THE L~TI-CBRNEY GENERAL OF-XAS AUSTIN, TEXAR 78711

May20, 1971

Hon. Jane8 L. Slider Opinion No. M-866 Chairman State Affairs, Committee Re: Constitutionality of House of Representatives H.B. 

### 56, 62nd Leg., State Capitol R.S. (Environmental Austin, Texae Protection Act of 1971). Dear Repreaentative Slider: You request our opinion on the constitutionality of House Bill 

### 56, 62nd Legislature, Regular Session 1971, the Environmental Protection Act of 1971. The companion Bill to it I@ Senate Bill 145. In brief, by this bill, the Legislature in Section 2 finds and declares that each person le entitled by right to protect and preserve the air, land, and all natural reeourcee of the etate; that it ie in the public interest to provide each person with 

### “anadequate remedy” to so protect It 

### “from pollution, Impairment, or deetruction.” Section 3 directs that the State, and any etate agency or any political subdivision authorized to exercise any jurisdiction over or to have any effect upon such resources, shall do ao in public truet so as to protect and maintain a quality environment for the citizens. ,BySection >, not only are the Attorney General, and the state agencies and political subdivisions authorized to maintain an action in the district courts of the state “for declaratory and equitable relief ” but also any pereon or other legal entity maydo eo against the state, the state 

### agencies, and political subdivisions, or any person or other legal entity, for the protection of such reeources. Under the consistent express holdings of our Supreme Court, a statute will not be held unconstitutional unless it Is susceptible of no other construction than that It unequivocally and by Its clear language plainly excludes the right and power of the constitutional officers named 

### to represent the state in court. Campv. Gulf Production
-4204-Rep. James L. Slider, page 2, (M-866)

%$%% 97 200 SW‘375 (1918); Staplee v. St

122 Tex. 383 61 S.W.2d 773 (1933); Ma;;evexT;rell,1 p, 112 T;x. 61, ‘245 S.W. 639 (1922) In this connection, e court will resolve any doubt In faior of constitutionality and presume a constitutional Intent In the leglalative act, adapting that construction which will uphold the,statute. Watts v. Mann, 187 S.W.2d 917 (Tex.Clv.App. 1945, error ref. State v. Shoppers World, Inc., 380 S.w.2d 107 (Tex.Sup. ; 1964 : 53 Tex.Jur.2d 169 Statutes, Sec. 126. In Watte v. Mann, supra, It was obs&ved that our Constitution is not regarded eo muchas a grant of power but aa a llmltatlon of power, and all power not limited by It Inheres In the people. Thue, a legislative act will be valid when the Constitution contains no prohibition against it. Section 7 of the Bill provides that it I@ Intended to be ‘supplementary” to exlatlng statutes and administrative and regulatory procedure~e. Sections 10 of the Bill contains the usual eeverabillty clause. The Constitution declares in Article XVI, Section 59, that the preservation, conservation, and development of the natural resources of the state are rights an! duties of the

“public, ” and provides In this respect that

. . . the Legislature shall pass all euch laws as maybe appropriate thereto. ” With this in mind, maythe Legislature validly provide for a newand additional etatutory cause of action by which the public, or any member thereof, mayexercise their legal responsibilities to preserve the natural resources by abating illegal pollution? Wemust presume that the proposed statute, if passed, intended not to take away any conatltutional power of the County or District Attorney or Attorney General to represent the “State” In court. Nolanguage in the Bill requires an interpretation which would take away the constitutional powers of these officers. .It must be recognized that the authority to represent the State at?the sovereign In actlone in the courts on behalf of the State in Its sovereign capacity to enforce Its rights is vested by the constitution exclusively In the atate’s Attorney General, District, and County Attorney and the legislature Is without power to divest that authority or to delegate it to others. Agey v. American Liberty Pi= Line Co., 141 Tex. 379, 172 S.k.2d 972 (1943); and eee
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### Rep. JamesL. Slider, page 3, (M-866)

Attorney General Cpinlon No. 

### ~-856(1971), wherein only the state as the sovereign mayact in bringing 

### a quowarrant0 action, represented byits constitutional officers. Thectate 16always anecessary party in such proceedings. Allen v. Fisher, 

### 118Tex. 

### 38,9S.W.2d 

### 731 (1928);Staples v. State ex Thus, aprivate person could not Institute an of the State where the property right or duty Involved belon aexclusively to the state. Herndonv. Hayton, 

### 28S.W.2d 

### 885fTex.Civ.App. 

### 1930,error ref.). Onthe other hand, representation of the “State” as the eoverelgn Is not neceaaarily to be equated in 

### every case with representation of the right8 

### of the public at large. Our 

### Texas courts have settled the lawto the effect that the rights of Individual citizens to enforce rights of the public at large by actions onbehalf of the public to enforce public rights by compelling compliance with the lawe,are not suite by the State ae the eovereign entity which require either that the State be a party 

### or that these court actions be proeecuted byanyof the State’s attorneys. These actions take varloua 

### forms: c mandamus,Injunction, prosecution, etc,. Theymaybe for legal equitable or declaratory relief. Theymaybe prosecuted for the enforcement of apublic duty without ahowing any Interest peculiar to the Individual plaintiffs as would be neceesary to enforce private rights. In McLaughlin v. Smith, 140S.W. 

### 248 (Tex.Clv.App. 1911, error rer. 1, amandamusaction, the court said:

,f whenthe question is one of public 

### right, ‘and’the object of the mandamusie to procure 

### the enforcement of apublic duty, the people ought to be regarded a8the real party in interest, andthat the relator, at whoaeinstigation the QrOCeeding@ 

### are inetltuted, need not showthat he haeanyinterest, special and peculler to himself, in the result, andthat It is sufficient to show that he Is a citizen andas such interelted In the execution of the laws;

. . .‘I (at Q. 251.). In support of mandamusactions bymembersof the public at large see also Willey v. Fennell, 

### 269S.W.2d407(Tex.Civ. AQP. 

### 1954, nowrltjand Dubosev. Woods, 

### 162S.W.3,5 (Tex. Clv.App. 1913, nowrit). In the case of Andereon v. Houts, 240S.W. 647 (Tex. Clv.App. 1922, nowrit) certain citizens of aroad district eued the officers of the district andthe county judge and county coxunlseionera andothers, for Injunction to restrain -4206-

### Rep. JameaL. Slider, page 4, (M-866)

the alleged illegal expenditure of the QrOCeed8 

### of the sale of 

### certain bonds of the district. The court 

### sustained the right of plaintiffs to maintain the action. Onthi6 isroe it said: II

0

. . It haebeen to0 manytimes decided that a citizen andtaxpayer mayInstitute and maintain anaction to restrain anofficer, atate ormunicipal, from performing Illegal, unauthorized, andunconatltutlonal acta, to require further dlecuaelon.

. . . I,

. . . 11

. . . Thla right does 

### not depend upon
. . . the situation 

### or locality of the taxpayer, This right inures to the benefit of the whole peofllc at the suit 

### of any taxpaying citizen.

. . . (at Q.

### 649.). In any event, the progosad Bill can be upheld a8 ,~ constitutional on still another baels; In 7

### Americen Jurisprudence 2d 22, Attorney General, Section 17, 

### wefind the following etatement:

it has been held bymost of the courts ’&at where the queetlon is one of public right, andthe object of the mandamue is to preserve the enforcement of apublic duty, aprivate person may, In behalf of the public, and without showing any indivfdual or special Interest to be 

### Becured, become a relator, and, through the proper etate officer, Institute the proceeding.” In addition, in certain cacee, where there le a clear mandatory duty to enforce the vio.lation of the law and dlecretlon ik not involved, it 18held that

where the Attorney General refuses to bri.&‘or consent to the brtnglng of a suit to 

### protect the right% of the public, a private 

### Individual may Institute 

### a proceeding on his relation, in the nameof the state.” 7

### A.Jur02d 17, Attorney 

### General9 Sec. 13. Theright of the individual citizen to me 

### to abate 

### -4207-. .

Rep. James L. Slider, page 

### 5, (M-866)

pollution ha@already been conferred by Congrese in the Clean Air Amendments of 1970, Public Law91-604, Section 

### 304,42U.S.C.A., Sectlone 

### 1857,et.aeq. The Individual la there expreasly granted standing to sue,any polluter, Including the United States and any other governmental agency without any requirement of showing special or peculiar Injury or damage to himself; and in case of suit against any administrator, he maybring euit after giving sixty days notice of the violation, and If uncorrected, he maybase his suit upon failure to perform any act or duty required by the Clean Air Act.
Our Supreme Court has recognized that the legislature has the power to grant standing to sue to bring an action against a public body or a right of review on behalf of the public without proof of particular or pecuniary damage to the person suing. This requirement of the commonlaw 1s not written into the Constitution but maybe altered or abolished by the Legislature so as to give standing to sue a person. See Article I, V.C.S.; Scott v. Board of

w 405 S.W.2d 

### 55,56 (Tex.Sup. lybb), upholding a s 

### a u e authorizing an individual 

### taxpayer standing to sue for inSunction to challenge governmental action without showin- any particular damage; Spence v. Fenchler, 107 Tex. 

### 443,10 S.W. 

### 597(19151, 8 upholding a etatute authorizing 

### any citizen the standing to sue to enjoin the operation of a bawdyhouse. In accord, Downs v. Schmld, 955 S.W.2d 1041 (Tex.Civ.App. 1936, rev. on other grounds.) and see 7Am. jur.2d 8, Attorney-Ceneral, Section 7, and’authoritles 

### cited, holding that commonlaw duties and powers maybe altered by the Legislature. Although the above acts involved a public duty which the County or District Attorney wae constltutianaily authorized to discharge for the state in court, the Individual citizen was not DreChded from suing and representing himself 

### a@part of the public. See also National Audubon Society, Inc. v. Johnson, 

### 317F.Supp. 1330, 1335 (S.D,Tex. 1970), stating that while the Society had no standing to sue,
“conservationists ahould seek a leglelative enactment which would authorize any citizen of the etate to bring suit agalnet any polluter, The Court 1 private or public, to protect water resources.v

asoc e 

### 4t,Texas LawReview 1172, llm wherein It Is stated:

“Since the citizens are beneflclaries, it Is only logical that they should be able to force the state to protect their rights. Thus when the


### -4208-.

Rep. James L. Slider, page 

### 6 (M-866)

etate fails to protect navigable water8 from pollution, citizens should be able through judicial action to compel the appropriate state authority to remedy the problems. Whenthe state itself causes pollution, the state should be eubject to suit D ” Without statutory authorization conferring a right of a private citizen to sue, when a public right is injured, only legally empowered authorfties maydo 80. San Antonio Conservation Society v. City of San Antonio, 256 S.W.2d 59 263 (Tex,Civ,Ap~ error re
. ; ational Audubon Society, Ine. v. Johnson, sipra. Whenthe?eglslature creates a new or addltfonal cause of action, it mayconstitutionally authorize the Attorney Generaland others to prosecute such a cause. (Tex Sup. 

### 1959). Smith v. State, 

### 328S.W.2d 

### 294

In manypollution abatement cases under the Bill, the state may have such a substantial interest that it will be a necessary party to the maintenance of the action, and the Attorney General or County or District Attorney, shall represent the state, such as when the action of state officials ie sought to be controlled, or state actions are attached, or state land is d.nvolved, National Audubon Society, Inc. v. Johnson, supra, Raudv. Terrell, supra. While the Bill 3.8 1_1 m-on the question of procedures and joinder of parties, the existing procedural statutes and Rules of Civil Qro

### cedure will nodoubt control these questione and the courts will have to decide ,in each case these matters on the issuea joined and the facts presented. la any event, the citizen meynot sue on behalf of, or as representative of, the state, for only the County or District 

### Attorney or Attorney General mayrepresent the state andcontrol its intereats In alaw suit 1n the dfstrict court. 

### 95S.W,2d ‘731 (rg28). Allen v. Fisher, 

### 118Tex. 

### 38,

In this connection, in suits authorized under the Bill, unless the State ie made a party to 

### the proceeding, it will not be bound by any See Lee v. CalverA, 

### 356iudgment rendered in the suit. 

### ref., n,r,e.JO .W.2d 

### 840 (Tex.Clv.App. 1962, 

### error
There is also another conatftutional problem which 

### arises by reaso.? of the provlalons of Section 5(a) of the Bill, which fails to refer fn clear language the b88lc
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_

..



### Rep. JamesL. Slider, page 7 (M-866)
ingredients or element@ of the causes 

### of action conferred, nor doea the bill speciflcally tie in with existing air and water 

### pollution etatutea 80a6 to incorporate themby reference, as hereinbelow enumerated. Bythe atatement In thia section aa 

### to the nature of particular conduct, it could be 

### argued that for a defendant to ahowhis conduct to bevalid hemuatshowthat it I@reasonably required for the promotion of the public health, safety andwelfare. If read 

### literally, the net effect of thla section may 

### well place a 

### cruahlng burden of proof uponaprivate defendant, poaalbly to the extent of a violation of the dueprocess clause of 

### th@ Fourteenth Amendment,United States Constitution, andof Article 

### I, Section 19, Texas Conetltution. .Theabsolute terms uaed to describe the basla for the cauee 

### of action, If literally applied, maybe 

### such aato render the Bill unconatltutionally vague. 

### However, to uphold lta validity, a court 

### maywell Interpret the causes of action described to be those aaarising from 

### a violation of themestandards preacrlbed by law in other atatutea 

### whenread 

### in par1 materia to this Act, 

### such aa the Texae Water Quality Act, Article 7621-d-1, Vernon’s Civil Statutes; Texas Clean Air Act, 

### Article 4477-5, Vernon’s Civil Statutea; Solid Waate Mapoeal Act, Article 4477-7, Vernon’s Civil Statutes; Article 698c, Texae Penal Code, onwater pollution; Article 698d, Texas Penal Code, on air 

### pollution, etc. Wecall this to your attention in connection uith our 

### conslderqtlon of poeslb3e conetltutional defects,. Furthermore, weare concerned with the constitutional validity of the caption of the Act, 

### which reads:

“AnAct 

### relating to suita for 

### declaratory and equitable 

### relief to protect air, water, and 

### natural reaourcea end the public truet therein 

### from pollution, impairment, and 

### dertruction; anddeclaring anemergency.” Theabove 

### meagreproviaiona raise a serious queation of constitutionality ae to the caption’6 

### legal sufficiency. Article III, Section 

### 35,Conetitution OS

### Texas, requires that anact 

### contain nosubject not expre6aed within the title. Thepurpose of this conatituttonal requirement is to require full andfair notice be 

### given of the newoubatantive featurec of the act and 

### to prevent surprise or fraud bymeanaof the provisions of the bills OSwhich the titles give nointimation andwhich might be overlooked andunintentionally adopted.. See
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Rep. James 

### L. Slider, page 0 (M-866)

Kelly v. WillZame 

### 346S.W.2d 

### 434(Tex.Clv.App. 1961, error ref. n.r.e. I. Insofar ae it fails to give notice that anewand Independent cause of action unknownat commonlawia provided, conferring standing to sue uponprivate persons as well a@ the state, ite agencies andpolitical subdivisions, andall others, to enforce the public rights In the preservation of the natural resource8 of the etate, the caption could be held to beconstitutionally defective. While there are nocase8 directly In point as applied to the eubject qmtter, we believe it nevertheless pertinent to call your attentionto this possible constitutional defeat, at this time. SUMMARY House~111 

### 56ia not unconstitutional inaorar e.8It euthorizee private Individuals to maintain legal actlone 

### onbehalf ol the public to enfowe public rights under tht state’pollutfon lawn. SuchBill 10 not unoonstitutional 

### in permlttlng private individuals to 6ue 

### the state andIt8 agencies 

### and political subdivision0 andto aid public officials where the state or Its agencies and political subdlvlelona are joined a6a necessmy party to represent the stateAn such

.. action. Conatltutional probless arise from the vagueness of

’ the causes of action lntendttd 

### and not definitely tied to 

### astandard either expreseed 

### in the Bill or by reference to other rrt8tutcm. Thecaption of the Ml1 mayalso be held to be constitutionally defecttve Sor Sellure.to give fair notice of the newand independent mtatutory eaumeaof action created andunknownat common18u. / “IT tfuly,

/



### -4211-. . .



### Hon. JamesL. Slider, page 9


### Prepared byKerns Taylor Assletant At'tpmey General APPROVED: OPINIONCOiYMITTEE W.E. Allen, .Acting Chairman MaryEllen Keith Lewis Jones Malcolm Quick Malcom 

### Smith Ml?ADE F, GRIFFIN Staff Legal Assistant ALFRED

WALKER Executive Assistant 

### NOLA WHITE Firet Assistant (M-866)

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