MARKWHITE Attorney General

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AnEqualOpportunity/ AffirmativeActionEmployer 

# TheAttorney General ofTexas

December 31, 1982

Honorable Oscar Ii. Mauzy, Chairman Committee onJurisprudence Texas State Senate State Capitol Buflding Austin, Texas 78711

Dear Senator Mauzy: Opinion **No. MN-563** 

Ri: Validity of ordinances enacted by v.f?bv. a general law city

In 1979, the city of Kirby. which Is ageneral law city. enacted
anordinance entitled:

An ordinance regulating the keeping of animals including but not limited to, livestock, fowl. dogs and cats within the city limits of the city ofKirby; prescribing sanitary conditions for pens and enclosures; providing exceptions; providing a penalty not to exceed two hundred dollars ($200.00); and repealing all ordinances or parts of ordinances in conflict,herewith.

Youhave asked whether this ordinance conflicts with section 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.). Youhave also Inquired about the legality of certain actions taken bythe mayor and city council ofKirby.

Section 251.002 of the Agriculture Codeprovides:

Inthis chapter:
(1) ‘Agricultural operation ’ includes but is not limited to the following activities:... raising or keeping livestock or poultry....

(2) ‘Governmental requirement’ includes any... ordinance..

. promulgated by a... city... **that** has the power to enact or promulgate [it].

Section 251.004 of **the** code provides:

(a) Nonuisance action maybe brought against
an agricultural operation that has lawfully been

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.

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) Aperson whobrings anuisance 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 others related incidental expenses Incurred **in** the defense.
(c) This section does not affect or defeat the right ‘of any person to recover for injuries or 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 orportion of anagricultural operation.

The fundamental question is whether section 251.004 llmits the power of amunicipality to enforce anordinance that declares certain activities to be “nuisances.” the negative. For the following rea,aons, weanswer in

Wetherefore conclude that the cdty of Kirby may enforce its livestock ordinance without violating section 251.004.

The key words in section 251.004 are “nuisance action.” If a particular legal proceeding does not constitute a “nuisance action ” within the meaning of,this section
, the section is not triggered. Our task, therefore, Is to determine what the term “nuisance action ” embraces.

Professor Prosser has observed that **“ [tlhere**  is perhaps nomore impenetrable jungle in **the** entire law than that which surrounds the word ‘nuisance.“’ W.Presser, liandbook of the Lawof Torts 571 (4th ed. 1971). The term is difficult to define. Stoughton, v. City of Fort Worth. 277 S.W.2d 150, 152-53 (Tex. Civ. App. - Fort Worth 1955.
nowrit), offers this overview of “nuisance” law:

p. 2065Honorable Oscar H.Hauzy- Page3 (m-563)

In abroad sense, anuisance is anything that works injury, harmor prejudice to an individual
or the public.... Anuisance has also been defined a8 anything that ‘obstructs, impairs or destroys the reasonable, peaceful, and comfortable use **of** property....’ ‘A nuisance per se is generally defined as anact,. occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings....’ ‘Acts which are, denounced as illegal by law, when the perpetration of them invade the rights of others will benuisances per se.... ’ Apublic nuisance exists wherever acts or conditions are subversive of public order. or constitute an obstruction of. public rights. (Citations omitted).

Nuisances are classified 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 in the hands of the individual whose rights have been disturbed. Be may, for example, seek either injunctive relief, see, e.g., O’Dauiel v. Libal, 196 S.W.Zd211 (Tex. Civ. App. - Waco1946, nowrit), or damages, m $&w Vestal v. Gulf Oil Corporation, 235 S.W.Zd440 (Tex. 1951). A public” nuisance, on the other hand. involves some substantial interference with the rights of the community at large, such as with the public health, peace or comfort. Usually~ public nuisances are designated as such by astatute or ordinance. Wherethis Is the case, **the** governmental entity which enacted the lawwill be responsible for enforcing it. See generally Storey v. Central Hide and Rendering Company, 226 S.W.2d 615 (Tex. 1950); McKeev. City of Mt. Pleasant, 328 S.W.2d224 (Tex. Civ. App. - Texarkana 1959. no writ); Stoughton

v. City of Fort Worth, supra; W.Presser, crupra, at 572-602.

Weconclude that the legislature’s Intent in enacting section 251.004 was simply to limit the circumstances under which suits maybe brought against “agricultural operations ” that are not being conducted in violation of any law. In other words, where alegal proceeding alleges that an“agricultural operation ” constitutes a“nuisance,” but the operation Is not being conducted in violation of any statute or ordinance, such a proceeding would constitute a “nuisance action ” within the meaning of section 251.004. Proceedings for damages or injunctive relief initiated by private individuals would fit in this category. On the other hand, vhere a proceeding is initiated to enforce a statute or ordinance, it would not constitute a “nuisance action ” under section 251.004.

The language **of** section 251.004 supports this conclusion. See State v. Terrell. 588S.W.2d784 (Tex. 1979) (legislative intent tobe ascertained from statutory language). In particular, two provisions

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in this section makeit clear that the legislature did not intend this section to have any effect upon proceedings brought to enforce a statute or ordinance. The first is the sentence In subsection (a) which states that the subsection “dots ‘not restrict or impede the authority of this state to protect the public health, safety. and welfare or the authority of amunicipality to enforce state law.” The second is the statement in subsection (c) that “[tlhls section does not affect... the right of any person to recover for injuries or damages sustained because of anagricultural operation... conducted in violation of afederal, state. or local statute....”

Additional support for our conclusion can be found by examining section 251.005 of the code. SeeMerchants Fasts Motor Lines. *i::. v. -- Railroad Commission of Texas, 5yS.W. 2d502 (Tex. 1978) (legislative intent to be determined by looking at entire act. not just isolated portions thereof). It provides in part:

..

(a) #or purposes of this section. the effective date of a governmental requirement is the date on which the requirement requires or attempts to require compliance as to the geographic area encompassed by the agricultural operation. The recodification of a municipal ordinance does not change the original effective date to the extent of the original requirements.

.... (c) Agovernmental requirement of a city does not apply to any agricultural operation situated outside the corporate boundaries of the city on the effective date of this chapter. If an agricultural operation so situated Is subsequently annexed or otherwise brought within the corporate boundaries of the city. the governmental requirements of the city do not .apply to the agricultural operation unless **the.**requirement is reasonably necessary to protect persons whoreside in the immediate vicinity or persons on public property in the immediate vicinity of the agricultural operation from the danger of explosion, flooding. vermin, insects, physical injury, contagious disease, removal of lateral or subjacent support, contamination of water supplies, radiation, storage of toxic materials, discharge of firealms. or traffic hazards.

Whensections 251.004 and 251.005 are considered inpari materla, it becomes clear that the legislature has limited both the power to initiate “nuisance actions ” which donot seek enforcement of alav or

-.

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ordinance and the enforceability of laws and ordinances themselves. It has done, however, in twodistinct statutes.

Section 251.005 limits the territorial effect of, among other things, city ordinances. It does not impair the enforceability of ordinances within the geographical areas inwhich the ordinances apply under its terms. In our opinion, if the legislature had meant for section 251.004 to have anyeffect uponthe power of amunicipality to enforce its ordinances even in the areas inwhich they apply, it would have given some affirmative indication in section 251.005 that such ordinances maybe given only limited effect in those areas. Thefact that, in section 251.005, the legislature limited the ter-'torial effect of city ordinances but said nothing about limiting their enforceability within the areas inwhich they apply is strong evidence that section 251.004 should not be read as imposing any such limitations.

For these reasons, we conclude that a legal proceeding that Is initiated to enforce alawor ordinance that classifies anactivity as "nuisance" does not constitute a "nuisance action" within the teaning of section 251.004. Section 251.004. therefore, dots not impair the city of Kirby's right to enforce its livestock ordinance.

Younext ask whether the following resolution of the Kirby City Council violates the OpenRecords Act
, article 6252-17a. V.T.C.S.:

Be it resolved, that to encourage an unhindered flow of coaununication and the discussion and dellberarion of city business matters that by general or special statute cannot be made public
or which might adversely affect the public security. financial interest of the city ofKirby, Texas, or the reputation of any person, and to insure the protection of the attorney-client privilege recognized by law, the mayor, ~11 city council members and the city attorney, or anyone who maybe present during an executive session. shall be prohibited from making the contents of any executive session knownto the public....

To the extent that this resolution prohibits the named individuals from orally "making the contents of any executive session known to the public," its enforceability is not dependent upon the Open Records Act. In our opinion, that act, which' applies to information in the possession 0f.a governmental body, has no bearing upon what members of that body may choose to say in public. In enforcing this resolution, the city might encounter difficulties. such
as the first amendment to the federal Constitution, but the Open Records Actwould not beamongthem.

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To the extent that the resolution applies to such 'things as documents discussed in an executive session or a council member's notes of that session, however, a different question is presented. Until the city receives a formal request for particular information, its right to enforce this resolution would not depend upon the Open Records Act, because the act does not come into play until such request is received. Once a request is received, however, the resolution could have noeffect upon the decision of the custodian of information of the governmental body AS to whether access to the requested material must be granted. If the custodian is asked to release adocument involved in the executive session, in other words, he will have to determine whether the OpenRecords Act requires its release. This resolution cannot shield from public v;tw any information in the governmental body's possession that must be made public under the terms of the OpenRecords Act.

You next ask whether the city council may direct the city attorney "to report directly to the city council regarding all city business." Wehave insufficient facts with which to answer this question. Ingeneral, since the city attorney is employed bythe city of Kirby. wesee no reason whythe city council cannot direct himto report to it regarding city business. On the other hand, the resolution in question also contains A flat prohibition against written orverbal communications between the city attorney andvarious city officers. In enforcing this prohibition, the city could encounter problems under the first amendment. particularly if it takes punitive measures against the city attorney for violating it.

Younext ask whether three city council membersmayprepare A resolution without the knowledge of the mayor, city staff, or the other two council members and then present And pass it at a council meeting. Since you have not indicated the legal problem that you think the above action raises
, wewill assume that your question is whether the affirmative vote of three council membersis sufficient to pass a resolution. You do not present any facts suggesting any violation of the OpenMeetings Act. V.T.C.S. art. 6252-17.

Article 997. V.T.C.S., provides:

All ordinances and resolutions adopted by the council shall, before they take effect, be placed in the office of the city secretary; andthe mayor shall sign those he approves. Such as he shall not sign, he shall return to the city council with his objections thereto. Upon the return of any ordinance or resolution by the mayor, the vote by which the samewas passed shall be reconsidered. If, after such reconsideration. amajority of the whole number of aldermen .agree to pass the same, and enter their votes on the journal of their

p. 2069Honorable Oscar H.Mauzy- Page7 (MW-563)

proceedings, it shall be in force. If the mayor shall neglect to approve or object to any such proceedings for a longer period than three days after the same shall be placed in the secretary's office as aforesaid, the same shall go into effect.
City of Centerville v. Adkisson. 291 S.W.2d798 (Tex. Civ. App. - Waco1956. nowrit), held that A mayor was not an "alderman" within the meaning of article 1033, V.T.C.S;. which required the "consent of two-thirds of the aldermen elected." Likewise, webelieve amayor is not an "alderman" within the meaning of article 997. Since ti.;s is true, even if the mayor refused to approve aparticular resolution, "a majority of the whole number of aldermen" could override his veto. Three of the five "aldermen" constitutr a majority. Thus, under article 997, three city council members may pass a resolution. Of course, it is up to the council to determine whether the manner in which a resolution is brought before it comports with local requirements, rules ofparliamentary procedure, etc. Seegenerally 40 Tex. Jur. 2dMunicipal Corporations 50262. 268.

You next ask whether the mayor has the authority to send a "letter of reprimand" to a city council member. The first amendment protects the individual's right to self expression. This particular letter, moreover, does not threaten the council member with any particular sanctions. Thus, wehave no occasion to consider whether the mayor would be authorized to domore than merely "reprimand" the council member. i.e.. take some sort of concrete punitive action against him. -
Youfinally ask whether the mayor has the authority to establish city policy. Article 996, V.T.C.S., provides:

Themayor shall have power to administer oaths of office. Heshall have authority in case of 8 riot or anyunlawful assemblage. orwith Aview to preserve peace and good order in said city, to order and enforce the closing of any theatre.... Heshall perform such other duties andnossess and exercise -suchother power and authority as may be rescribed and conferred by the city council. &aphasiS added).

Amayor derives his powers and duties from statutes, the city charter. valid ordinances, and resolutions of the city council. S&2 Nixon v. City of Houston, 560 S.W.Zd447 (Tex. Civ. App. - Hous= 114th Dist.] 1977, writ ref'd n.r.e.1; City of Galveston v. Hutches, 76S.W.214 (Tex. Civ. App. - 1903). rev'd onother grounds sub nom. Abbott v. City of Galveston, 79S.W. 1064 (Tex. 1904). After listing specific powers, article 996 provides that the mayor shall possess

p. 2070. Honorable Oscar H.‘Mauzy- Page8 (MW-563)

“such other power... as my be prescribed and conferred by the city council.” Thus, in any particular instance, the mayor’s right to establish policy unilaterally will depend upon whether he has been given such powerbylawor bythe city council.

SUMMARY

1. Thecity of Kirby mayenforce its livestock ordinance without regard to section 251.001 et - n of the Agriculture Code.

2. The Open Records Act, article 6252-17a. V.T.C.S.. has nobearing on the enforceability of
a city resolution forbidding participants in an executive session of the city council from divulging the contents of said session to the public until the city receives a formal request for information at issue in said session.

3. The city council may direct the city attorney to report directly to, the council regarding all city business. Whether its prohibition against discussions with named individuals is enforceable under the first amendment to the federal Constitution would depend uponthe facts of the case.

4. The vote of three council members Is effective to pass aresolution.

5. There is nothing to prohibit a mayor from sending aletter of “reprimand” to acity council member.

6. If authorized by statute or by the city council, the mayor may establish local policy unilaterally.

MARK WRITE Attorney General of Texas

JOHN W.FAINTER,JR. First Assistant Attorney General

RICHARD

E. GRAY

III Executive Assistant Attorney General I.

p. 2071Honorable Oscar H.Mauzy- Page9(MJ-563)

Prepared byJonBible Assistant Attorney General

APPROVED: OPINION

COMMITTEE

SusanL. Garrison, Chairman JonBible Rick Gilpin Patricia .Hinojosa JimMoellinger Stan Reid

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