OFFICE OF THE AIK)RNEY GEi’4ERALOF TEXAS **AUSTIN**

Came, lbh and OyetierOoPrnieaion Auetlns Texas
Gontlemenr Attention: Hon. Wm. J. Tuoker

Youirletter, in

the tmya and 0GulfSoarrt

of Texas obtain lnjunotlve ,personor persone (other ocmnlttlng the eote set 

### or1, on the grounds that titutes a pub'lionulefmoe? Can lnVe shall quote the pertinent $roviaione O? the varfous **8tdiUtOB** of Texas &latlngto the aupj,eotof your inqa;LrJr.
Artlole 7461, Revl8rd Oivil Statutes of ,Telaa,Game, Fish and Oyster hmni8sion, Page 2

reads, in part, as folLowsr

"Thewaters ofthe ordinary flow and underflow and tides of every flowing river or natural stream, 

### 0rall lakes, bays or arms 

### orthe Gulf ofMexico, and the storm, 

### rl00dor rainwatem 

### orevery river or natural stream, oanyon, 

### ratine,de reeelon, 

### orWaterehed, within the State of 8exas, 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 rreshwater 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 pub110 rIvera, bapous,.lagoons, oreeks, lakes, bays and lnletrr.ln

### this State, andall that part or.the Gull of b!exloowithln.the~jurlsdiotion of thi8 State, togetherwith their beds and bottoms, and all of the produots thereor, ehall continue anfl.r~ain the FZOperty ofthe State of Texas.,exoept in IJO rar 

### asthe State shall permit the use at aaldwaters and bottoms, or pemlt the taking 

### 0rtheproduots 

### oreuahbottom and waters, and in so fara8 thie une ehall relate to or afreot the taking and oomervatfon or fish, oyntera, shrimp, oraba, olems, turtle, terrapin, musaela, lbbatera, and all other kinds ald forms ofmarine liie, or relate 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$, III accordauoe with anb by the authority vested in himby the laws **0r** this State.* Touching the property rights of the State of Texas in themarine 1ife:odtthe tfdalwaters of this State, we'quote rrom an opinion by the Ccmmlasion orGame; Fish and Oyster Commisslan, Page 3

Appeals of Texas, Inthe 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 property right therein, Furthermore, the preeervatlon or the wild game llre ot the State, iholuding the fish In It8 streams and coastal waters, ia amatter inwhloh the people generally over the State are intereeted....= 

### Artiole 4444, Revised Statutea of Texas, reada, in part, aa r0110wa:

RNo person, 

### rim or oorporation, private ormunicipal, shall pollute anywater course or other publio body ofwater, 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 offish and oyBter8, the Game, Piah and Oyster Co#mleaioner~or his deputies, may have jurisdlotlon in the enforoenent hereof..... Upon the oonviotion orany person ror violating this law, the oourtnor JU~R thereof Inwhloh euoh oonviotion Ishad, shall isrrueawrit or lnjuuotlon enjoining and reatrainlw the parsonor.oorporation reaponalble 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, anywae private or

### munioi'al,

eroourse or other publio ti to pQllute ody ofwater, by throwing, oaatlng ordepositing, or oausing~ to be thvown. cast or deDoait.edan9 orude Detrolows, 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,

orhis deputies, may have jurisdiction in the enforaement of this chapter. Aviolation of any of the provisions of this ahapter shall be punished by a fine Of not less than ~100.00 and notmore 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, saltwater, 011 refinery waste8 or oil,wellwaates in or on any stream, water course or natural body orwater 

### 0rthis State or in suah proximity thereto that such crude petroleum, oil, aoids, sulphur, salt water, oil rerinerywastes or,oilwell wastes will reaoh suoh stream, water course ornatural body ofwater; providing, however, that salt water'or sulphur water, when auah eulphur water is .BOtreated that itnil1 not be~harmrul to aquatio lire or rxrlne organiams,.may be deposited in the tidalwaters of this State; and provid!~nSfurther thatwhen it is charged that there is aviolation of this A&t by throwing, casting, discharging or depositing crude petroleum, 011, reiinery wastea **or** oilyell wastea or acoumulations ol'suoh deposits, oovered an area of suohwater in exoeas of'ten thousand (10,000) square teet orwas 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 

### prodSian

### orthis Act or any direotor or orrlcer of a corporation ormember of a firm or partnership orreceiver whose oorporation, ilrm, partnershia or raoelvership is responsible for the operati&& oauslng a violation of any provision 

### or this Aat shall be deemed guilty of amisdemeanor and upon oonvlctlon shall be fined In a sum not less than Two Hundred 9ollars,($200.00) normore than One Thousand Dollars ($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 representatives **is** oharged with the duty of enforolng 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 Cotaviesionsnd depoaited In the State Treaaury to the oredit of the Speoial Game Fund."
The answer to your fir& queStiOn is, therefore, found in the i'oregolngprovisions or the Penal Code.

You then askwhether 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 ofwhhiohis to destroy themarine 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 oplnlion0r the oourt:

"Graves, X. **This** appeal prooeeda fran a temporary injunction, issued on the application of the state 'bsthe dlstrlot court or Wharton oouuty,~preaumablypursuant to artiales 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 repreaentativea, "in all things aa prayed for inplaintiff's petition, and especially from permitting thewaters emanating and,eaaaping from theb?oOarsonwell 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 lndlcated in the beginning, th.isorder enjoined appellant rrom thevlolatlon of apeoifio statutory provisions refleoted in,the oited artiales, partloularly InR. S. art. 4444, whioh makes it unlawful for 'any peraon, firm or oorporetion ....to pollute anywater course or other publio body ofwater, by throwing, oasting or aeposfting, or oausing to be thrown,

## 34

Game, Fish and Oyster Co!maiasion,Fage 6

oaat, 

### ordepoalted 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 BhOwIIto 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 tomarine lire end+@. aontlnued, would kill all the fish life In .thestream; .thatthe pollution of the stream made thewaterUnfit fcr QrInkIng by livestook and rendered the stream Useleas to riperian owners; that the aote complained ofwere 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 ~thatthe destruotion ot the fish lff'e would be a destruction of property of the State andwould 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.antoaapany rrom polluting the water supply of the oIty or Groesbedk, notwIthstandIng the Ignorance of the offioials of the 

### defendant oompany or a leaky pipewhich was 'pennittlngsalt water to flow into thewater 8Upply of the

### oity. .In disoussing the question of the abuse of discretion on the part of the trial court, the appellate court stated that, irrespeotive of this question?;the injuuotlve orderwould not be Invalid inasmuch as the deiondant cunpany was violating the law, and therefore the Injunctive order 

### did not Interferewith its lawful rights. The language of the ao.Urt, In this partloular, is as follows:

"Sinoe the appellant has no right to pollute thewaters ofNavasota River and its tributaries, thewrit granted in this case In nowise interf'eres.withappellant's lawful right, and the appeal i'romthe granting of thewrit prasents nomerit."

As a general.proposItlon, therefom, you are respectrully advised that orImina1 oharges may be instituted

## 348

G&e, Fieh an8 Oyster Cmuuisaion, Page 7

against a person orpersons polluting the bays an8 bapRps on the tidalwaters of the gulf ooast, the rscult ofwhloh is to destroy the marine life in suoh waters and the oiroumstanoes ofwhioh othemlse ara within the purvisw or the cgmted provisions of the Penal Coda. or oourse, a spaoitio opinion on a partioular situation oan be resolved onlywith 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) renders, we believe, (3). umeoessary an answer to your question

**We**trust this ansusrs your inquiry satlstaatorily andwe remain
Very truly yours

ZCS:AW