Texas's Right-to-Farm Summary

Legislators proposed a right-to-farm law in Texas as a tool to reduce the state’s loss of agricultural resources.1 Since the law was first passed in 1981, the number of operators in the state has grown by 27 percent, while the number of acres in farmland has dropped by 8 percent.2 So what does the state’s RTF laws do in practice?

Texas’s RTF Law at a Glance

Texas’s RTF law provides no explicit protection for farmland. Rather, Texas’s RTF law, like those present in the other forty-nine states, centers on protecting certain types of operations from nuisance suits when they impact a neighboring property, such as through noise or pollution. Texas defines nuisance as actions that cause (1) physical harm to a property; (2) physical harm to persons on their property by assaulting their senses or other personal injury; or (3) emotional harm to persons from the deprivation of the enjoyment of their property through fear, apprehension, or loss of peace of mind.3

Agricultural operations are protected from lawsuits in regard to such nuisances if they are engaged in soil cultivation, crop production, floriculture, viticulture, horticulture, silviculture, wildlife management, raising or keeping livestock or poultry, or agricultural land set aside in compliance with governmental conservation programs.4 However, in one case, property owners sued their neighbors who were raising chickens for cockfighting for noise and odor complaints. The owners of the fighting cocks claimed protection under Texas’s RTF law. The court disagreed and ruled that their operation did not qualify as “poultry” since the chickens were not intended for food.5

Texas courts have extended RTF protections to certain trespasses alongside nuisance, although trespass is not directly referenced in the statute. “Trespass” means the entry of a person onto another’s land or causing or permitting a thing to cross the boundary of the premises.6 For example, neighboring landowners sued a dairy farm for trespass due to the intrusions of manure onto their property following rainstorms. However, the court barred their action by drawing on the state’s RTF law.

Conditions and Activities

An agriculture operation is protected from nuisance suits if it has lawfully existed for one year.7 The one-year clock begins on the date operations commence. However, if the operation expands the size of its facilities, the one-year clock will restart from the date in which the expanded facility commences operation.8 In addition, an operation may expand the boundaries of its land occupied without restarting the one-year clock, so long as it does not also substantially change the nature of the operation.9

The one-year time clock and allowance for change has afforded agricultural operations broad immunity and limited neighbors’ ability to sue.10 One court ruling stipulated that operations had to “substantially” change for their clock to restart, adding another layer of nuisance suit protection.11 The same court also ruled that it does not matter when the complaining party discovers the nuisance but rather when the material circumstances of production began. Another court ruled that even if the operation changes but the nuisance claim does not (like flies, dust, or smell), the operation none-the-less is considered by the law to be unchanged.12 The court also ruled that the agricultural operation was not required to prove when its farm first began, just when it began spreading manure and plowing it into the soil. In a third case, a married couple who lived across the highway from a grain storage facility alleged that the dust from the operation blew onto their property. The court ruled that the storage facility was substantially unchanged for at least one year and thus received RTF protection from the nuisance lawsuit.13

Texas’s statute also protects agricultural “improvements” if the improvement is not prohibited by law at the time of construction or otherwise restricts the flow of water, light, or air onto other land.14 The law defines agricultural improvement as including “pens, barns, fences, and other improvements designed for the sheltering, restriction, or feeding of animal or aquatic life, for storage of produce or feed, or for storage or maintenance of implements.”15

Texas’s RTF law requires that agricultural operations adhere to federal, state, and local laws in order to receive protection from nuisance suits.16 Sixty property owners tried to use this criterion in their lawsuit against a cattle feedlot for nuisance, including flies, dust, and smell. They argued in part that the cattle feedlot was not operating lawfully, but the court ruled that the neighbors had not provided a clear enough argument to support their claim.17 In a more recent case, a court awarded plaintiffs $6 million in damages in 2019 and 2020 from nuisances related to sixteen poultry barns. When the nuisances were not abated, the court ordered Sanderson Farms to stop its farming activities. The Texas Commission on Environmental Quality had previously found Sanderson Farms in violation of nuisance statutes due to odors, noise, emissions, and runoff.18

Local Governance

Texas’s statute requires facilities to comply with local governmental regulations that existed at the time the operation began.19 Additionally, local governments can regulate any agricultural operation that risks the health and safety of residents.20 In accordance, political subdivisions such as cities and counties have some power to enact laws that pertain to agricultural operations. Additionally, if a city expands to include an existing operation, that existing operation is required to comply with regulations that impact health and safety.21

However, the power of local government remains limited. A 2009 bill introduced to Texas’s agricultural code bars the application of the state’s animal cruelty statutes to agriculture livestock. Because of this, local governments are prohibited from imposing their own animal cruelty regulations on livestock operations.22

Additionally, public hearings once required to permit such animal operations no longer exist in Texas.23

Attorney Fees

Any person who brings a lawsuit against an operation that qualifies for RTF protection is liable for all legal costs and expenses incurred by the agricultural operation in defending itself.24 This and similar language may have a chilling effect on the filing of nuisance suits in favor of industrial operators.25 In one case, owners of a horse ranch sued a dairy farm for allegedly discharging “90,000 gallons of thick, brown, sludgy toxic, dairy lagoon effluent” onto their property, killing their horses and damaging their land. The dairy operators filed a cross-claim for attorney fees. One of the ranch owners, representing herself, had to pay the dairy operators $100,000 in attorney fees, and her claims for prosecution were also dismissed. The court stated, “This case illustrates the dangers of proceeding pro se,” or self-representation in the court of law.26

  • 1. Tex. Agric. Code § 251.002 (1981).
  • 2. U.S. Department of Agriculture, USDA Quick Stats Tool: June 1981 Survey, Texas, distributed by National Agricultural Statistics Service, accessed December 1, 2020, https://quickstats.nass.usda.gov/results/162F2390-1ADF-354B-B8F3-A459D4125A48; “2021 State Agriculture Overview: Texas,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=TEXAS.
  • 3. Ehler v. LVDVD, L.C., 319 S.W.3d 817 (Tex. App. 2010).
  • 4. Tex. Agric. Code § 251.002 (2021).
  • 5. Hendrickson v. Swyers, 9 S.3d 298 (Tex. App. 1999).
  • 6. Ehler, 319 S.W.3d 817.
  • 7. Tex. Agric. Code § 251.004(a) (2021).
  • 8. Tex. Agric. Code § 251.003 (2021).
  • 9. Tex. Agric. Code § 251.004(a) (2021).
  • 10. William Patrick, “Sanderson Loses $6 Million Smell Suit,” Palestine (Tex.) Herald-Press, November 12, 2019.
  • 11. Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. 2003).
  • 12. Barrera v. Hondo Creek Cattle Co., 132 S.W.3d 544 (Tex. App. 2004).
  • 13. Cal-co Grain Company, Inc. v. Whatley, No. 13-05-120-CV, 2006 WL 2439973 (Tex. App. Aug. 24, 2006).
  • 14. Tex. Agric. Code § 251.006(a)-(b) (2021).
  • 15. Tex. Agric. Code § 251.006(c)(2) (2021).
  • 16. Tex. Agric. Code § 251.004 (2021).
  • 17. Barrera, 132 S.W.3d 544.
  • 18. Shelli Parker, “Sanderson Farms Fails to Comply with ‘Smell Suit’ Orders,” Athens (Tex.) Daily Review, October 16, 2020.
  • 19. Tex. Agric. Code § 251.005(b)(1) (2021).
  • 20. Tex. Agric. Code § 251.004(a) (2021).
  • 21. Tex. Agric. Code § 251.005(c) (2021).
  • 22. Tex. Agric. Code § 251.005(3) (2021), referencing Tex. Penal Code § 42.09(f) (2021).
  • 23. Steven H. Lee, “Farming Factory Giant, Corporate Hog Farms Are Gaining a Foothold in the Panhandle, but Small Operators Are Raising a Stink,” Dallas Morning News, July 30, 1995; Steven H. Lee, “Hog Farms Find Home in Texas but Some Neighbors Raise Health Concerns,” Dallas Morning News, October 3, 1999.
  • 24. Tex. Agric. Code § 251.004(b) (2021).
  • 25. Cordon M. Smart, “The ‘Right to Commit Nuisance’ in North Carolina: A Historical Analysis of the Right-to-Farm Act,” North Carolina Law Review 94, no. 6 (2016): 2097–154.
  • 26. Paselk v. Rabun, 293 S.W.3d 600 (Tex. App. 2009).