The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Oscar Ii. Mauzy, Chairman Opinion No. MN-563
Supreme Court Building
P. 0. BOX 12546
Committee on Jurisprudence
Austin. TX. 76711.2546 Texas State Senate Ri: Validity of ordinances
512l475~2501 State Capitol Buflding enacted by v.f?bv. a general
Telex 9101674.1367 Austin, Texas 78711 law city
Telecopier 51214750266
Dear Senator Mauzy:
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709 In 1979, the city of Kirby. which Is a general law city. enacted
2141742-6944 an ordinance entitled:
4824 Alberta Ave.. Suite 160
An ordinance regulating the keeping of animals
El Paso. TX. 79905-2793 including but not limited to, livestock, fowl.
91515353464 dogs and cats within the city limits of the city
of Kirby; prescribing sanitary conditions for pens
and enclosures; providing exceptions; providing a
Dallas Ave., Suite 202
h--4lon. TX. 770026966
penalty not to exceed two hundred dollars
71316500666 ($200.00); and repealing all ordinances or parts
of ordinances in conflict,herewith.
606 Broadway. Suite 312 You have asked whether this ordinance conflicts with section 251.001
Lubbock. TX. 79401.3479
8061747.5236
et seq. of the Agriculture Code. Acts 1981. 67th Leg., ch. 693. at
2595, Incorporating Acts 1981. 67th Leg., ch. 124. at 313 (codified as
article 165b-1. V.T.C.S.). You have also Inquired about the legality
4309 N. Tenth. Suite B of certain actions taken by the mayor and city council of Kirby.
McAllen, TX. 78501-1665
512l6624547
Section 251.002 of the Agriculture Code provides:
200 Main Plaza. Suile 400 In this chapter:
San Antonio, TX. 76205.2797
51212254191 (1) ‘Agricultural operation’ includes but is
not limited to the following activities:...
An Equal Opportunity/ raising or keeping livestock or poultry....
Affirmative Action Employer
(2) ‘Governmental requirement’ includes any...
ordinance.. . promulgated by a... city... that has
the power to enact or promulgate [it].
Section 251.004 of the code provides:
(a) No nuisance action may be brought against
an agricultural operation that has lawfully been
p. 2064
Honorable Oscar H. Mauzy - Page 2 ,(MW-563) .
in operation for one year or more prior to the
date on which the action is brought, if the
conditions or circumstances complained of as
constituting the basis for the nuisance action
have existed substantially unchanged since the
established date of operation. This subsection
does not restrict or Impede the authority of this
state to protect the public health, safety. and
welfare or the authority of a municipality to
enforce state law.
(b) A person who brings a nuisance action for
damages or Injunctive relief against an
agricultural operation that has existed for one
year or more prior to the date that the action is
Instituted or who violates the provisions of
Subsection (a) of this section is liable to the
agricultural operator for all costs and expenses
incurred in defense of the action. including but
not limited to attorney’s fees, court costs;
travel, and others related incidental expenses
Incurred in the defense.
(c) This section does not affect or defeat the
right ‘of any person to recover for injuries or
damages sustained because of an agricultural
operation or portion of an agricultural operation
that Is conducted in violation of a federal,
state, or local statute or governmental
requirement that applies to the agricultural
operation or portion of an agricultural operation.
The fundamental question is whether section 251.004 llmits the
power of a municipality to enforce an ordinance that declares certain
activities to be “nuisances.” For the following rea,aons, we answer in
the negative. We therefore conclude that the cdty of Kirby may
enforce its livestock ordinance without violating section 251.004.
The key words in section 251.004 are “nuisance action.” If a
particular legal proceeding does not constitute a “nuisance action”
within the meaning of,this section , the section is not triggered. Our
task, therefore, Is to determine what the term “nuisance action”
embraces.
Professor Prosser has observed that “[tlhere is perhaps no more
impenetrable jungle in the entire law than that which surrounds the
word ‘nuisance.“’ W. Presser, liandbook of the Law of Torts 571 (4th
ed. 1971). The term is difficult to define. Stoughton, v. City of
Fort Worth. 277 S.W.2d 150, 152-53 (Tex. Civ. App. - Fort Worth 1955.
no writ), offers this overview of “nuisance” law:
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Honorable Oscar H. Hauzy - Page 3 (m-563)
In a broad sense, a nuisance is anything that
works injury, harm or prejudice to an individual
or the public.... A nuisance has also been defined
a8 anything that ‘obstructs, impairs or destroys
the reasonable, peaceful, and comfortable use of
property....’ ‘A nuisance per se is generally
defined as an act,. occupation, or structure which
is a nuisance at all times and under any
circumstances, regardless of location or
surroundings....’ ‘Acts which are, denounced as
illegal by law, when the perpetration of them
invade the rights of others will be nuisances per
se.... ’ A public nuisance exists wherever acts or
conditions are subversive of public order. or
constitute an obstruction of. public rights.
(Citations omitted).
Nuisances are classified as “private” or “public.” A “private”
nuisance is a civil wrong, based on a disturbance of one’s right to
use or enjoy land. The remedy for it lies in the hands of the
individual whose rights have been disturbed. Be may, for example,
seek either injunctive relief, see, e.g., O’Dauiel v. Libal, 196
S.W.Zd 211 (Tex. Civ. App. - Waco 1946, no writ), or damages, m
$&w Vestal v. Gulf Oil Corporation, 235 S.W.Zd 440 (Tex. 1951). A
public” nuisance, on the other hand. involves some substantial
interference with the rights of the community at large, such as with
the public health, peace or comfort. Usually~ public nuisances are
designated as such by a statute or ordinance. Where this Is the case,
the governmental entity which enacted the law will be responsible for
enforcing it. See generally Storey v. Central Hide and Rendering
Company, 226 S.W.2d 615 (Tex. 1950); McKee v. City of Mt. Pleasant,
328 S.W.2d 224 (Tex. Civ. App. - Texarkana 1959. no writ); Stoughton
v. City of Fort Worth, supra; W. Presser, crupra, at 572-602.
We conclude that the legislature’s Intent in enacting section
251.004 was simply to limit the circumstances under which suits may be
brought against “agricultural operations” that are not being conducted
in violation of any law. In other words, where alegal proceeding
alleges that an “agricultural operation” constitutes a “nuisance,” but
the operation Is not being conducted in violation of any statute or
ordinance, such a proceeding would constitute a “nuisance action”
within the meaning of section 251.004. Proceedings for damages or
injunctive relief initiated by private individuals would fit in this
category. On the other hand, vhere a proceeding is initiated to
enforce a statute or ordinance, it would not constitute a “nuisance
action” under section 251.004.
The language of section 251.004 supports this conclusion. See
State v. Terrell. 588 S.W.2d 784 (Tex. 1979) (legislative intent tobe
ascertained from statutory language). In particular, two provisions
p. 2066
Honorable Oscar H. gauzy - Page 4 (lC+‘-563)
in this section make it clear that the legislature did not intend this
section to have any effect upon proceedings brought to enforce a
statute or ordinance. The first is the sentence In subsection (a)
which states that the subsection “dots ‘not restrict or impede the
authority of this state to protect the public health, safety. and
welfare or the authority of a municipality to enforce state law.” The
second is the statement in subsection (c) that “[tlhls section does
not affect... the right of any person to recover for injuries or
damages sustained because of an agricultural operation... conducted in
violation of a federal, state. or local statute....”
Additional support for our conclusion can be found by examining
section 251.005 of the code. See Merchants Fasts Motor Lines. *i::.
-- v.
Railroad Commission of Texas, 5yS.W. 2d 502 (Tex. 1978) (legislative
intent to be determined by looking at entire act. not just isolated
portions thereof). It provides in part: ..
(a) #or purposes of this section. the
effective date of a governmental requirement is
the date on which the requirement requires or
attempts to require compliance as to the
geographic area encompassed by the agricultural
operation. The recodification of a municipal
ordinance does not change the original effective
date to the extent of the original requirements.
....
(c) A governmental requirement of a city does
not apply to any agricultural operation situated
outside the corporate boundaries of the city on
the effective date of this chapter. If an
agricultural operation so situated Is subsequently
annexed or otherwise brought within the corporate
boundaries of the city. the governmental
requirements of the city do not .apply to the
agricultural operation unless the. requirement is
reasonably necessary to protect persons who reside
in the immediate vicinity or persons on public
property in the immediate vicinity of the
agricultural operation from the danger of
explosion, flooding. vermin, insects, physical
injury, contagious disease, removal of lateral or
subjacent support, contamination of water
supplies, radiation, storage of toxic materials,
discharge of firealms. or traffic hazards.
When sections 251.004 and 251.005 are considered in pari materla,
it becomes clear that the legislature has limited both the power to
initiate “nuisance actions” which do -.
not seek enforcement of a lav or
p. 2067
Honorable Oscar H. Mauzy - Page 5 W~S63)
ordinance and the enforceability of laws and ordinances themselves.
It has done, however, in two distinct statutes.
Section 251.005 limits the territorial effect of, among other
things, city ordinances. It does not impair the enforceability of
ordinances within the geographical areas in which the ordinances apply
under its terms. In our opinion, if the legislature had meant for
section 251.004 to have any effect upon the power of a municipality to
enforce its ordinances even in the areas in which they apply, it would
have given some affirmative indication in section 251.005 that such
ordinances may be given only limited effect in those areas. The fact
that, in section 251.005, the legislature limited the ter-'torial
effect of city ordinances but said nothing about limiting their
enforceability within the areas in which they apply is strong evidence
that section 251.004 should not be read as imposing any such
limitations.
For these reasons, we conclude that a legal proceeding that Is
initiated to enforce a law or ordinance that classifies an activity as
"nuisance" does not constitute a "nuisance action" within the
teaning of section 251.004. Section 251.004. therefore, dots not
impair the city of Kirby's right to enforce its livestock ordinance.
You next ask whether the following resolution of the Kirby City
Council violates the Open Records Act , article 6252-17a. V.T.C.S.:
Be it resolved, that to encourage an unhindered
flow of coaununication and the discussion and
dellberarion of city business matters that by
general or special statute cannot be made public
or which might adversely affect the public
security. financial interest of the city of Kirby,
Texas, or the reputation of any person, and to
insure the protection of the attorney-client
privilege recognized by law, the mayor, ~11 city
council members and the city attorney, or anyone
who may be present during an executive session.
shall be prohibited from making the contents of
any executive session known to the public....
To the extent that this resolution prohibits the named
individuals from orally "making the contents of any executive session
known to the public," its enforceability is not dependent upon the
Open Records Act. In our opinion, that act, which' applies to
information in the possession 0f.a governmental body, has no bearing
upon what members of that body may choose to say in public. In
enforcing this resolution, the city might encounter difficulties. such
as the first amendment to the federal Constitution, but the Open
Records Act would not be among them.
p. 2068
Honorable Oscar H. Mauzy - Page 6 (MW-563)
To the extent that the resolution applies to such 'things as
documents discussed in an executive session or a council member's
notes of that session, however, a different question is presented.
Until the city receives a formal request for particular information,
its right to enforce this resolution would not depend upon the Open
Records Act, because the act does not come into play until such
request is received. Once a request is received, however, the
resolution could have no effect upon the decision of the custodian of
information of the governmental body AS to whether access to the
requested material must be granted. If the custodian is asked to
release a document involved in the executive session, in other words,
he will have to determine whether the Open Records Act requires its
release. This resolution cannot shield from public v;tw any
information in the governmental body's possession that must be made
public under the terms of the Open Records Act.
You next ask whether the city council may direct the city
attorney "to report directly to the city council regarding all city
business." We have insufficient facts with which to answer this
question. In general, since the city attorney is employed by the city
of Kirby. we see no reason why the city council cannot direct him to
report to it regarding city business. On the other hand, the
resolution in question also contains A flat prohibition against
written or verbal communications between the city attorney and various
city officers. In enforcing this prohibition, the city could
encounter problems under the first amendment. particularly if it takes
punitive measures against the city attorney for violating it.
You next ask whether three city council members may prepare A
resolution without the knowledge of the mayor, city staff, or the
other two council members and then present And pass it at a council
meeting. Since you have not indicated the legal problem that you
think the above action raises , we will assume that your question is
whether the affirmative vote of three council members is sufficient to
pass a resolution. You do not present any facts suggesting any
violation of the Open Meetings Act. V.T.C.S. art. 6252-17.
Article 997. V.T.C.S., provides:
All ordinances and resolutions adopted by the
council shall, before they take effect, be placed
in the office of the city secretary; and the mayor
shall sign those he approves. Such as he shall
not sign, he shall return to the city council with
his objections thereto. Upon the return of any
ordinance or resolution by the mayor, the vote by
which the same was passed shall be reconsidered.
If, after such reconsideration. a majority of the
whole number of aldermen .agree to pass the same,
and enter their votes on the journal of their
p. 2069
Honorable Oscar H. Mauzy - Page 7 (MW-563)
proceedings, it shall be in force. If the mayor
shall neglect to approve or object to any such
proceedings for a longer period than three days
after the same shall be placed in the secretary's
office as aforesaid, the same shall go into
effect.
City of Centerville v. Adkisson. 291 S.W.2d 798 (Tex. Civ. App. -
Waco 1956. no writ), held that A mayor was not an "alderman" within
the meaning of article 1033, V.T.C.S;. which required the "consent of
two-thirds of the aldermen elected." Likewise, we believe a mayor is
not an "alderman" within the meaning of article 997. Since ti.;s is
true, even if the mayor refused to approve a particular resolution, "a
majority of the whole number of aldermen" could override his veto.
Three of the five "aldermen" constitutr a majority. Thus, under
article 997, three city council members may pass a resolution. Of
course, it is up to the council to determine whether the manner in
which a resolution is brought before it comports with local
requirements, rules of parliamentary procedure, etc. See generally 40
Tex. Jur. 2d Municipal Corporations 50262. 268.
You next ask whether the mayor has the authority to send a
"letter of reprimand" to a city council member. The first amendment
protects the individual's right to self expression. This particular
letter, moreover, does not threaten the council member with any
particular sanctions. Thus, we have no occasion to consider whether
the mayor would be authorized to do more than merely "reprimand" the
council member. i.e.. take some sort of concrete punitive action
against him. -
You finally ask whether the mayor has the authority to establish
city policy. Article 996, V.T.C.S., provides:
The mayor shall have power to administer oaths
of office. He shall have authority in case of 8
riot or any unlawful assemblage. or with A view to
preserve peace and good order in said city, to
order and enforce the closing of any theatre....
He shall perform such other duties and nossess and
exercise -such other power and authority as may be
rescribed and conferred by the city council.
&aphasiS added).
A mayor derives his powers and duties from statutes, the city
charter. valid ordinances, and resolutions of the city council. S&2
Nixon v. City of Houston, 560 S.W.Zd 447 (Tex. Civ. App. - Hous=
114th Dist.] 1977, writ ref'd n.r.e.1; City of Galveston v. Hutches,
76 S.W. 214 (Tex. Civ. App. - 1903). rev'd on other grounds sub nom.
Abbott v. City of Galveston, 79 S.W. 1064 (Tex. 1904). After listing
specific powers, article 996 provides that the mayor shall possess
p. 2070
.
Honorable Oscar H.‘Mauzy - Page 8 (MW-563) I.
“such other power... as my be prescribed and conferred by the city
council.” Thus, in any particular instance, the mayor’s right to
establish policy unilaterally will depend upon whether he has been
given such power by law or by the city council.
SUMMARY
1. The city of Kirby may enforce its livestock
ordinance without regard to section 251.001 -et
n of the Agriculture Code.
2. The Open Records Act, article 6252-17a.
V.T.C.S.. has no bearing on the enforceability of
a city resolution forbidding participants in an
executive session of the city council from
divulging the contents of said session to the
public until the city receives a formal request
for information at issue in said session.
3. The city council may direct the city
attorney to report directly to, the council
regarding all city business. Whether its
prohibition against discussions with named
individuals is enforceable under the first
amendment to the federal Constitution would depend
upon the facts of the case.
4. The vote of three council members Is
effective to pass a resolution.
5. There is nothing to prohibit a mayor from
sending a letter of “reprimand” to a city council
member.
6. If authorized by statute or by the city
council, the mayor may establish local policy
unilaterally.
MARK WRITE
Attorney General of Texas
JOHNW. FAINTER, JR.
First Assistant Attorney General
RICHARDE. GRAYIII
Executive Assistant Attorney General
p. 2071
Honorable Oscar H. Mauzy - Page 9 (MJ-563)
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia .Hinojosa
Jim Moellinger
Stan Reid
p. 2072