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What Legal Action Can Be Taken Against Burn Ban Violators Who End Up Starting Wildfires?

Miguel Gutierrez Jr./KUT News
Officials haven't determined the official cause yet of the Hidden Pines Fire.

As of Thursday, the wildfire near Smithville in Bastrop County was well contained at 85 percent and had covered about 4,500 acres — that hasn't changed in several days. The Texas A&M Forest Service says the cause of the fire is still under investigation. But the Bastrop County Judge has said the fire was probably caused by one of two things: farm equipment that overheated or a fire built in violation of the county’s burn ban.

So, if someone is to be held responsible, what would that look like? After the Bastrop fires of 2011, victims sued the Bluebonnet Electric Cooperative after investigators determined the fires were started by trees falling onto power lines. In the case of these most recent fires, we don’t yet know what happened. But an individual’s actions might be to blame. And what if this person violated the burn ban? Are there criminal charges to be brought?

“You’ve heard that old saying, ‘well that ought to be against the law.’ Some things that people think are wrong aren’t against the law,” says Bryan Goertz, Bastrop County’s district attorney.

“Off the top of my head, a violation of a burn ban and nothing more is a Class C misdemeanor, punishable only by a fine. So you’re not gonna see, ‘hey you’ve got a Class C misdemeanor. With $100 million of restitution.’ That’s civil stuff.”

So victims of the fire could consider civil lawsuits – no jail time involved. In the case of the 2011 fires, Bluebonnet was a company  with decidedly more financial means that most individuals. In other words, when you sue someone for damages, they better have money. But there is a small grey area between criminal and civil when we talk about wildfire damage. Ignoring a burn ban may not be criminal.

“They didn’t intend for the fire to get out of control and burn a bunch of homes and they mistakenly did that, that would be a negligent criminal case. Those types of cases are even more rare,” says Bill Rossick, an attorney who represented families against Bluebonnet.

He says, sure – criminal negligence is possible, but highly unlikely. Either way, Bastrop County says it will not look to file any lawsuits. Right now, folks are focused on rebuilding and filing insurance claims. 

Audrey McGlinchy is KUT's housing reporter. Got a tip? Email her at Follow her on Twitter @AKMcGlinchy.
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