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 lnVe 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 pub110 rIvera, bapous,.lagoons, oreeks, lakes, 

bays and lnletrr.ln this State, and all that 

part or.the Gull of b!exloo withln.the~ jurlsdiotion of thi8 State, together with their 

beds and bottoms, and all of the produots 

thereor, ehall continue anfl.r~ain the FZOperty of the State of Texas., exoept in IJO 

rar as the State shall permit the use at 

aald waters and bottoms, or pemlt the taking 0r the produots or euah bottom and 

waters, and in so far a8 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 of marine 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 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 property right therein, Furthermore, the preeervatlon or the wild game llre ot the State, 

iholuding the fish In It8 streams and coastal 

waters, ia a matter in whloh 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 

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 enforoenent 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 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, 

any wa e 

private or munioi 'al, 

er oourse or other publio ti 

to pQllute 

ody of water, 

by throwing, oaatlng or depositing, or oausing~ 

to be thvown. cast or deDoait.ed an9 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, 

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~harmrul 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 throwing, casting, discharging or depositing crude 

petroleum, 011, reiinery wastea or oil yell 

wastea or acoumulations ol'suoh deposits, oovered an area of suoh water in exoeas of' ten thousand (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 prodSian or this Act or any direotor or orrlcer 

of a corporation or member of a firm or partnership or receiver 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 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 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 

Cotaviesion snd 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'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 application of the state 'bs the dlstrlot court or 

Wharton oouuty, ~preaumably pursuant 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 in plaintiff's petition, and especially from permitting 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 lndlcated in the beginning, th.is order enjoined 

appellant rrom thevlolatlon of apeoifio statutory provisions refleoted in, the oited artiales, 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 rendered 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, notwIthstandIng the Ignorance of the offioials of the defendant oompany or a leaky pipe which was 'pennittlng salt 

water to flow into the water 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 order would not 

be Invalid inasmuch as the deiondant cunpany was violating 

the law, and therefore the Injunctive order did not Interfere 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 respectrully 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 rscult 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 partioular 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) renders, we believe, 

(3). 

umeoessary an answer to your question 

We trust this ansusrs your inquiry satlstaatorily 

and we remain 

Very truly yours 

ZCS:AW