The Attorney General of Texas 

December 22, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. am 12546 

Austin. TX. 76711. 2548 

51214752501 

Telex 910/674.1367 

Telecopier 5121475-0266 

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San Antonio. TX. 76205.2797 

5121225-4191 

A,, Equal Opportunity/ 

Affirmative Action Employer 

Robert Bernstein, M.D., F.A.C.P. 

Commissioner of Health 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas 78756 

opinion No. MW-544 

Re: Department of Health 

authority to bring nuisance 

suit against agricultural 

operator 

Dear Dr. Bernstein: 

In 1981 the Texas legislature enacted sections 251.001 et 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 251.004 reads as follows: 

(a) No nuisance action may 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, including but 

not limited to attorney's fees, court costs, 

travel, and other related incidental G2Xpe*SCS 

incurred in the defense. 

(c) This section does not affect or defeat the 

right of any person to recover for injuries or 

P. 1972 
Dr. Robert Bernstein - Page 2 (MW-544) 

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 

operation or portion of an agricultural operation. 

See Agric. Code 9251.002 (definitions). 

You are concerned about the relationship between section 251.004 

and article 4477-1, V.T.C.S., which authorizes the Department of 

Health and local prosecutors to take legal action to prevent actual or 

potential public nuisances. 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 

representatives the costs and expenses incurred in 

defense of the action in the manner set forth in 

the Right-to-Farm Act, 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 nuisance a 

written notice ordering its abatement, and to send a copy of the 

notice to the local city, county, or district attorney. If compliance 

with this order is not forthcoming, "the local prosecuting attorney... 

shall immediately institute proceedings for the abatement thereof." 

Section 24 provides that any person, firm, or corporation who violates 

the statute shall be fined between $10 and $200, with each day's 

violation constituting a 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 the negative. 

Professor Presser has observed that "[tlhere is perhaps no more 

impenetrable jungle in the entire law than that which surrounds the 

p. 1973 
Dr. Robert Bernstein - Page 3 (~~-544) 

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 lies with the individual whose 

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 

community at large, a, with the public health 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); Stoughton v. City of Fort Worth, 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 

251.004 was simply to limit the circumstances under which suits may be 

brought against "agricultural operations" that are not 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 the meaning of section 251.004. Actions for damages or 

injunctive relief initiated by private individuals would fit in this 

category. But where a proceeding seeks to enforce a 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 

State v. Terrell, 588 'S.W.2d 784 (TM. 1979) (legislative intent toX 

ascertained from statutory language). In particular, we believe that 

two provisions in this section make it clear that the legislature did 

not intend this section to have any effect upon proceedings brought to 

enforce a law. The first is the sentence in subsection (a) which 

states that the 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." 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 legislative history of the Agriculture Code provisions also 

buttresses our conclusion. This history demonstrates that the 

legislature was concerned with nuisance actions brought, sometimes for 

p. 1974 
Dr. Robert Bernstein - Page 4 0%544) 

purposes of harassment, by individuals who 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 public nuisances. 

We therefore conclude that a defendant cannot recover costs and 

expenses incurred while defending against a legal action brought by 

the department or a local prosecutor under 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 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

George Warner 

P. 1975