Untitled Texas Attorney General Opinion

THE L~TI-CBRNEY GENERAL OF-XAS AUSTIN, TEXAR 78711 May 20, 1971 Hon. Jane8 L. Slider Opinion No. M-866 Chairman State Affairs, Committee Re: Constitutionality of House of Representatives H.B. 56, 62nd Leg., State Capitol R.S. (Environmental Austin, Texae Protection Act of 1971). Dear Repreaentative Slider: You request our opinion on the constitutionality of House Bill 56, 62nd Legislature, Regular Session 1971, the Environmental Protection Act of 1971. The companion Bill to it I@ Senate Bill 145. In brief, by this bill, the Legislature in Section 2 finds and declares that each person le entitled by right to protect and preserve the air, land, and all natural reeourcee of the etate; that it ie in the public interest to provide each person with “an adequate remedy” to so protect It “from pollution, Impairment, or deetruction.” Section 3 directs that the State, and any etate agency or any political subdivision authorized to exercise any jurisdiction over or to have any effect upon such resources, shall do ao in public truet so as to protect and maintain a quality environment for the citizens. ,By Section >, not only are the Attorney General, and the state agencies and political subdivisions authorized to maintain an action in the district courts of the state “for declaratory and equitable relief” but also any pereon or other legal entity may do eo against the state, the state agencies, and political subdivisions, or any person or other legal entity, for the protection of such reeources. Under the consistent express holdings of our Supreme Court, a statute will not be held unconstitutional unless it Is susceptible of no other construction than that It unequivocally and by Its clear language plainly excludes the right and power of the constitutional officers named to represent the state in court. Camp v. Gulf Production -4204- Rep. James L. Slider, page 2, (M-866) 122 Tex. 383 61 S.W.2d 773 (1933); Ma;;evexT;rell, %$%% 97 200 S W ‘375 (1918); Staplee v. St 1 p, 112 T;x. 61, ‘245 S.W. 639 (1922) In this connection, e court will resolve any doubt In faior of constitutionality and presume a constitutional Intent In the leglalative act, adapting that construction which will uphold the,statute. Watts v. Mann, 187 S.W.2d 917 (Tex.Clv.App. 1945, error ref. ; State v. Shoppers World, Inc., 380 S.w.2d 107 (Tex.Sup. 1964 : 53 Tex.Jur.2d 169 Statutes, Sec. 126. In Watte v. Mann, supra, It was obs&ved that our Constitution is not regarded eo much as a grant of power but aa a llmltatlon of power, and all power not limited by It Inheres In the people. Thue, a legislative act will be valid when the Constitution contains no prohibition against it. Section 7 of the Bill provides that it I@ Intended to be ‘supplementary” to exlatlng statutes and administrative and regulatory procedure~e. Sections 10 of the Bill contains the usual eeverabillty clause. The Constitution declares in Article XVI, Section 59, that the preservation, conservation, and development of the natural resources of the state are rights an! duties of the “public, ” and provides In this respect that . . . the Legislature shall pass all euch laws as may be appropriate thereto. ” With this in mind, may the Legislature validly provide for a new and additional etatutory cause of action by which the public, or any member thereof, may exercise their legal responsibilities to preserve the natural re- sources by abating illegal pollution? We must presume that the proposed statute, if passed, intended not to take away any conatltutional power of the County or District Attorney or Attorney General to represent the “State” In court. No language in the Bill requires an interpretation which would take away the constitutional powers of these officers. .It must be recognized that the authority to represent the State at? the sovereign In actlone in the courts on be- half of the State in Its sovereign capacity to enforce Its rights is vested by the constitution exclusively In the atate’s Attorney General, District, and County Attorney and the legislature Is without power to divest that authority or to delegate it to others. Agey v. American Liberty Pi= Line Co., 141 Tex. 379, 172 S.k.2d 972 (1943); and eee -4205- Rep. James L. Slider, page 3, (M-866) Attorney General Cpinlon No. ~-856 (1971), wherein only the state as the sovereign may act in bringing a quo warrant0 action, represented by its constitutional officers. The ctate 16 always a necessary party in such proceedings. Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928); Staples v. State ex Thus, a private person could not Institute an of the State where the property right or duty Involved belon a exclusively to the state. Herndon v. Hayton, 28 S.W.2d 885 fTex.Civ.App. 1930, error ref.). On the other hand, representation of the “State” as the eoverelgn Is not neceaaarily to be equated in every case with representation of the right8 of the public at large. Our Texas courts have settled the law to the effect that the rights of Individual citizens to enforce rights of the public at large by actions on behalf of the public to enforce public rights by com- pelling compliance with the lawe,are not suite by the State ae the eovereign entity which require either that the State be a party or that these court actions be proeecuted by any of the State’s attorneys. These actions take varloua forms: c mandamus, Injunction, prosecution, etc,. They may be for legal equitable or declaratory relief. They may be prosecuted for the enforcement of a public duty without ahowing any Interest peculiar to the Individual plaintiffs as would be neceesary to enforce private rights. In McLaughlin v. Smith, 140 S.W. 248 (Tex.Clv.App. 1911, error rer. 1, a mandamus action, the court said: ,f when the question is one of public right, ‘and’the object of the mandamus ie to pro- cure the enforcement of a public duty, the people ought to be regarded a8 the real party in interest, and that the relator, at whoae instigation the QrOCeeding@ are inetltuted, need not show that he hae any interest, special and peculler to himself, in the result, and that It is sufficient to show that he Is a citizen and as such interelted In the execution of the laws; . . .‘I (at Q. 251.). In support of mandamus actions by members of the public at large see also Willey v. Fennell, 269 S.W.2d 407 (Tex.Civ. AQP. 1954, no wrltjand Dubose v. Woods, 162 S.W. 3, 5 (Tex. Clv.App. 1913, no writ). In the case of Andereon v. Houts, 240 S.W. 647 (Tex. Clv.App. 1922, no writ) certain citizens of a road district eued the officers of the district and the county judge and county coxunlseionera and others, for Injunction to restrain -4206- Rep. JameaL. Slider, page 4, (M-866) the alleged illegal expenditure of the QrOCeed8 of the sale of certain bonds of the district. The court sustained the right of plaintiffs to maintain the action. On thi6 isroe it said: II0 . . It hae been to0 many times decided that a citizen and taxpayer may Institute and maintain an action to restrain an officer, atate or municipal, from performing Illegal, unauthorized, and unconatltutlonal acta, to require further dle- cuaelon. . . . I,. . . 11. . . Thla right does not depend upon . . . the situation or locality of the taxpayer, This right inures to the benefit of the whole peofllc at the suit of any taxpaying citizen. . . . (at Q. 649.). In any event, the progosad Bill can be upheld a8 ,~ constitutional on still another baels; In 7 Americen Jurisprudence 2d 22, Attorney General, Section 17, we find the following etatement: it has been held by most of the courts’&at where the queetlon is one of public right, and the object of the mandamue is to pre- serve the enforcement of a public duty, a private person may, In behalf of the public, and without showing any indivfdual or special Interest to be Becured, become a relator, and, through the proper etate officer, Institute the proceeding.” In addition, in certain cacee, where there le a clear mandatory duty to enforce the vio.lation of the law and dlecretlon ik not involved, it 18 held that where the Attorney General refuses to bri.&‘or consent to the brtnglng of a suit to protect the right% of the public, a private Individual may Institute a proceeding on his relation, in the name of the state.” 7 A.Jur02d 17, Attorney General9 Sec. 13. The right of the individual citizen to me to abate -4207 - . . Rep. James L. Slider, page 5, (M-866 ) pollution ha@ already been conferred by Congrese in the Clean Air Amendments of 1970, Public Law 91-604, Section 304, 42 U.S.C.A., Sectlone 1857, et .aeq. The Individual la there expreasly granted standing to sue,any polluter, Including the United States and any other governmental agency without any requirement of showing special or peculiar Injury or damage to himself; and in case of suit against any administrator, he may bring euit after giving sixty days notice of the violation, and If uncorrected, he may base his suit upon failure to perform any act or duty required by the Clean Air Act. Our Supreme Court has recognized that the legislature has the power to grant standing to sue to bring an action against a public body or a right of review on behalf of the public without proof of particular or pecuniary damage to the person suing. This requirement of the common law 1s not written into the Constitution but may be altered or abolished by the Legislature so as to give standing to sue a person. See Article I, V.C.S.; Scott v. Board of 405 S.W.2d 55, 56 (Tex.Sup. lybb), upholding a s a u e authorizing w an individual taxpayer standing to sue for inSunction to challenge governmental action without showin- any particular damage; Spence v. Fenchler, 107 Tex. 443, 108 S.W. 597 (19151, upholding a etatute authorizing any citizen the standing to sue to enjoin the operation of a bawdyhouse. In accord, Downs v. Schmld, 955 S.W.2d 1041 (Tex.Civ.App. 1936, rev. on other grounds.) and see 7 Am. jur.2d 8, Attorney-Ceneral, Section 7, and’authoritles cited, holding that common law duties and powers may be altered by the Legislature. Although the above acts involved a public duty which the County or District Attorney wae constltutianaily authorized to discharge for the state in court, the Individual citizen was not DreChded from suing and representing himself a@ part of the public. See also National Audubon Society, Inc. v. Johnson, 317 F.Supp. 1330, 1335 (S.D,Tex. 1970), stating that while the Society had no standing to sue, “conservationists ahould seek a leglelative enactment which would authorize any citizen of the etate to bring suit agalnet any polluter, private or public, to protect water resources.v The Court asoc 1 e 4t, Texas Law Review 1172, llm wherein It Is stated: “Since the citizens are beneflclaries, it Is only logical that they should be able to force the state to protect their rights. Thus when the -4208- . Rep. James L. Slider, page 6 (M-866) etate fails to protect navigable water8 from pol- lution, citizens should be able through judicial action to compel the appropriate state authority to remedy the problems. When the state itself causes pollution, the state should be eubject to suit D” Without statutory authorization conferring a right of a private citizen to sue, when a public right is injured, only legally empowered authorfties may do 80. San Antonio Conservation Society v. City of San Antonio, 256 S.W.2d 59 263 (Tex,Civ,Ap~ error re . ; ational Audubon Society, Ine. v. Johnson, sipra. When the?eglslature creates a new or addltfonal cause of action, it may con- stitutionally authorize the Attorney Generaland others to prosecute such a cause. Smith v. State, 328 S.W.2d 294 (Tex Sup. 1959). In many pollution abatement cases under the Bill, the state may have such a substantial interest that it will be a necessary party to the maintenance of the action, and the Attorney General or County or District Attorney, shall represent the state, such as when the action of state officials ie sought to be controlled, or state actions are attached, or state land is d.nvolved, National Audubon Society, Inc. v. Johnson, supra, 1_1 Raud v. Terrell, supra. While the Bill 3.8 m-on the question of procedures and joinder of parties, the existing procedural statutes and Rules of Civil Qro- cedure will no doubt control these questione and the courts will have to decide ,in each case these matters on the issuea joined and the facts presented. la any event, the citizen mey not sue on behalf of, or as representative of, the state, for only the County or District Attorney or Attorney General may represent the state and control its intereats In a law suit 1n the dfstrict court. Allen v. Fisher, 118 Tex. 38, 95 S.W,2d ‘731 (rg28). In this connection, in suits authorized under the Bill, unless the State ie made a party to the proceeding, it will not be bound by any udgment rendered in the suit. See Lee v. CalverA, 356 i .W.2d 840 (Tex.Clv.App. 1962, error ref., n,r,e.JO There is also another conatftutional problem which arises by reaso.? of the provlalons of Section 5(a) of the Bill, which fails to refer fn clear language the b88lc -4209 _ . . Rep. James L. Slider, page 7 (M-866) ingredients or element@ of the causes of action conferred, nor doea the bill speciflcally tie in with existing air and water pollution etatutea 80 a6 to incorporate them by reference, as hereinbelow enumerated. By the atatement In thia section aa to the nature of particular conduct, it could be argued that for a defendant to ahow his conduct to be valid he muat show that it I@ reasonably required for the promotion of the public health, safety and welfare. If read literally, the net effect of thla section may well place a cruahlng burden of proof upon a private defendant, poaalbly to the extent of a violation of the due process clause of th@ Fourteenth Amendment, United States Constitution, and of Article I, Section 19, Texas Conetltution. .The absolute terms uaed to describe the basla for the cauee of action, If literally applied, may be such aa to render the Bill unconatltutionally vague. However, to uphold lta validity, a court may well Interpret the causes of action described to be those aa arising from a violation of theme standards preacrlbed by law in other atatutea when read in par1 materia to this Act, such aa the Texae Water Quality Act, Article 7621-d-1, Vernon’s Civil Statutes; Texas Clean Air Act, Article 4477-5, Vernon’s Civil Statutea; Solid Waate Mapoeal Act, Article 4477-7, Vernon’s Civil Statutes; Article 698c, Texae Penal Code, on water pollution; Article 698d, Texas Penal Code, on air pollution, etc. We call this to your attention in connection uith our conslderqtlon of poeslb3e conetltutional defects,. Furthermore, we are concerned with the constitutional validity of the caption of the Act, which reads: “An Act relating to suita for declaratory and equitable relief to protect air, water, and natural reaourcea end the public truet therein from pollution, impairment, and dertruction; and declaring an emergency.” The above meagre proviaiona raise a serious queation of constitutionality ae to the caption’6 legal sufficiency. Article III, Section 35, Conetitution OS Texas, requires that an act contain no subject not expre6aed within the title. The purpose of this conatituttonal requirement is to require full and fair notice be given of the new oubatantive featurec of the act and to prevent surprise or fraud by meana of the provisions of the bills OS which the titles give no intimation and which might be overlooked and unintentionally adopted.. See -4210- . . Rep. James L. Slider, page 0 (M-866) Kelly v. WillZame 346 S.W.2d 434 (Tex.Clv.App. 1961, error ref. n.r.e. I. Insofar ae it fails to give notice that a new and Independent cause of action unknown at common law ia provided, conferring standing to sue upon private persons as well a@ the state, ite agencies and political subdivisions, and all others, to enforce the public rights In the preservation of the natural resource8 of the etate, the caption could be held to be constitutionally defective. While there are no case8 directly In point as applied to the eubject qmtter, we believe it nevertheless pertinent to call your attentionto this possible constitutional defeat, at this time. SUMMARY House ~111 56 ia not unconstitutional inaorar e.8 It euthorizee private Individuals to maintain legal actlone on behalf ol the public to enfowe public rights under tht state’pollutfon lawn. Such Bill 10 not unoonstitutional in permlttlng private individuals to 6ue the state and It8 agencies and political subdivision0 and to aid public officials where the state or Its agencies and political subdlvlelona are joined a6 a neces- smy party to represent the stateAn such .. action. Conatltutional probless arise from the vagueness of’ the causes of action lntendttd and not definitely tied to a standard either expreseed in the Bill or by reference to other rrt8tutcm. The caption of the Ml1 may also be held to be constitutionally defecttve Sor Sellure.to give fair notice of the new and independent mtatutory eaumea of action created and unknown at common 18u. /“IT tfuly, / -4211- . . . Hon. James L. Slider, page 9 (M-866) Prepared by Kerns Taylor Assletant At'tpmey General APPROVED: OPINION COiYMITTEE W. E. Allen, .Acting Chairman Mary Ellen Keith Lewis Jones Malcolm Quick Malcom Smith Ml?ADEF, GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE Firet Assistant -4212-