AUSTXN, ?kXAR 78711
Honorable Cries Cole Opinion No. M-190
Chairman, State Committee
for Study of Lend Uee and RI?: Whether Sec. 13(D) of the
Environmental Control, Clean Air Act of Texas
State Senate (Chapter 727, Actc of the
Auetln, Texae 60th Legielature, R.S. 1967)
'requlrec that a local govern-
ment obtain Ttxac lair Control
Board approval before It may
institute a civil cult for
penalties or for ~lnjunctlve
rellef under Section 12 of
said Act, and related ques-
tlone.
Dear Sir:
Your request for an opinion from thle office concern-
ing the power of local govtrnmente under the Clean Air Act of
Texas, 1967, (Cha ter 727, Acta of the 60th Legislature, R.S.,
Page 1941; Art. 4f:77-5, V.C.S.) and the Texas Water Quality Act
of 1967, (Chapter 313; Acts of tht 60th Legislature, R.S., Page
745; Atit. 7621d-1, V.C.S.), relate to almost identical provl-
slahs In the two laws contiernlng the power of local governments
to act. You pose thirteen qutatlons which by nature of their
Importance muet be repeated herein.
1.
"Does Section 13(D) of the Clean Air Act of Texae,
1967, require that a local government gain the
approval of the 'Texas Air Control Board before It
may lnstltutt a civil cult for penaltlee (or an
Injunctive proceeding) under Section 12 of the
Clean Air Act of Ttxae, 19677"
Hon. Crlss Cole
Opinion No, M-190 - Page 2
It is our opinion that a local govkmment may act ,ln-
dependently of the Texas Air Control Board in exerclslng~lta
powers under Section 13(D): of, the, ,,Clean#Air Act, ofY,:~T~x~&,~.i
,;, This,,,,,,,
Sectibn prov$des: as, follows;
“(D) In’ the s’ame;:k&i~er F& the,‘board, :lai.lbcal\, “’
government, tiporilformal. rfisolutlon of’ its govei+
lng body, may enforce through Its own attorney .:
~~
the provisions of Section 12 of this Act. How-
ever, a local,government may not bring an action.
against a state agency~or department, another
local government or any other political sub-
division of the state for the assessment of.the
penalty specified In Section 12. In any suit
Instituted by a local government under this sub-
section, the boards-is authorized to be and must
be a necessary party to the local government Is
suit.”
It Is obvious from the above statute that Section 12
cover‘8 not only penalty acts for civil penalties but Injunctive
proceedings as well. The requirement for joinder of the Texas
Air Control Board Is plain. and the Attorney General or Board
must be aerved wlth,pEocesk as a necessary -arty. Coffee v.
Wllllam Marsh Rice Universlt 403 S.W.2d 3 fI0 (Tex.‘Sup.66).
xn addition to the above act ns, it Is our opinion that any
other suits brought under Section 14 of,the Act desianed-to pur-
sue all common law remedies available to abate the pollution-or
other nuisances or for!damages therefor, would require the
joinder of the T&as Air Ccintro$ ,Eoard as a third party plaintiff
br defendant under Tex. Rules Clv. Proc., Rule 39.
2.
,“DcSectlons~. 15(a) (2) and 16(g) of the Texas Water
Quality Act of 1967,require that a local government
gain the approval of the Texas Water Quality Board
before it may Institute ,a clvll suits for penalties
under Sections 14 and 15 or an InJurictlve proceed-
ing under Section 16(e) of,the Texas Water Quality
Act of lg67?”
The provisions of+the’ sections. of the Tixas Water Quality
Act of 1967 are almost ld’triticalj~~n’substance~~o those discussed
above In Question 1 ,&nd ti$&tianie”answer ,would apply thereto.’
Under the provlsions.;of ‘S%tion, l'5j~,:.UhqTexas Water Quality’~ Board
must be JoXned ‘5s a ,,$tiird~.pa‘rty pl@ilitiff ‘or defendant In any
suit by ,a, BoaI. goytr?ent, ‘for injunc,t,&ve. relief, c,lvll penalties,
or oommoh~:nuPsafices.‘~ :,
~,;904; :. “,:
Hon. Crlss Cole
Opinion No. M-190 - Page 3
"Under the Texas :R&es 'ofi',,C.vlll:jProOedure's 'IS " $
there a~,dlfferellce:;in.:,legal.'efftct' b&tweeA'?he ',~,
DhFaab "The'Board'i&~autho&ztd~to be and must,
be a necessary party,to the local government's
suit" as used In Section 13(D) of the Clean Air
Act and the phrase "The Board created by ttiis
act Is authorized to be and must be a necessary
and Indispensable party to any suit bcought by
a local government under this section , as used
In Sections 15(a) i2) and 16(g) of the Texas
Water Quality ect?
Although there,ls a legal difference In "necessary"
parties and "Indispensable" parties, It Is our opinion, after
examining the Texas Water Quality Act and the Texas Cl&an Air
Act, that In each suit brought by a local government, such as
a city, county or water dlstrlct, the appropriate Board,
whether It be the Texas Air Control Board (for air pollution)
or the Texas Water Quality Board (for water pollution), Is
: Indispensable and must be joined as a third party plaintiff
or defendant, Tex. Rules Clv. Proc. Rule 39; Texas Electric
Service Company v,'Faudrte, 410 S.W.2d '477, (Tex.Clv.App.,
'1967, error ref.).
We will consider the next two questions together:
“(.a) "If the Texas Water Quality Eoard were olned
in a suit under Section 15(a) (2) or 1 (g)
of the Texas Water Quality Act, would the
BOardIs refusal to participate In the action
as a party plaintiff prevent the local govern-
ment that filed the suit from prosecuting the
action to Its conclusion?"
(b) "If the Texas Air Control Board were joined
In a suit under Section 13(D) of the Clean
Air Act of Texas, would the Eoard's refusal
to participate In the action .as a party
plaintiff prohibit the local government
that file&the suit from Rrosecutlng the
action to Its conclusion?
-905-
Hon. Crlss Cole
Opinion No. M-190 - Page 4
,.
‘hit is our: opinion that once the appropriati State ~’
Board or the AttoGey,,Gene,ral have been served ‘.wlth citation
in ,the manner, provided by, ‘law, SaSlure,.;,?:?~,(refus&l, OS, the
State Board ,tti, further Participate “lti.‘tt$;,actl~n iia “a third ”
party plaintiff or deferidint, Iwould liot pr’event the’ Court
from proceeding in the case, or the dppellate dourts from
exercising any appeal jurisdiction therein. CoSfe,e v.
William Rice University, aupra.
5.
The next Inquiry Is quoted as follows:
“Section 12 OS Chapter 42, Acts of the 57th
Legislature, First Called Session, 1961,
(Article 7621d,, Vernonla Texas Civil Statutes -
repealed by the,60th Leglalature) providea
“This Act shall not In any way affect the
right of any person to puraue,all legal and,
equitable remedies available to abate pollu-
tion and other nuisances or recover damages
therefrom or both.” Section 20 of the Texas
Water Quality Act of 1967 ,provldes, ‘This. Act
shall not In any way affect,the right OS .any
private corporation or Individual to pursue
all legal and equitable remedies to abate a .
condition of pollution or other nuisances or
recover damages therefrom, or both,’ Section
23 of the Texas Water Quality Aat of 1967, In
part, provldea ‘To the extent that a general,
local, or apeclal l&w may be oonstrued to give
local governments, aa defined In this act, the
authority to set and enforce water quality
criteria other than those adopted by the Texas
Water Quality Board that law Is repealed.’
What effect, if any, do the quoted provisions
of the Texas Water Quality Act cif 1967 have on
the authorlty of a city or county to prosecute
a nuisance suit - particularly under the pro-
visions of Article 695, Vernon’s Texas Penal
Code? Ia the effect different than the effect
of the quoted provision from Article 7621d?”
Sections 20 and 23, Artgcle 7621d-1, do not affedt the
authority of a city or county to abate pollution as a c,ovon
law public nuisance. The Texaa Water Quality Act of 1967 la
not the aole remedy to abate pc?llution as a public nulaance,
,nor does It cover the entire field of nuisance In pollution
-906-
Hon. Crlss Cole
Oplnlon No. M-190 - Page 5
cases, particularly where then basis of complaint may be some-
thing else, such as health hazards, which Is the purpose of
Article 695, Verndnjs Penal Code, to prohibit. Section 20,
Article .7621d-1, simply preserve 8 the right to bring private
nuleance cases apart from the operation of the Act.
6.
~Your next question we.dlspose of asks for statutory con-
struction:,.
"When construed together, what effect have Sections
14 and 15 of the Clean Air Act of Texas had upon the
nuisance-abatement and ordinance-making power of
local governments In the matter of air pollution?
Do Sections 14 and 15 have any effect on the use
of Article 695, Vernon's Texas Penal Code?"
:
It I& 'our opinion that Sections 14 and 15,of the Clean Air
Act of Texas a&merely a statutory cumulation of rights that have
not been superseded by the statutes. The real question In regard
to validity of local ordinances as to air pollution rests with the
determination under Section 15 as to whether such ordinances are in
fact consistent with the provisions of any statute or rules, regu-
lations or orders of the Texas Air Control Board.
7.
You next ask: :
"If a local government making an Inspection under
Section 16(a) of the Texas Water Quality Act dls-
covers either (1) that a person or another local
government discharging effluent Into the public
waters located In the areas over which the local
government has jurlsdlctlon has not obtained a per-
mit for such a disc,harge;. or (2) that a person or
another local government who possesses a permit to
discharge Into the public waters are making dls-
charges that are not In compliance with the re-
quirement@ of the permlt;does the local govern-
ment have ample authority under the Texas Water
Qu;;;;;,,Act to enjoin or seek penalties for the
In line with the previous dlecusslons of the powers of
the local governments, there Is no vested right to commit a nul-
s,ance or to violate a statute grounded upon nuisances, and the
-907-
I
. .
Hon. Crlss. Cole
Opinion No. M-190 - Page 6
only effect of a permit from the Texas Water Quality Board would
be to protect the Permittee-from "statutory :pollutlon". If, a nul-
sance In fact exists, the local government could take. advantage of,
Its powers of Injunction orcivil penalties. under.the',Act.~ In':thls
connection It Is well to rememberthat one 1ocaI'government may not
sue a governmental agency. The State of Texas can bring such's
suit and a local government could then Intervene.
a.
Your Inquiry' concernlng,lnjunctlon and penalties and
powers reads:
"If a local government makes'an Inspection under
Section 13(B) of the Clean Air Act of 1967, and
discovers that emissions from a source do not
meet the requirements set by the Texas Air Con-
trol Hoard or that a person Is not In compliance
with an order, rule, OCRregulati;on of the Texas
Air Control Hoard, does the local government
have ample authority under the Texas Air Control
Act to enjoin or seek penalties for the action?"
The rules and regulations of the Texas Air Control Hoard,
which are reasonable and made In conformity with the statutory
authority therein given, may be a source of violation which a
local government' could enforce by seeking Injunction or civil
penalt,les for violation of the rule, re ulatlon or ordeer of the
Air Control Hoard. Sections L3(B):and f D) Clean Alr Act, state
that this may be done.
9. .'
You Inquire further as follows:
"Under the Clean Air Act of Texas, 1967, does a
local government have the authority to enforce
the provisions of Section 12 of the Act against
a source that Is located outside the territorial
jurisdiction of the local government but Is not
causing a condition of air pollution Inside the
territorial jurisdiction of the local govern-
ment?"
Suit for statutory air pollution must be for "emission"
of~the alr pollutant, and If the emission occurs outside of the
territorial area of the local government and does not cause hurt or
injury within Its boundaries or jurisdiction, no suit can be brought
-908-
Hon. Crlss Cole
Opinion No. M-190 - Page 7
for statutory air pollution. This opinion does not pass upon any
causes of action which Section 14 preserves.
10.
You ask,
"Under the TexasWater Quality Act of 1967, does
a local government have the authority to enforce
the provisions of Sections 14 and 15 of the Act
against a person located outside the territorial
jurisdiction of the local government but whose
activities are causing a condition of pollution
inside the territorial jurisdiction of the local
government?"
Suit for statutory water pollutlon'under the Texas Water
Quality Act Is to be brought under Section 14 at the place where
the water pollutant Is thrown, drained, etc. Into the stream.~ If
such a point on a stream Is outslde the territorial jurisdiction
of the local government, and hurt or Injury is caused within the
territorial jurisdiction of the local government, suit can be
brought where the pollutant is being put Into the stream. There
may be additional jurisdiction by the local government to bring
a suit elsewhere under Section 15 of the Texas Water Quality Act.
Harrlngton v. State, 363 S.W.2d 32l,'(Tex.Clv.App., 1963, error
ref. n.r.e. ; Mitchell v. State, 371 S.W.2d 799, (Tex.Clv.App., 1963;
error diem. e
11.
We will'now consider your last two questions together:
ia) "Does Section 16(c) of the Texas Water Quality
Act require that a local government adopt
a separate resolution authorizing each enforce-
ment $&fan that it takes under the Act; or
may the local government adopt one general re-
solution (containing appropriate guidelines)
that authorizes l.ts appropriate officials to
take enforcement action under the Texas Water
Quality Act as the need arises?"
(b) I’-; Sectlon 13(D) of the Clean Alr Act of
s require that a local government adopt
a separate resolution authorlzlng each en-
forcement action that it takes under the Act;
or may the..?ccal government adopt one general
Hon. ,Crlss Cole
Opinion No. M-190 - Page 8
,,.
5.
resolution (containing approprlate.gulde-
,llnee) that authorizes .its appropriate .'
offlclals to take'enforcement action ,under'
the Texas Clean Air Act as the.need arlses?"
,' 'Under both the',~neaily Identical provisions ~of.'the two sta-
,tutei? relating to water and air pollution, the Legislature speaks
of a "suit" being brought "upon formal resolution of ,%ts.govern$ng
body", and the word !!sult" Is used In the singularwhich might mean
that a formalH;;E;;;tlon l%needed for each suit brought by a local'
overnment. Section 2.02(b) of Article 5429b72, V.C.S.
Z' 7 The Code Construct&Act),, provides that the singular Ineludes
the plural. We think the remedial and procedural statute does not
speclSlcally require a formal resolution for the brIngIn& of each
suit. Futhermore, If this statute IS subject to ,constructlonr
must be liberally construed, and we are not at liberty to read such
a restriction Into the statute. The discretion In ~such cases'is to
be left to the local governing body. It would thus appear that a
general authorization for suits under the Texas Water Quality Act
or Texas Ali? Control Act of.1967 Is sufficient.
SUMMARY
A local government may Institute 'suits 5
without the Texas Air Control Board approval
or Texas,Water Qua$lty Board approval under
the provisions of Article 4477-5; V.C.S., or
Article 7621d-1, V.C.S.; the Water or'Alr Eoard~
must be joined a8 a th$rd party plaintiff or
,defendant under Tex. Rules Clv. Proc. Rule 39.~
ry truly yours, 5
i!F?%i%
orney General of Texas
Prepared by Roger Tyler
Assistant Attorney General
APPROVED: ‘I
OPINION COMMITTEE
Hawthorne Phlllios. Chairman
Kerns Taylor, Co%i&man
John Grace
John Banks
Robert Flowers 'j ,,
Dyer Moore, Jr.
STAFF LEGALASSISTANT: *
A. J. Carubbl) Jr.
- 910 -