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 and Article 696a-1, Vernon's Penal Code. The amendment to Article 696a had a passage date of May 19, 1971. 

Article 696a-1 had a passage date of May 21, 1971. 

you state that these two Acts appear to denounce the 

same offense, but that they prescribe different maximum 

penalties. 

It will 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-decayable waste, including vegetable, animal and fish carcasses, except 

sewage from all public 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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Mr. Ogden Bass, page 2. (M-1009) 

by-products, and shall include all such 

substances from all public and private 

establishments and from all residences. 

As amended Acts 1957, 55th Leg., p. 480, 

ch. 230, S2. 

"(c) The term 'rubbish' shall include 

all non-decayable wastes, except ashes, from 

all public and private 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 'public highway' 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 or which is 

used as a public recreational area and/or 

over which the state has legislative jurisdictions under its police power. As amended 

Acts 1957, 55th Leg., p. 480, ch. 230, g3. 

"Sec. 2. A. It shall be unlawful for 

any municipal corporation, private corporation, firm or person to dump, deposit, or 

leave any refuse, garbage, rubbrsh or junk 

on any public highway in this State, or 

county roads. 

"B. It shall be unlawful for any 

municipal corporation, private corporation, 

firm or person to dump, deposit, or leave 

Y f g bg ubb h junk within 

g3 n~~r~~e;h$rthar~~ hrundizd ?rOO) yards 

of any public highway in this State, whether 

the refuse, garbage, rubbish, or junk being 

dumped, deposited, or left, or the land upon 

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Mr. Ogden Bass, page 3. (M-1009) 

which refuse, garbage, rubbish or junk is 

dumped, deposited or left belongs to the 

person or persons so dumping, depositing or 

leaving it or not. 

"C. The provisions of Subsection B of 

this Section shall not apply when such refuse, 

garbage, rubbish or junk is processed and 

treated in accordance with rules and standards promulgated by the State Department 

of Health. 

"D. The provisions of this Act shall 

not affect farmers in the handling of anything necessary in the growing, handling and 

care of livestock, or the erection, operation 

and maintenance of any and all such improvements that may be necessary in the handling, 

threshing and preparation of any and all agricultural products. 

"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 left within or nearer than three hundred 

(300) yards of any public highway in this 

State. As amended Acts 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 not more 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 any public corporation, municipality, 

city, town or village, it shall be the duty of 

the County or District Attorney in the county 

in which such violation is threatened, to 

bring suit for injunction to prevent such 

threatened or probable violation. Any person 

affected or to be affected by any such threatened or probable violation shall have the 

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Mr. Ogden Bass, page 4. (M-1009) 

right to enjoin such violation or threatened violation. The enforcement of the 

remedy hereinabove 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, and by the 

Senate on May 19, 1971. Effective Aug. 30, 

1971.) 

"Sec. 4. All laws or parts of laws in 

conflict with the provisions of this Act are 

hereby repealed to the extent of such conflict. 

"Sec. 5. This Act and all of the terms 

and provisions herein shall be liberally 

construed to effect the purposes set forth 

herein. 

"Sec. 6. If any provision of this Act 

or the application thereof to any person or 

substance shall be held to be invalid, the 

remainder of this Act and the application of 

such provisions to other persons or substances 

shall not 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 this Article made changes only 

to its Section 3 which relates solely to the penalty and 

enforcement provisions. 

Article 696a-1, which was first enacted in 1971, reads 

as follows: 

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Mr. Ogden Bass, page 5. (M-1009) 

guilty of a misdemeanor and upon conviction shall be fined not 'less than $15 nor 

more than $200. Every law enforcement offleer of this State and its subdivisions 

shall have authority to enforce the provisions of this Act. 

"Section 2. The seriousness of the 

health, fire and accident hazards resulting 

from litter creates an emergency and an 

imperative public necessity that the Constitutional Fule requiring bills to be read 

on three several days in each House be suspended, and this Rule is hereby suspended: 

and that this Act take effect and be in 

force from and after its passage, 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 on May 21, 1971. 

Effective May 26, 1971)" (Emphasis Added.) 

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 any public highway or county roads of this State." 

The amendment to Section 3 of this Act (Chap. 402, Acts of 

62nd Leg., page 1446) was adopted or passed by the Legislature at a point in time earlier than the provisions of 

Article 696a-1 and thus there was a partial repeal of Sec. 

3 or Article 696a by enactment of Article 696a-1, the later 

statute relating to dumping on or near public 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 effect of the above two statutes is that Article 

696a-1 includes the dumping of trash, junk, garbage, refuse 

and waste on both public and private property and into public waters without written consent: however, the old statute, 

Article 696a, is still in effect and remains the latest expression of the legislature only as to dumping within 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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Mr. Ogden Bass, page 6. (M-l 009) 

SUMMARY 

Article 696a, Vernon's Penal Code, 

controls dumping within three hundred (300) 

yards of public highways and Article 696a-1, 

Vernon's Penal Code, controls dumping in 

relation to other areas therein mentioned. 

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 Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOIA WRITE 

First Assistant 

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