Untitled Texas Attorney General Opinion ( 1939 )

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 S.W. 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 S.W. 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