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Texas AG Provides Guidance on Local Efforts to Curb Solar Development

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In February 2023, the County Attorney for Franklin County, Texas requested an opinion from the Texas Attorney General regarding the enforceability of a proposed county-wide moratorium on “commercial solar projects” and the authority of the Franklin County Commissioners Court to issue such a moratorium.

Relying on certain provisions of the Texas Transportation Codewhich empower commissioners courts throughout the state to make certain rules and regulations related to roads and transportation, the proposed moratorium, as submitted to the Texas Attorney General, prohibited:

  1. Any person, organization, or entity from starting or engaging in the construction or operation of a commercial solar facility or testing for the suitability of sites for a commercial utility scale solar facility; and
  2. Any officer, employee, office, administrative board or agency of the county from accepting, processing, denying or in any other way acting upon any application or request for any type of license, road permit, or approval related to a commercial solar facility.

In its August 2023 response, the Attorney General’s Office stated that a court would likely find Franklin County’s proposed moratorium invalid and unenforceable based on the Franklin County Commissioners Court’s lack of authority under Texas law. The reasoning provided by the Office of the Attorney General is summarized below:

Lack of Specific Authority: Under Texas law, the authority vested in commissioners courts is limited to that which is expressly granted by state law or necessarily implied from express powers.2 There is no statute specifically authorizing a commissioners court to impose a moratorium on the construction of a solar facility.

Lack of Authority Under the Transportation Code: In the language of the proposed moratorium, Franklin County bases its authority to impose the moratorium on certain provisions of the Texas Transportation Code.  While the Texas Transportation Code vests considerable authority in the commissioners courts of the state to regulate for the control, construction, maintenance and traffic of public roads, the moratorium reaches activity other than activity related to public roads and is thus invalid.

Lack of Authority Under the Health and Safety Code: In addition to considering the commissioners court’s authority pursuant to Texas Transportation Code statutes which are specifically cited in the moratorium, the Attorney General’s Office also considered a commissioners court’s possible authority under the Texas Health and Safety Code’s Section 121.003 which provides that “the commissioners court of a county may enforce any law that is reasonably necessary to protect the public health.”3 In interpreting the term “enforce” Texas courts limit it to mean executing or effectuating an existing law,meaning that the language of Section 121.003 of the Texas Health and Safety Code does not empower a commissioners court to enact or create new laws. Therefore, because the proposed moratorium seeks to create new law rather than enforce a specific pre-exiting law, it is beyond the scope of the commissioners court’s authority and therefore invalid.

While the response from the Attorney General’s Office suggests that the specific Franklin County moratorium would be unlikely to be successful if challenged, it did not shut the door on moratoriums on solar development generally, noting that its response did not consider a county’s authority to impose a moratorium under its “other regulatory powers.” Franklin County’s proposed moratorium highlights strategies that are unlikely to be successful, but other counties throughout the state seeking to limit the development and construction of utility-scale solar facilities now have the knowledge and opportunity to attempt to craft county rules and regulations that may be more likely to prevail, if and when challenged.  

1Tex. Transp. Code §§ 251.003, 251.016, 251.151, 251.152, and 251.153.

2State v. Hollins, 620 S.W.3d 400, 406 (Tex.  2020); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003).

3Tex. Health & Safety Code § 121.003(a).

4See, e.g., San Antonio River Auth. v. Austin Bridge & Rd., L.P., 601 S.W.3d 616, 625 (Tex. 2020) (quoting the American Heritage Dictionary for the proposition that “enforce” means to “compel observance of or obedience to”); Sheppard v. Thomas, 101 S.W.3d 577, 582 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (quoting Black’s Law  Dictionary for the proposition that “‘enforce’ means ‘to give force or effect to (a law, etc.); to compel obedience to’”).

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