78711

1971

Mr. Ogden Bass Opinion No. M-1009 Criminal District Attorney Brasoria County Courthouse Re: Construction of Article Angleton, Texas 77515 696a and Article 696a-1, Vernon's Penal Code, Dear Mr. Bass: wherein they conflict.
you ask us to harmonize the provisions of Article 696a andArticle 696a-1,Vernon's Penal Code. The amendment to Article 696ahad a passage date of May 19, 1971. Article 696a-1 had a passage date of May 21, 1971.
you state that these twoActs appear to denounce the same offense, but that they prescribe different maximum penalties.
Itwill be necessary for clarity to set forth these two statutes in full. Article 696a, as amended, reads as follows:

"Section 1. The following terms as herein defined, shall control in the construction and enforcement of this Act: "(a)The term 'refuse' shall include garbage, rubbish, and all other decayable and non-decayablewaste, including vegetable, animal and fish carcasses, except sewage from allpublic and private establishments and residences. As amended Acts 1957, 55th Leg.,p. 480, ch. 230, Sl. "(b)The term 'garbage' shall include all decayable wastes, including vegetable, animal and fish offal and carcasses of such animals and fish, except sewage and body wastes, but excluding industrial

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by-products, and shall include all such substances from allpublic andprivate establishments and from all residences. As amendedActs 1957, 55th Leg., p. 480, ch. 230, S2. "(c)The term 'rubbish' shall include all non-decayablewastes, except ashes, from allpublic andprivate establishments and from all residences, "(d)The term 'junk' shall include all worn out, worthless and discarded material, in general, including, but not limited to, odds and ends, old iron or other metal, glass, paper, cordage or other waste or discarded materials. "(e)The term 'publichighway' shall mean and include the entire width between property lines of any road, street,way, thoroughfare, bridge, public beach, or park in this state, not privately owned or controlled,when any part thereof is opened to the public for vehicular traffic orwhich is used as a public recreational area and/or over which the state has legislative jurisdictions

under itspolicepower. As amended Acts 1957, 55th Leg., p. 480, ch. 230, g3.
"Sec. 2.A. It shall be unlawful for anymunicipal corporation, private corporation, firm or person to dump, deposit, or leave any refuse, garbage, rubbrsh or junk on anypublic highway in this State, or county roads.
"B. It shall be unlawful for any municipal corporation, private corporation, firmor person to dump, deposit, or leave Y f g bg ubb h junkwithin g3 n~~r~~e;h$rthar~~ hrundizd?rOO)yards of anypublic highway in this State,whether the refuse, garbage, rubbish, or junkbeing dumped, deposited, or left, or the land upon

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which refuse, garbage, rubbish or junk is dumped, deposited or leftbelongs to the person or persons so dumping, depositing or leaving it or not. "C. The provisions of Subsection B of this Section shall not applywhen such refuse, garbage, rubbish or junk isprocessed and treated in accordancewith rules and standardspromulgatedby the State Department of Health.
"D. The provisions of this Act shall not affect farmers in thehandling of anything necessary in the growing,handling and care of livestock, or the erection, operation andmaintenance of any and all such improvements thatmay be necessary in the handling, threshing and preparation of any and all agriculturalproducts.
"E. The State Department of Health shall promulgate rules and standards regulating the processing and treating of refuse, garbage, rubbish or junk dumped, deposited or leftwithin or nearer than three hundred (300)yards of any public highway in this State. As amendedActs 1963, 58th Leg., p. 764, ch. 291, Sl.
"Sec. 3. Any violation of this Act by any person, firm or private corporation, shall upon conviction, subject the offender to a fine of not less than $50 and notmore than 8400, and each day of any such violation shall be treated as a separate offense. In the event of any threatened or probable violation of this Act by anypublic corporation,municipality, city, town or village, it shallbe the duty of the County or District Attorney in the county inwhich such violation is threatened, to bring suit for injunction to prevent such threatened or probable violation. Any person affected or to be affectedby any such threatened or probable violation shall have the

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right to enjoin such violation or threatened violation. The enforcement of the remedyhereinabove provided by injunction shall not prevent the enforcement of the other penalties provided in this Act. (Chap.402,page 1446, 62nd Leg.,passed by the House on May 11, 1971, andby the Senate on May 19, 1971. EffectiveAug. 30, 1971.)
"Sec. 4. All laws or parts of laws in conflictwith the provisions of this Act are hereby repealed to the extent of such conflict.
"Sec. 5. This Act and all of the terms and provisionsherein shall be liberally construed to effect the purposes set forth herein.
"Sec. 6. If anyprovision of this Act or the application thereof to anyperson or substance shallbe held to be invalid, the remainder of thisAct and the application of suchprovisions to other persons or substances shallnot be affected thereby. Acts 1927, 40th Leg., 1st C.S., p. 153, ch. 53;Acts 1947, 50th Leg., p. 328, ch. 188, 91." (Emphasis added.) The 1971 amendment to thisArticle made changes only to its Section 3which relates solely to thepenalty and enforcement provisions. Article 696a-1,which was first enacted in 1971, reads as follows:

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guilty of a misdemeanor and upon conviction shallbe fined not 'lessthan $15 nor more than $200. Every law enforcement offleer of this State and its subdivisions shallhave authority to enforce theprovisionsof thisAct. "Section 2. The seriousnessof the health, fire and accidenthazards resulting from litter creates an emergency and an imperativepublic necessity that the ConstitutionalFule requiringbills to be read on three several days in each House be suspended, and this Rule is hereby suspended: and that this Act take effect andbe in force from and after itspassage, and it his so enacted. (Chap. 366, page 1380,Acts of 62nd Leg., passed by the Senate on April 6, 1971,and by the House onMay 21, 1971. Effective May 26, 1971)" (EmphasisAdded.)
It will be noted by reference to the several revisions of Article 696a that the offenses denounced are set forth * Section 2 thereof and they consist of dumping, etc. "on ?public highway or within or nearer than three hundred (300) yards of anypublic highway or county roads of this State." The amendment to Section 3of this Act (Chap.402,Acts of 62nd Leg.,page 1446)was adopted or passed by the Legislature at apoint in time earlier than theprovisions of Article 696a-1 and thus therewas apartial repeal of Sec. 3 or Article 696aby enactment of Article 696a-1, the later statute relating to dumping on or nearpublic highways and rights-of-way. Article 696a-1 is the latest statute. Ex Parte De La Jesus De La 0, 227 S.W.2d 212, (Tex.Crim. 'ib50); Attorney General Opinion M-906 (1971);Opinion No. V-990 (1950)and cases therein cited. The effectof the above two statutes is thatArticle 696a-1 includesthe dumping of trash, junk,garbage, refuse andwaste onboth public and private property and into publicwaterswithout written consent:however, the old statute, Article 696a, is still in effect and remains the latest expression of the legislature only as to dumpingwithin three hundred (300)yards of any public highway. Ex Parte Gaz Patterson,No. 44575, Tex.Crim. Oct. 26, 1971, not yet of- -ially reported.

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SUMMARY Article 696a, Vernon's Penal Code, controlsdumping within threehundred (300) yards of public highways andArticle 696a-1, Vernon's Penal Code, controls dumping in relation to other areas thereinmentioned. Both statutes are in force as law and can be harmonized since Article 696a-1 only partially repeals Article 696a.

Your; very truly,

Prepared by Roger Tyler Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Robert Flowers John Reeves. Charles Lind Max Flusche
SAM MCDANIEL Staff LegalAssistant
ALFRED WALKER Executive Assistant
NOIA WRITE First Assistant

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