One of the most interesting proposals we have seen this session is HJR 9, which amends the Texas Constitution’s Bill of Rights (Article I) to grant “[a]n individual . . . the right to conduct activities on the individual’s homestead property to secure for the residents of that property access to food, water, electric power, and shelter, subject to laws protecting public health and safety and laws for the conservation and development of the natural resources of this state.” The proposal further authorizes the legislature to “enact laws to protect this right.”
At first blush, HJR 9 expresses the immense value Texans place on preserving private property rights and on the ability of property owners to fully enjoy the benefits of ownership. It also appeals to the reasonable desire to use private property to help meet the basic human needs of property owners and their families. In those ways, HJR 9 appears to be entirely Texan and consistent with the prevailing ethos of our state.
But . . . what might HJR 9 actually do if eventually adopted by the voters (which, we venture to guess, would almost certainly happen if it got to the ballot next November). While our crystal ball is no more reliable than anybody else’s, we can say with certainty that the creation of a positive constitutional right in such broad terms would very likely have significant legal ramifications beyond a homeowner’s freedom to keep chickens in the backyard or put solar panels on the roof of the house. HJR 9 is certainly one way to bite back at overly intrusive homeowner associations, but it goes a lot farther than that and could have unpredictable and potentially negative consequences for the very property owners it purports to protect.
Setting aside the HJR 9’s somewhat ominous implications for land use planning and residential real estate development, we have a number of concerns about the potential liability exposure that may flow from the proposal and the likelihood that it will create a substantial new field of litigation. First, HJR 9 permits certain “activities” on homestead property “to secure . . . access to food, water, electric power, and shelter.” What “activities” does HJR 9 have in mind and what are the scope and extent of the nexus between those protected activities and “secur[ing] access” to the four items specified in the amendment? At the very least, HJR 9 would appear to protect the homeowner’s right to cultivate crops and raise livestock on homestead property. In order to “secure access” to food obtained by agriculture and animal husbandry, even on such a small scale, a homeowner presumably would be permitted to construct the necessary improvements on the property, such as shelter for animals, storage for equipment and feed, fencing, lighting, ventilation, and other appurtenances. We’re not sure how the neighbors might feel about that, but we can be sure that if a bull got loose and damaged neighboring property (or worse, hurt somebody), there would definitely be a lawsuit.
The question then becomes one of insurance. Just how much “access to food” activity would or should a homeowner’s policy cover? What if the homestead farmer’s herbicide drifts onto the neighbor’s lawn or poisons the dog? What if fertilizer runs off into the neighbor’s pool and ruins the filtration system? What if so many rats invade the chicken coop that they infest the neighbor’s house, too? We can multiply the hypotheticals, but it’s pretty clear to us that homeowner’s insurance is not designed for the kinds of risks incurred by farm and ranch operations. But here’s another problem. If any of those things happen and the neighbor sues the homestead farmer, won’t the farmer simply assert his or her constitutional right to use the property to secure access to food and claim exemption from liability? What about premises liability claims? Farms and ranches can be hazardous places for many reasons. If my child goes over to my neighbor’s homestead farm to play with the farmer’s kids and gets hurt, what duty does the farmer owe? Presumably, the duty of a landowner to an invitee, but if I have a constitutional right to maintain certain potentially dangerous conditions on my property, does that vitiate the duty? And can any of this potential risk be adequately insured at a reasonable cost?
Securing access to water does not seem to present quite as vexed a question. In our view, homeowners ought to be able to take reasonable actions to collect as much water as they can and put the necessary equipment on their property to accomplish that. But what about, for example, drilling a water well? Does HJR 9 mean that I can now drill a well in the middle of town without a permit? Would water well permitting requirements fall within HJR 9’s “exception” for “laws for the conservation and development of the natural resources of our state”? What about limitations on the use of graywater, which implicate, for example, plumbing codes and other state and local regulations. Such regulations would seem to fall under HJR 9’s other exception for “laws protecting public health and safety,” but if I want to drill a well or use graywater to water my vegetable garden, would my constitutional right to “secure access to food” take precedence? How would a court begin to sort that out?
Access to electric power seems very problematic to us. As we noted above, it’s one thing to put solar panels on the roof. But what other activities for generating electric power might be protected under HJR 9? Putting a wind turbine on the property comes to mind. How about a waste to energy system? Can I burn the animal dung produced from my homestead farm for fuel? Who knows? As technology develops, some of the activities that are too expensive or impractical today may become entirely within the reach of individuals in the not-to-distant future. But without clear boundaries between what is constitutionally protected and what is not, attempts to regulate within HJR 9’s exceptions will undoubtedly become mired in litigation and require decades for the courts to even begin to develop a jurisprudence that anyone can rely on.
We realize all too well that this commentary is a bit scattershot, but HJR 9 breaks new ground and raises novel issues that simply cannot be accurately assessed or predicted. What we can say is that HJR 9 puts a constitutionally protected “right” to conduct unspecified “activities” in direct collision with federal, state, and local laws and regulations aimed at creating a safe environment for everybody. There is no question that government can go too far, but there is very real risk in using the courts to arbitrate what are essentially land use questions within the inherent police power of sovereign entities. And our comments have not even scratched the surface of the potential economic impacts of HJR 9, particularly on local property values and state and local tax bases.
One other point. As we noted above, HJR 9 authorizes the legislature “to enact laws to protect this right.” Look closely at what this provision actually says. It does not say that the legislature can “enact laws to limit this right” in the interest of “public health and safety” or “the conservation and development of the natural resources of this state.” HJR 9 clearly contemplates that those laws may exist and that, if they do, the individual right is “subject” to them. But why frame the legislature’s authority only in terms of protecting the right granted in HJR 9? Does HJR 9 tie the hands of the legislature in any way to legislate for “public health and safety” or “the conservation and development of natural resources”? In our view, this provisions suggests that the legislature’s role is to roll back local decisions that, after all, are made by elected officials accountable to local voters.
If it doesn’t do anything else, HJR 9 shifts even more power from local entities to the state. And while protecting private property rights, as HJR 9 seeks to do, falls squarely within the Texas tradition, centralizing power at the state level does not. When Texas voters adopted the current constitution in 1876, they rejected centralized power and vested primary authority in local communities. What has been unfolding in the past few legislative sessions represents a sea change in our attitude toward—and appetite for—centralized power. We should at least be cautious about this and make sure we know the ground under our feet.
