# The Attorney General of Texas

December 22, 1982 MARK WHITE Attorney General

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A,, Equal Opportunity/ Affirmative Action Employer Robert Bernstein,M.D., F.A.C.P. Commissionerof Health TexasDepartmentof Health 1100West 49th Street Austin, Texas 78756 opinionNo. MW-544

Re: Department of Health authority to bring nuisance suit against agricultural operator
Dear Dr. Bernstein:

In 1981 the Texas legislatureenacted sections 251.001et seq. of the Agriculture Code. Acts 1981, 67th Leg., ch. 693, at 2595, incorporating Acts 1981, 67th Leg., ch. 124, at 313 (codified as article 165b-1,V.T.C.S.). Section 251.004readsas follows:

(a) No nuisance actionmay be brought against an agricultural operation that has lawfully been in operation for one year or more prior to the date on which the action is brought, if the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation. This subsection does not restrict or impede the authority of this state to protect the public health, safety, and welfare or the authority of a municipality to enforce state law. (b) A person who brings a nuisance action for damages or injunctive relief against an agricultural operation that has existed for one year or more prior to the date that the action is instituted or who violates the provisions of Subsection (a) of this section is liable to the agricultural operator for all costs and expenses incurred in defense of the action, includingbut not limited to attorney's fees, court costs, travel, and other related incidental G2Xpe*SCS incurred in the defense. (c) This sectiondoesnot affect or defeat the right of any person to recover for injuries or

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damages sustained because of an agricultural operation or portion of an agricultural operation that is conducted in violation of a federal, state, or local statute or governmental requirement that applies to the agricultural operationor portion of an agriculturaloperation.

See Agric. Code 9251.002 (definitions).

You are concerned about the relationshipbetween section 251.004 and article 4477-1, V.T.C.S., which authorizes the Department of Health and localprosecutorsto take legalaction topreventactual or potentialpublicnuisances. You ask:

May an agricultural operator against whom a nuisance action is brought pursuant to the provisions of article 4477-l recover from the Texas Department of Health or its duly authorized representativesthe costsand expenses incurred in defense of the action in the manner set forth in the Right-to-FarmAct, Agriculture Code, sections 251.001-251.005?
Article 4477-l prescribes "minimum standards of sanitation and health protection measures." Among other things, its 25 sections declare certain activities to be "nuisances dangerous to the public health," section 2. and impose sanitation requirements upon public establishments,-, sections 6, 8, 12, 15 and 17. Section 3 states that any person who possesses any place "in or on which there is a nuisance" must, when the nuisance becomes known to him, "proceed at once and continue to abate the said nuisance." It directs local health officers to issue to the person responsible for the nuisancea written notice ordering its abatement, and to send a copy of the notice to the local city, county,or districtattorney. If compliance with this order isnot forthcoming, "the localprosecutingattorney... shall immediately institute proceedings for the abatement thereof." Section 24provides thatanyperson, firm,or corporationwho violates the statute shall be fined between $10 and $200, with each day's violation constitutinga separate offense. Section 25 authorizes the Department of health to apply to a district court to enforce the statute.
For the following reasons, we conclude that a legal proceeding initiated to enforce article 4477-l does not constitute a "nuisance action" within the meaning of section 251.004. We therefore answer your question in thenegative.
Professor Presser has observed that "[tlhere is perhaps no more impenetrable jungle in the entire law than that which surrounds the

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word 'nuisance.'" Presser, Nonetheless, certain general stated.
Nuisances are classified Law of Torts 571 (4th Ed. 1971). principles regarding nuisances can be

as "private" or "public." A "private" nuisance is a civil wrong, based on a disturbance of one's right to use or enjoy land. The remedy for it lieswith the individualwhose rights have been disturbed. He may seek, inter alia, injunctive relief, see O'Daniel v. Libal, 196 S.W.2d 211 (Tex.Civ. App. - Waco 1946. no writ), or damages, see Vestal v. Gulf Oil Corporation, 235 S.W.2d 440 (Tex. 1951). A"public" nuisance, on the other hand, involves some substantial interference with the rights of the communityat large,a, with thepublichealth or comfort. Usually, public nuisances are declared to be such by some law. See generally Storey v. Central Hide and Rendering Company, 226 S.W.2d 615 (Tex. 1950);Stoughtonv. City of FortWorth, 277 S.W.2d 150 (Tex. 'Xv.App.

- Fort Worth 1955, no writ); Prosser, Law of Torts 572 et seq. (4th Ed. 1971).

We conclude that the legislature's intent in enacting section 251.004was simply to limit the circumstancesunderwhich suitsmay be brought against "agriculturaloperations"thatarenot being conducted in violation of any law. In other words, where negal proceeding seeks relief against an "agricultural operation" that is alleged to constitute a "nuisance,"but the operation is not being conducted in violation of any law, the proceeding would constitute a "nuisance action"within themeaning of section 251.004. Actions for damagesor injunctive relief initiatedby private individualswould fit in this category. Butwhere a proceeding seeks to enforcea law that declares an activity to be a "nuisance," it would not constitute a "nuisance action"under section 251.004.
The language of section 251.004 supports this conclusion. SW Statev. Terrell, 588 'S.W.2d 784 (TM. 1979) (legislativeintent toX ascertained from statutory language). In particular,we believe that twoprovisions in this sectionmake it clear that the legislaturedid not intend this section tohave any effectupon proceedingsbrought to enforce a law. The first is the sentence in subsection (a) which states that the subsection "doesnot restrict or impede the authority of this state toprotect thepublichealth, safety,andwelfare or the authority of a municipality to enforce state law." The second is the statement in subsection (c) that "[tlhis section does not affect... the right of any person to recover for injuries or damages sustained because of an agricultural operation... conducted in violation of a federal,state,or local statute...."
The legislativehistory of the Agriculture Code provisions also buttresses our conclusion. This history demonstrates that the legislaturewas concernedwith nuisanceactionsbrought, sometimesfor

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purposes of harassment,by individualswho move close to established agricultural operations and then seek to curtail those operations because of the annoyance factor. But there is not the slightest evidence that it ever intended to prevent the enforcement of state laws aimed at publicnuisances.

We therefore conclude that a defendant cannot recover costs and expenses incurred while defending against a legal action brought by the departmentor a localprosecutorunder article 4477-l.
SUMMARY
Section 251.004 of the Agriculture Code does not authorize an individual to recover for costs and expenses incurred while defending an action brought by the Department of Health or a local prosecuting attorney under article 4477-1, V.T.C.S.

MARK WHITE AttorneyGeneral of Texas
JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINIONCOMMITTEE
SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa JimMoellinger GeorgeWarner

P. 1975