss it in. The accumulated rubble would catch fire and burn for as long as the fuel lasted. As someone who was always afraid of fire, this process terrified me. One summer, Granddaddy had me help him clean out the accumulated ash in the structure through the ground level door. At that time, he showed me the multiple screens in the chimney which prevented sparks from flying out. While this incinerator would no doubt fail to pass scrutiny by those responsible for clean air standards today, it would have represented one of the few ways to burn trash during a burn ban!
It is no secret that our section of West Texas has experienced a dry winter and spring. The rains that fell during the Roundup helped; but by the following Tuesday, grass fires again dominated the local news. There was a time that an out of control burn was not likely to impact residences, utilities, or even the lives and livelihood of very many people. We were a very rural area, and blazes could decimate acres without coming near a residence. That time has ended. There are very few expanses of land in the Big Country where a fire can burn without consequence to anything but rangeland.
Realizing that these fires create not only dangerous situations but expensive ones, the Texas Forest Service and the Legislature have made it possible for the Commissioners Courts of Texas to ban open burning in their counties for a period of time up to ninety days, when needed. These bans are not imposed lightly; the members of the Commissioners Courts are well aware that they are inconveniencing people who need, either for range management or garbage disposal, to light a fire. The strictures of the Open Meetings Act require that the governing body of the county meet only at the times and in the places posted, adhering to a set agenda, and providing a set amount of notice. This means that, just because a heavy rain fell, the Commissioners can’t turn the next day and lift the ban. Rather, they must wait for their next regularly scheduled meeting and consider lifting the ban as part of the agenda. State law sets their meeting date as the second and fourth Mondays. The burn ban has become a standing item on the agenda, so that a good rain after the posting of the agenda can result in a lifting of the ban (rather than having to wait for the next meeting).
County Commissioners Courts are an interesting creation. Made up of five individuals (four commissioners and the county judge), each of whom has a vote, none of the five may countermand a decision of the group on his or her own. It is not uncommon for individuals to call a commissioner or judge and ask permission to burn during a ban. The judge may lift it for the county if and only if he enters a finding that the ban is no longer necessary. It can then be replaced the next time that the commissioners meet
Some folk have tried to avoid the ban by claiming that a barrel, or a pit, or other “container” is not “open burning”. The statute providing authority for a “burn ban” is found in the Local Government Code. It actually allows the Commissioners Court to define an illegal burn. In Nolan County, the definition –and intent – is to forbid any fire which is not so thoroughly contained that a spark or flame could escape and start a grass fire. My grandfather’s incinerator would probably be legal; anything short of that is probably not allowed.
The penalty for burning while under a ban is a maximum $500 fine, whether the fire gets away or not. Any peace officer who sees the fire may write a citation, which will land the person setting the fire in Justice Court. If the fire gets away, and damage is done to property, the person who violated the ban is liable for those damages in city court. In addition, he or she could be liable to the volunteer fire departments for the funds expended to put out a fire that should never have occurred.
No one can give an exception to the burn ban; be patient and wait…eventually it will rain.
Lisa Peterson is the County Attorney for Nolan County. Comments about this column may be e-mailed to firstname.lastname@example.org .