MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711.2546 

512l475~2501 

Telex 9101674.1367 

Telecopier 51214750266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201.4709 

2141742-6944 

4824 Alberta Ave.. Suite 160 

El Paso. TX. 79905-2793 

91515353464 

Dallas Ave., Suite 202 

h--4lon. TX. 770026966 

71316500666 

606 Broadway. Suite 312 

Lubbock. TX. 79401.3479 

8061747.5236 

4309 N. Tenth. Suite B 

McAllen, TX. 78501-1665 

512l6624547 

200 Main Plaza. Suile 400 

San Antonio, TX. 76205.2797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

December 31, 1982 

Honorable Oscar Ii. Mauzy, Chairman 

Committee on Jurisprudence 

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 a general law city. enacted 

an ordinance 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 

of Kirby; 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. 

You have 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.). You have also Inquired about the legality 

of certain actions taken by the mayor and city council of Kirby. 

Section 251.002 of the Agriculture Code provides: 

In this 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) No nuisance action may be brought against 

an agricultural operation that has lawfully been 

p. 2064 
Honorable Oscar H. Mauzy - Page 2 ,(MW-563) . 

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 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 or portion of an agricultural operation. 

The fundamental question is whether section 251.004 llmits the 

power of a municipality to enforce an ordinance that declares certain 

activities to be “nuisances.” 

the negative. 

For the following rea,aons, we answer in 

We therefore 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 no more 

impenetrable jungle in the entire law than that which surrounds the 

word ‘nuisance.“’ W. Presser, liandbook of the Law of 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. 

no writ), offers this overview of “nuisance” law: 

p. 2065 
Honorable Oscar H. Hauzy - Page 3 (m-563) 

In a broad sense, a nuisance is anything that 

works injury, harm or prejudice to an individual 

or the public.... A nuisance 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 an act,. 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 be nuisances per 

se.... ’ A public 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.Zd 211 (Tex. Civ. App. - Waco 1946, no writ), or damages, m 

$&w Vestal v. Gulf Oil Corporation, 235 S.W.Zd 440 (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 a statute or ordinance. Where this Is the case, 

the governmental entity which enacted the law will be responsible for 

enforcing it. See generally Storey v. Central Hide and Rendering 

Company, 226 S.W.2d 615 (Tex. 1950); McKee v. City of Mt. Pleasant, 

328 S.W.2d 224 (Tex. Civ. App. - Texarkana 1959. no writ); Stoughton 

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

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 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. 588 S.W.2d 784 (Tex. 1979) (legislative intent tobe 

ascertained from statutory language). In particular, two provisions 

p. 2066 
Honorable Oscar H. gauzy - Page 4 (lC+‘-563) 

in this section make it 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 a municipality 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 an agricultural operation... conducted in 

violation of a federal, state. or local statute....” 

Additional support for our conclusion can be found by examining 

section 251.005 of the code. See Merchants Fasts Motor Lines. *i::. v. 

-- 

Railroad Commission of Texas, 5yS.W. 2d 502 (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) A governmental 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 who reside 

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. 

When sections 251.004 and 251.005 are considered in pari materla, 

it becomes clear that the legislature has limited both the power to 

initiate “nuisance actions” which do not seek enforcement of a lav or 

-. 

p. 2067 
Honorable Oscar H. Mauzy - Page 5 W~S63) 

ordinance and the enforceability of laws and ordinances themselves. 

It has done, however, in two distinct 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 in which the ordinances apply 

under its terms. In our opinion, if the legislature had meant for 

section 251.004 to have any effect upon the power of a municipality to 

enforce its ordinances even in the areas in which they apply, it would 

have given some affirmative indication in section 251.005 that such 

ordinances may be given only limited effect in those areas. The fact 

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 in which 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 a law or ordinance that classifies an activity 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. 

You next ask whether the following resolution of the Kirby City 

Council violates the Open Records 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 of Kirby, 

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 may be present during an executive session. 

shall be prohibited from making the contents of 

any executive session known to 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 Act would not be among them. 

p. 2068 
Honorable Oscar H. Mauzy - Page 6 (MW-563) 

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 no effect 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 a document involved in the executive session, in other words, 

he will have to determine whether the Open Records 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 Open Records Act. 

You next ask whether the city council may direct the city 

attorney "to report directly to the city council regarding all city 

business." We have insufficient facts with which to answer this 

question. In general, since the city attorney is employed by the city 

of Kirby. we see no reason why the city council cannot direct him to 

report to it regarding city business. On the other hand, the 

resolution in question also contains A flat prohibition against 

written or verbal communications between the city attorney and various 

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. 

You next ask whether three city council members may prepare 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 , we will assume that your question is 

whether the affirmative vote of three council members is sufficient to 

pass a resolution. You do not present any facts suggesting any 

violation of the Open Meetings 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; and the 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 same was passed shall be reconsidered. 

If, after such reconsideration. a majority of the 

whole number of aldermen .agree to pass the same, 

and enter their votes on the journal of their 

p. 2069 
Honorable Oscar H. Mauzy - Page 7 (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.2d 798 (Tex. Civ. App. - 

Waco 1956. no writ), 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, we believe a mayor is 

not an "alderman" within the meaning of article 997. Since ti.;s is 

true, even if the mayor refused to approve a particular 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 of parliamentary procedure, etc. See generally 40 

Tex. Jur. 2d Municipal 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, we have no occasion to consider whether 

the mayor would be authorized to do more than merely "reprimand" the 

council member. i.e.. take some sort of concrete punitive action 

against him. - 

You finally ask whether the mayor has the authority to establish 

city policy. Article 996, V.T.C.S., provides: 

The mayor shall have power to administer oaths 

of office. He shall have authority in case of 8 

riot or any unlawful assemblage. or with A view to 

preserve peace and good order in said city, to 

order and enforce the closing of any theatre.... 

He shall perform such other duties and nossess and 

exercise -such other power and authority as may be 

rescribed and conferred by the city council. 

&aphasiS added). 

A mayor 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.Zd 447 (Tex. Civ. App. - Hous= 

114th Dist.] 1977, writ ref'd n.r.e.1; City of Galveston v. Hutches, 

76 S.W. 214 (Tex. Civ. App. - 1903). rev'd on other grounds sub nom. 

Abbott v. City of Galveston, 79 S.W. 1064 (Tex. 1904). After listing 

specific powers, article 996 provides that the mayor shall possess 

p. 2070 
. Honorable Oscar H.‘Mauzy - Page 8 (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 power by law or by the city council. 

SUMMARY 

1. The city of Kirby may enforce 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 no bearing 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 

upon the facts of the case. 

4. The vote of three council members Is 

effective to pass a resolution. 

5. There is nothing to prohibit a mayor from 

sending a letter of “reprimand” to a city 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. 2071 
Honorable Oscar H. Mauzy - Page 9 (MJ-563) 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia .Hinojosa 

Jim Moellinger 

Stan Reid 

p. 2072