Happy New Year - Legislature Clarifies counties' authorties to ban fireworks in times of disaster

Happy New Year

Legislature Clarifies counties' authorties to ban fireworks in times of disaster
By Maria Sprow

Two years after one of the driest winters in the state, officials can now rest assured that they can take necessary measures to save life, land and property in the face of threats from wildfires — even if it is fireworks season.

Several bills passed by the 80th Legislature work together to clarify counties’ authority to ban fireworks during times of both disaster and drought.

Senate Bill 11 amended the Texas Disaster Act to give counties permission to ban all fireworks and combustibles during times of locally declared disasters, while House Bill 539 changed the legal age for purchasing fireworks from 12 to 16 and gave a numerical definition for what conditions constitute a drought.

The bill also outlawed a certain type of firework thought to be a significant fire hazard and allowed for an additional Cinco de Mayo fireworks selling period in border counties, among other provisions. Both bills included compromises between two groups that have historically stood opposed long into the night during legislative sessions: the fireworks industry and counties.

The legislation came at a time when clarifications regarding counties’ authority to ban fireworks were badly needed. Several lawsuits are on appeal across the state, filed by fireworks vendors upset over county judges’ decisions to ban the use and sale of combustibles during a time when much of the state was literally on fire. The legislation helps clarify that those county officials were acting in the best interest of their taxpayers, while allowing all counties to breathe more easily going into the upcoming New Year’s fireworks season.

On Fire and Under Fire

Many county officials will never forget the winter of 2005 and early 2006, when high temperatures, drought and wind triggered a series of more than 17,000 wildfires that quickly spread throughout the state. The wildfires started in November and kept fire departments, emergency responders and law enforcement officers busy and exhausted until April. In just two weeks, from Nov. 23 to Dec. 2, the Texas Forest Service had responded to 74 wildfires covering 17,000 acres. On Dec. 26 alone, there were 73 wildfires across the state, and the next day, Governor Rick Perry issued a statewide disaster declaration.

All along, county judges, sheriffs and fire marshals — particularly those in the central, north-central and northeast parts of the state — had been working to keep life and property safe. They used all the tools at their disposal, including the Texas Disaster Act of 1975, which has been interpreted to give the county judge the same authorities as the governor in times of a local disaster. In Comal County, Commissioner Jan Kennady, acting as county judge, banned the use and sale of combustibles on Dec. 30, hoping to have a Happy New Year.

December 2005 was the first time the county had ever taken such a measure, said District Attorney Geoff Barr.

“There had just been a 1,000-acre wildfire burning parts of Comal County and Guadalupe County. We had the Texas Forest Service begging our county to issue measures to guard life and property. We saw pleas coming in every direction to do what we could to stop the wildfires. We had brush fires all over the place,” Barr said. “We relied on the experts to tell us this wasn’t just a mere drought, this was a disaster drought.”

But it was fireworks season, and fireworks vendors in the area also wanted to celebrate the New Year, or at least sell during it. One fireworks vendor, Wayne Wildman, the owner of Mr. W. Fireworks, filed a lawsuit asking 274th District Judge Gary Steel to prevent the county from implementing the ban on the grounds that the county didn’t have the authority to ban all fireworks — only certain fireworks, according to the fireworks regulations statute in the Local Government Code.

On the morning of New Year’s Eve, a Saturday, the district judge ruled that community safety took priority over festivities and that the Disaster Act did give counties authority to ban all fireworks. But Wildman appealed and two other counties — Parker and Midland — also faced lawsuits for using the Disaster Act to ban fireworks. Any legislation clarifying the rules was more than a year away. In the meantime, several residents died in the wildfires. Whole towns were evacuated. Land and property were destroyed. County and local officials and volunteers did what they could and eventually the state saw rain.

But fireworks still loomed large during the legislative session. Complicating the issue is that climatologists were — and are — predicting more and more droughts in the years ahead, and rural areas are becoming less and less rural, meaning that more and more, unincorporated areas in counties are beginning to look like cities — but without the safety precautions and tools available, testified Don Lee, the executive director of the Conference of Urban Counties, during a House County Affairs Committee hearing on fireworks legislation that lasted several hours.

“You as a state and Legislature are going to deal with some phenomenon happening that are unique and that we have not had to deal with before. We are going from a state of 20 million people to a state of 40 million people from 2000 to 2030, and we know from projections from the state demographer that the majority of the housing and the majority of that population growth will take place outside of cities,” Lee told committee members.

Fireworks vendors, having already been banned in most cities, testified that they rely on business in the unincorporated areas for their financial stability, and any interruption of business during peak seasons is detrimental to their overall annual income. They complained of being an easy target for officials looking to find blame for wildfires and charged that counties had been inconsistent when it came to determining the conditions under which fireworks should be banned, though they acknowledged that misuse of their products was a safety concern.

“Every time something comes up, it seems like fireworks seem to be the problem. … We are constantly targeted,” Joe Daughtry with the Texas Fireworks Association told members of the House County Affairs Committee. “This is our livelihood. … Every time they get the authority to regulate fireworks, we lose authority to sell fireworks, and that is where our concern is.”

The discussions led to the passage of HB 539 by House County Affairs Chair Wayne Smith, who took a leadership role on the issue. Besides changing the age for legally buying fireworks from 12 to 16, the bill also added a new Cinco de Mayo fireworks selling season for border areas, so long as it is approved by the commissioners court, as well as a written statewide numerical definition for determining when a drought is in effect, using the Keech-Byram Drought Index. The Texas Forest Service said the number, 575, does not drift from previous practices.

Another piece of legislation, SB 11, amended the Texas Disaster Act (Government Code Section 418.108) to explicitly state that county judges have the authority to ban fireworks during a disaster, but only for 60 hours unless the governor grants a request for an extension. The language was clear enough for Comal County’s D.A. Barr to argue in court that the legislation makes the court case against the county moot, though the county is still waiting on the appellate court’s final ruling. “It’s our position that the court doesn’t have jurisdiction because the 80th Legislature clarified that we do have that authority,” Barr said.

The legislative session almost went the other way. The clarifying language did not get added to SB 11 until the last day of the session, May 28. The original language, tacked on to the bill late into the session on an amendment by Rep. Carl Isset, would have taken away a judge’s ability to ban anything more than what was already allowed in the fireworks regulations statutes.

That, county judges testified, would have been a disaster.

Defining Drought in Times of Non-Disaster

Though the original amendment language went mostly unnoticed inside SB 11, county officials and associations had been actively involved in making sure judges had the authority to ban all combustibles — including all fireworks — if needed. Officials argued that the authorities allowed in the fireworks regulations statute and the times allowed by the fireworks statute were not enough, especially considering the proposed changes, such as including a set numerical definition of a drought according to the Keetch-Byram Drought Index (KBDI) and using that number to determine whether a fireworks ban should be in place.

“I’m one of those guys who has to put those fires out when they start,” Brazos County Judge Randy Sims told the House County Affairs committee. “We do not curtail the use of fireworks, but when drought conditions do persist, we certainly do not want people shooting the rockets with fins and on and on and on, because it does create a problem for us.” Those testifying on behalf of the fireworks industry said fireworks are not the fire danger they were made out to be.

“We are looking to do something in here that is long-term to help some of the concerns in these counties with fires. The problem is misuse. We have a gross misuse with smaller rockets that is creating problems, it appears, in densely populated areas and in heavily populated counties,” fireworks advocate Daughtry said.

As a result, much of HB 539 addressed misuse and fireworks safety. The bill outlawed additional types of fireworks that fire marshals said had the most potential for starting wildfires and changed the legal age for buying fireworks from 12 to 16 — both important measures, said Harris County Fire Marshal Mike Montgomery. “Many of the fires that are started by fireworks are accidentally started by juveniles,” Montgomery said, adding that, at first, he had been concerned about placing a numerical definition for droughts in statute.

Previously, Section 352.051 had defined drought conditions as “the existence immediately preceding or during the fireworks season of a long-term deficit of moisture creating atypically severe conditions with increased wildfire occurrence as defined by the Texas Forest Service through the use of the Keetch-Byram Drought Index, or when such an index is not available, through a comparison measurement which takes into consideration the burning index, spread component or ignition component for that particular area.” The definition was broadly worded and left room to take into consideration other factors that contribute to how fires start and spread, such as wind speed and heat. Using a set KBDI value meant rules would be more clear-cut across the board, but some argued that a drought index number wasn’t the best indicator of fire threat. “One of the things that is interesting about KBDI is, we have come to use that as the means to determine fire risk. It was never intended to do that,” Montgomery testified during the legislative session. “It is a measure of soil moisture and it is only one of many factors that come into play when you’re looking at fire risk and fire danger. Fire weather is probably the number one thing we need to be looking at, the speed of the wind, the level of the humidity, the temperature and the topography. Those four things have a much greater affect on fire conditions and how fire is going to behave than the drought index. But the drought index is what we have used to determine when we can restrict the use and sale of fireworks … because it’s one thing that doesn’t change rapidly over time.”

Technically, because areas have different types of soils, some counties’ average and critical KBDI numbers will be higher or lower than others. The Legislature decided to use the KBDI of 575 — which according to the Texas Forest Service is the number they have long used when recommending counties implement or do not implement a fireworks ban — but for some counties, by the time their area has reached an index number that high, they would have already been facing a serious drought. For other counties, such as El Paso, implementing a fireworks ban just because the drought index had reached 575 may be excessive. There are also seasonal variances — winter KDBI numbers tend to have to be higher in order to indicate a severe drought, while numbers in the summer could indicate severe drought conditions even if they are much lower.

After the session ended, Tom Spencer, the fire risk assessment coordinator for the Texas Forest Service, said he did not believe putting a numerical definition into statute would have a major affect on counties.

“Prior to the law being passed, that was the same number we were using, so the number did not change,” he said.

The one thing that changed regarding the drought index number is that now, the county must have an average KBDI of 575 throughout the county, instead of just at least one area of the county. Often, Spencer said, counties can have an index in one area that is 150 or 250 points higher than in another area, so having to use an average may make it harder for counties on the “cusp” of a drought to implement a burn ban. On the other hand, since the Texas Disaster Act was amended, it shouldn’t pose a threat to public safety. “I think it was a compromise,” Spencer said. “If there really is a drought present out there, there shouldn’t be any problem making the threshold.”

For his part, Montgomery said he believes HB 539 will benefit counties’ ability to protect citizens from fires, and that using a set KBDI index number is “understood” and will make it easier to enforce future fireworks bans, if and when they are needed.

“I think that the legislation that passed this year was the first significant fireworks-related legislation passed to better safeguard our citizens,” he said. “December 2005 was an aberration, but I do believe that with the passage of 539 and with the clarification of the Texas Disaster Act, people will be safer.”

Comal County had not been the only county to ban fireworks and combustibles under the Texas Disaster Act, nor was it the only county to be sued for doing so.

Midland County Judge Mike Bradford had banned the use and sale of all combustibles during the 2006 July 4 holiday after conditions in the county combined to make grass fires an imminent threat. The county’s attorney, Russel Malm, had searched the statutes for a way to protect the county’s residents and property and believed the Texas Disaster Act provided a clear solution.

“The year before, we had had a lot of rain, and so the grass in the county had grown quite a bit, and then we went through a drought with very little rain for 8, 9, 10 months, so, we were incredibly dry. So you had an incredible amount of fuel — the grass and brush — along with the dry conditions. If a fire did start, it had the potential to be a tremendous disaster,” Malm said.

Again, fireworks sellers sued, seeking an injunction against the county in order to stop the ban from taking affect. The county argued that the civil court hearing the case didn’t have jurisdiction and that the only way to fight the ban was through a criminal case in which a person given a misdemeanor could argue that their charge should be dropped because the ban wasn’t legally valid. The lower court sided with the plaintiff; the appeals court sided with the county.

Legislation Almost a Public Safety Disaster

Though none of the legislation that passed during the 80th session directly addresses the Midland case because it was argued differently, Malm said that had the current legislation been in place earlier, there would not have been grounds for an injunction to stop the ban. “I don’t think anything in the legislation hurt what counties can do,” he said.

Losing that authority would have been detrimental to counties’ duty of protecting their taxpayers during disasters. Fireworks do cause fires around the state, which have resulted in personal injuries and serious economic and property losses. Despite the happy ending, the unthinkable almost happened: Up until the last day of session, May 28, the language in SB 11 had quietly but strongly favored the fireworks industry and would have made it illegal for county judges to overstep normal fireworks regulatory statutes during a local disaster declaration.

Senate Bill 11 was a homeland security bill focused on protection of the public. Included in it were provisions regarding general crimes, human trafficking, immunizations, terrorism, internal security, toll roads and crime. Late into the session, on May 21 as the bill passed through the House, Rep. Carl Isset added an amendment that would have made it illegal for county judges to use the Disaster Act to ban fireworks except for those eligible for banning in the fireworks statutes.

The intent was similar to that of an earlier bill Isett had authored, HB 3786, that had died in the House after county judges turned up to oppose the bill.

“I am one of those judges that used the Texas Disaster Act (to ban fireworks). I am comfortable with what I did,” Parker County Judge Mark Riley told the House County Affairs Committee during testimony on HB 3786 and HB 539. “This is made out to be a fight between county government and the fireworks industry and there is nothing farther from the truth. It’s about everybody having the ability to do their jobs and protect life and property, as you have charged us to do.”

But the SB 11 amendment didn’t mention fireworks, only the number of the statute governing the regulation of fireworks in times of drought: “A declaration under this section may include any restriction authorized by Section 352.051, Local Government Code, but may not exceed the scope of such a restriction.”

The amendment was one of 16 others laid out during the day and slipped by without gaining much attention. The House chamber adopted the language, though two representatives did question the amendment’s intent.

“You’re not trying to strip the county judges of any of their authority that they already have in place?” Rep. Joe Heflin, a former Crosby County judge, asked Isset.

“Absolutely not,” Isset said, adding he only wanted to ensure that the statute addressing the regulation of restricted fireworks remained the law even during times of disaster. “All we do is reaffirm what the Texas Association of Counties knows that what regulates fireworks, the driving code on that, and that’s 352.051 of the Local Government Code, and all the amendment said was 352.051 is what describes what counties can and cannot do, with respect to regulating fireworks or the use of fireworks, and all my amendment said was, you’ve got to follow 352.051.”

“Okay, so you are just saying that this is the law and the county judges have the authority to declare disasters and follow the law,” Heflin responded. “Yes, sir,” Isset answered.

Rep. Rick Noriega stepped in as well, telling the chamber that his commissioners court members were concerned that the amendment would not keep counties’ authority the same, but diminish its authority during the times it is most needed.

“I think there was perhaps some misunderstanding that what your amendment was doing would perhaps usurp the county’s authority and diminish the county’s ability to defend against the threat of wildfires or property destruction caused by fireworks during a drought,” Noriega said.

Isset again stated that it was not his intent to diminish county authority and again referenced a “TAC letter.”

But in its “Overview of Statutory Authority Regarding County Regulation of Fireworks’ turned into the House Committee on County Affairs during the 79th Interim, less than a year earlier, TAC had given several arguments in support of a counties’ authority to ban fireworks during a disaster and had concluded that counties’ authority was ultimately “unclear” under the current statutes.

“While the authority to issue a fireworks ban as part of a local disaster declaration is not specifically provided to counties in Section 418.108, it is also not excluded,” the TAC overview stated, going on to reference an 1980 Attorney General’s opinion and an Executive Order from Governor Rick Perry, both which indicated that county judges have the same authority as the governor during local disaster declarations. The governor’s authority to ban fireworks during a disaster is found Section 418.019, which explicitly allows the governor to suspend the sale of explosives, combustibles, beverages and firearms.

The bill was sent back to the House chamber, where again, the language was not addressed. After members of the House did not concur with the Senate on other issues, Fireworks and Fire Statistics According to the Texas Department of Insurance and the Texas State Fire Marshal’s Office, there were 93,914 fires in Texas in 2005 — one every six minutes. More than 57,900 of those were outdoor fires that destroyed around $125 million in vegetation, fields and property.

In November and December 2005 — the first months of the wildfire season — there were 25 deaths from fires and a total of 242 injuries, resulting in $90 million of damage. In December alone there were 11,330 reported fires. July had the second-highest total number of fires at 10,624. More than 800 of those were caused by fireworks, a dramatic increase compared to months in which fireworks cannot be bought and sold — just 20 fireworks-related fires in August and 24 in September. In December, fireworks were blamed for 207 fires. For the year total, fireworks resulted in a $1.6 million economic loss. The total number of fireworks-related fires increased from 510 and 500 in 2003 and 2004 to 1,344 in 2005, a 169-percent jump.

There were even more reported total fires in January 2006 — 13,171. In that month alone, 149 people were injured in fires, including 22 who died. The Fire Marshal’s Office determined that 244 of those fires were caused by fireworks, resulting in an economic loss of $183,839.

July 2006 had the next-highest number of fireworks-related fires for the year, at 228. The total number of fireworks-related fires for the year was 710. a House-Senate conference committee met and also chose to keep the Isett amendment. The committee’s report was adopted the next day.

The language was not changed until May 28, at which point legislators, perhaps finally convinced by a last-ditch county associationdriven legislative effort that the amendment had wrongly interpreted the intent of the Texas Disaster Act, made “technical corrections” to several sections of the bill.

Fireworks and Fire Statistics

According to the Texas Department of Insurance and the Texas State Fire Marshal’s Office, there were 93,914 fires in Texas in 2005 — one every six minutes. More than 57,900 of those were outdoor fires that destroyed around $125 million in vegetation, fields and property.

July 2006 had the next-highest number of fireworks-related fires for the year, at 228. The total number of fireworks-related fires for the year was 710.