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
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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
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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
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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
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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
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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
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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
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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,
/
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. . .
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
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Untitled Texas Attorney General Opinion
Combined Opinion