Untitled Texas Attorney General Opinion

OFFICE OF THE AIK)RNEY GEi’4ERAL OF TEXAS AUSTIN Came, lbh and Oyetier OoPrnieaion Auetlns Texas Gontlemenr Attention: Hon. Wm. J. Tuoker Youir letter, in the tmya and 0 Gulf Soarrt of Texas obtain lnjunotlve ,person or persone (other ocmnlttlng the eote set or 1, on the grounds that titutes a pub'lio nulefmoe? Can ln- Ve shall quote the pertinent $roviaione O? the varfous 8tdiUtOB of Texas &latlngto the aupj,eot of your inqa;LrJr. Artlole 7461, Revl8rd Oivil Statutes of ,Telaa, Game, Fish and Oyster hmni8sion, Page 2 reads, in part, as folLowsr "The waters of the ordinary flow and underflow and tides of every flowing river or natural stream, 0r all lakes, bays or arms or the Gulf of Mexico, and the storm, rl00d or rain watem or every river or natural stream, oanyon, ratine, de reeelon, or Waterehed, within the State of 8 exas, are hereby deolare&to be the property of the state.. .." ~. Article 4026, Revised Statute8 of Texas, reads~ 68 r0ihta: "All fish and other aquatio animal liie.mntslned In the rresh water rivers, oreeks and streams and in lakes or slougha aubjeot to overflow from rivers or other. stream within the borders of this State are hereby deolared to be the property of the people or this State. All or the pub- 110 rIvera, bapous,.lagoons, oreeks, lakes, bays and lnletrr.ln this State, and all that part or.the Gull of b!exloowithln.the~ jurls- diotion of thi8 State, together with their beds and bottoms, and all of the produots thereor, ehall continue anfl.r~ain the FZO- perty of the State of Texas., exoept in IJO rar as the State shall permit the use at aald waters and bottoms, or pemlt the tak- ing 0r the produots or euah bottom and waters, and in so far a8 thie une ehall re- late to or afreot the taking and oomerva- tfon or fish, oyntera, shrimp, oraba, olems, turtle, terrapin, musaela, lbbatera, and all other kinds ald forms of marine liie, or re- late to sand, gravel, marl mud shell and all other kinds or shell, the &am, Fi8h and Oyater Comlealoner shall have jurladlotlon over and oontrol o$, IIIaccordauoe with anb by the authority vested in him by the laws 0r this State.* Touching the property rights of the State of Texas in the marine 1ife:odt the tfdal waters of this State, we'quote rrom an opinion by the Ccmmlasion or Game; Fish and Oyster Commisslan, Page 3 Appeals of Texas, In the ease of Stephenson, et al vs. Wood, et al, 34 SW 2nd 246: "The fish ln,the streams and coastal rater8 of Texas are the property of the State, and no person has any vested proper- ty right therein, Furthermore, the preeer- vatlon or the wild game llre ot the State, iholuding the fish In It8 streams and coastal waters, ia a matter in whloh the people gen- erally over the State are intereeted....= Artiole 4444, Revised Statutea of Texas, reada, in part, aa r0110wa: RNo person, rim or oorporation, private or municipal, shall pollute any water course or other publio body of water, by throwing; oasting or depoeitlng or oauelng to be thrown, oaat or deposited anyorude petroleum, oil or other like Bubetanoe therein;... Inaorar as ooneerna the proteotion of fish and oyBter8, the Game, Piah and Oyster Co#mleaioner~or his deputies, may have jurisdlotlon in the enforoe- nent hereof..... Upon the oonviotion or any person ror violating this law, the oourt nor JU~R thereof In whloh euoh oonviotion Is had, shall isrrue a writ or lnjuuotlon enjoining and reatrainlw the parsonor.oorporation re- aponalble ror auoh pollution....v See aleo Artiolea 5351 and'7577, Revised Civil Statute8 or Texas: Turning now to the Penal Code of Texas, we find the following relevant atatutee: Artiole 698, which reada, in part, as rollowe: "It shall be.unlawful ior any person, iinn or oor oration, private or munioi 'al, to pQllute any wa e er oourse or other publio ti ody of water, by throwing, oaatlng or depositing, or oausing~ to be thvown. cast or deDoait.ed an9 orude Detro- lows, of1 or-other like substance therein.;.; Xnaofar as oonoerms the proteotion of fish and oystera, the Game, blah and Oyster Commissioner, Game, Fish and Oyster Cornnisslon, Tage 4, or his deputies, may have jurisdiction in the enforaement of this chapter. A violation of any of the provisions of this ahapter shall be punished by a fine Of not less than ~100.00 and not more than $l,OOO.OO.... Eaoh day such pollution Is knowingly caused or permitted shall constitute a separate orrense...." Artlola 898a, enaoted by the 42nd Legislature provides as fo~hwB: "Sea. 1. It shall be unlawful to throw, east, Blaoharge or deposit orude petroleum, oil, aoids, sulphur, salt water, 011 refinery waste8 or oil,wellwaates in or on any stream, water course or natural body or water 0r this State or in suah proximity thereto that such crude petroleum, oil, aoids, sulphur, salt water, oil rerinery wastes or, oil well wastes will reaoh suoh stream, water course or natural body of water; providing, however, that salt water'or sulphur water, when auah eulphur water is .BO treated that it nil1 not be~harm- rul to aquatio lire or rxrlne organiams,.may be deposited in the tidal waters of this State; and provid!~nS further that when it is charged that there is a violation of this A&t by throw- ing, casting, discharging or depositing crude petroleum, 011, reiinery wastea or oil yell wastea or acoumulations ol'suoh deposits, oover- ed an area of suoh water in exoeas of' ten thou- sand (10,000) square teet or was on the suriaae or a river, stream, bayou or ohannel of this State for a dlatanoe in exoess of three hundred (300) reet. n .. .. Tea. 3. Any person violating any prod- Sian or this Act or any direotor or orrlcer of a corporation or member of a firm or partner- ship or receiver whose oorporation, ilrm, partner- shia or raoelvership is responsible for the opera- ti&& oauslng a violation of any provision or this Aat shall be deemed guilty of a misdemeanor and upon oonvlctlon shall be fined In a sum not less than Two Hundred 9ollars,($200.00) nor more than One Thousand Dollars ($l,OOO.OO), and each day that such violation Is committed shall 346 Game, Fish and Oyster Comm%mion, Page 5 constitute a separate offense. The Gam, ylsh and Oyster %mmlsaion and lta repre- sentatives is oharged with the duty of en- forolng the provisions or this Aot and all rinea and roes of the arresting orrloer, imposed ror vlolatlonB or this Aat, shall be remitted to the,Geme, Fish and Oyster Cotaviesion snd depoaited In the State Trea- aury to the oredit of the Speoial Game Fund." The answer to your fir& queStiOn is, therefore, found in the i'oregolng provisions or the Penal Code. You then ask whether or not the State of Texas may obtain Injunctive relief against a person or persons polluting the,bays and bayous on the tidal waters of the Gulf Coaat,~ the result of whhioh is to destroy the marine life in euoh watera. Suoh a prooedure, in an analogous' situation, was oonsldered by the Galveston Court of Civil Appeal8 In the ease of Texas Gulf Sulphur Company vs. State, 16 SW 2nd 408,409. We quote from the oplnlion 0r the oourt: "Graves, X. This appeal prooeeda fran a temporary injunction, issued on the appli- cation of the state 'bs the dlstrlot court or Wharton oouuty, ~preaumably pursuant to arti- ales 4444, 7467, 7877, 5351,,7672, 4026, R. C. S; of 1925, and~artioles 897, 698, Penal Code, efreotive until Its turther order, and enjoining appellant, its agent and repreaenta- tivea, "in all things aa prayed for in plain- tiff's petition, and especially from permitt- ing the waters emanating and, eaaaping from the b?oOarson well No: 3 and the Sanker No. 12, from rlo!4ng to or in the Sen Sarnard River. .. ..,. .. "Neither contention, we think, in the state cf the reoord, oan be sustained; a8 ln- dlcated in the beginning, th.is order enjoined appellant rrom thevlolatlon of apeoifio stat- utory provisions refleoted in,the oited arti- ales, partloularly In R. S. art. 4444, whioh makes it unlawful for 'any peraon, firm or oorporetion .. .. to pollute any water course or other publio body of water, by throwing, oasting or aeposfting, or oausing to be thrown, 34 Game, Fish and Oyster Co!maiasion, Fage 6 oaat, or depoalted any orude petroleum, oil or other like eubetanoe therein,' eta., and provides ror injunctive relief; the preoiae IssUe, therefore, waa whether or not the appellant for ft8 part was both oharged With and BhOwII to have done,thIs particular malum prohlbitum." It is interesting to note that In the above oaae, the State alleged, among other things, thet the pollution or the streame was dmggerous and detrImenta to marine lire end+@. aontlnued, would kill all the fish life In .the stream; .that the pollution of the stream made the waterUnfit fcr QrInkIng by livestook and ren- dered the stream Useleas to riperian owners; that the aote complained of were a continuing trespaBs; that the derendants were threatening to,oontInue their aotlona, that there was no adequate remedy at law agailable to the State, and ~that the destruotion ot the fish lff'e would be a destruction of property of the State and would therefore oause Irreparable Injury to the publio. Interesting, also, 18 the ease of Continental Oil Company vs. City of Oroesbeck, 95 9% 2nd 914, in whloh the trial oourt had enjoined the dtiend.ant oaapany rrom polluting the water supply of the oIty or Groesbedk, not- wIthstandIng the Ignorance of the offioials of the defen- dant oompany or a leaky pipe which was 'pennittlng salt water to flow into the water 8Upply of the oity. .In dis- oussing the question of the abuse of discretion on the part of the trial court, the appellate court stated that, irre- speotive of this question?; the injuuotlve order would not be Invalid inasmuch as the deiondant cunpany was violating the law, and therefore the Injunctive order did not Inter- fere with its lawful rights. The language of the ao.Urt, In this partloular, is as follows: "Sinoe the appellant has no right to pollute the waters of Navasota River and its tributaries, the writ granted in this case In no wise interf'eres.with appellant's lawful right, and the appeal i'rom the granting of the writ prasents no merit." As a general.proposItlon, therefom, you are re- spectrully advised that orImina1 oharges may be instituted 348 G&e, Fieh an8 Oyster Cmuuisaion, Page 7 against a person or persons polluting the bays an8 bapRps on the tidal waters of the gulf ooast, the rs- cult of whloh is to destroy the marine life in suoh waters and the oiroumstanoes of whioh othemlse ara within the purvisw or the cgmted provisions of the Penal Coda. or oourse, a spaoitio opinion on a parti- oular situation oan be resolved only with a knowledge of all the faots relating thereto. Furthermore, It Is our opinion that injumtive proaeedlngs are available to the State of Texas in aush situation, depending, likewise, upon the partloular raot situation. Our answer to your questions (1.)and (2) ren- ders, we believe, umeoessary an answer to your question (3). We trust this ansusrs your inquiry satlstaatorily and we remain Very truly yours ZCS:AW