THE L~TI-CBRNEY GENERAL 

OF-XAS 

AUSTIN, TEXAR 78711 

May 20, 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 “an adequate 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. 

,By Section >, 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 may do 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. Camp v. Gulf Production 

-4204- 
Rep. James L. Slider, page 2, (M-866) 

%$%% 97 200 S W ‘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 much as 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 may be appropriate 

thereto. ” With this in mind, may the Legislature validly 

provide for a new and additional etatutory cause of action 

by which the public, or any member thereof, may exercise 

their legal responsibilities to preserve the natural resources by abating illegal pollution? 

We must 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. No language 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 

-4205- 
Rep. James L. Slider, page 3, (M-866) 

Attorney General Cpinlon No. ~-856 (1971), wherein only the 

state as the sovereign may act in bringing a quo warrant0 

action, represented by its constitutional officers. The ctate 

16 always a necessary party in such proceedings. Allen v. 

Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928); Staples v. State ex 

Thus, a private person could not Institute an 

of the State where the property right or duty 

Involved belon a exclusively to the state. Herndon v. Hayton, 

28 S.W.2d 885 fTex.Civ.App. 1930, error ref.). 

On the 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 law to the effect that the rights of 

Individual citizens to enforce rights of the public at large by 

actions on behalf 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 by any of 

the State’s attorneys. These actions take varloua forms: c 

mandamus, Injunction, prosecution, etc,. They may be for legal 

equitable or declaratory relief. They may be prosecuted for 

the enforcement of a public duty without ahowing any Interest 

peculiar to the Individual plaintiffs as would be neceesary to 

enforce private rights. In McLaughlin v. Smith, 140 S.W. 248 

(Tex.Clv.App. 1911, error rer. 1, a mandamus action, the court said: 

,f when the question is one of public 

right, ‘and’the object of the mandamus ie to procure the enforcement of a public duty, the people 

ought to be regarded a8 the real party in interest, 

and that the relator, at whoae instigation the 

QrOCeeding@ are inetltuted, need not show that he 

hae any interest, special and peculler to himself, 

in the result, and that It is sufficient to show 

that he Is a citizen and as such interelted In the 

execution of the laws; . . .‘I (at Q. 251.). 

In support of mandamus actions by members of the public at 

large see also Willey v. Fennell, 269 S.W.2d 407 (Tex.Civ. 

AQP. 1954, no wrltjand Dubose v. Woods, 162 S.W. 3, 5 (Tex. 

Clv.App. 1913, no writ). 

In the case of Andereon v. Houts, 240 S.W. 647 (Tex. 

Clv.App. 1922, no writ) certain citizens of a road district 

eued the officers of the district and the county judge and 

county coxunlseionera and others, for Injunction to restrain 

-4206- 
Rep. Jamea L. 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. On thi6 isroe 

it said: 

II 0 . . It hae been to0 many times decided 

that a citizen and taxpayer may Institute and 

maintain an action to restrain an officer, atate 

or municipal, from performing Illegal, unauthorized, 

and unconatltutlonal 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, we find 

the following etatement: 

it has been held by most of the 

courts’&at where the queetlon is one of public 

right, and the object of the mandamue is to preserve the enforcement of a public duty, a private 

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 18 held 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 name of the state.” 

7 A.Jur02d 17, Attorney General9 Sec. 13. 

The right 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 Law 91-604, Section 

304, 42 U.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 may bring euit after giving 

sixty days notice of the violation, and If uncorrected, 

he may base 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 common law 

1s not written into the Constitution but may be 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 8 S.W. 597 (19151, 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 7 Am. 

jur.2d 8, Attorney-Ceneral, Section 7, and’authoritles cited, 

holding that common law duties and powers may be 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, 317 F.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 Law Review 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. When the 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 may do 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. When the?eglslature 

creates a new or addltfonal cause of action, it may constitutionally authorize the Attorney Generaland others to 

prosecute such a cause. 

(Tex Sup. 1959). 

Smith v. State, 328 S.W.2d 294 

In many pollution 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, Raud v. 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 Qrocedure will no doubt 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 

mey not sue on behalf of, or as representative of, the state, 

for only the County or District Attorney or Attorney General 

may represent the state and control its intereats In a law 

suit 1n the dfstrict court. 

95 S.W,2d ‘731 (rg28). 

Allen v. Fisher, 118 Tex. 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, 356 i 

udgment 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 

-4209 _ 

. 
. 

Rep. James L. 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 80 a6 to incorporate them by 

reference, as hereinbelow enumerated. By the atatement In 

thia section aa to the nature of particular conduct, it 

could be argued that for a defendant to ahow his conduct 

to be valid he muat show that it I@ reasonably required for 

the promotion of the public health, safety and welfare. If 

read literally, the net effect of thla section may well place 

a cruahlng burden of proof upon a private defendant, poaalbly 

to the extent of a violation of the due process clause of th@ 

Fourteenth Amendment, United States Constitution, and of 

Article I, Section 19, Texas Conetltution. .The absolute 

terms uaed to describe the basla for the cauee of action, If 

literally applied, may be such aa to render the Bill 

unconatltutionally vague. However, to uphold lta validity, 

a court may well Interpret the causes of action described 

to be those aa arising from a violation of theme standards 

preacrlbed by law in other atatutea when read 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, on water pollution; Article 

698d, Texas Penal Code, on air pollution, etc. We call this 

to your attention in connection uith our conslderqtlon of 

poeslb3e conetltutional defects,. 

Furthermore, we are concerned with the constitutional 

validity of the caption of the Act, which reads: 

“An Act 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; 

and declaring an emergency.” 

The above meagre proviaiona raise a serious queation of 

constitutionality ae to the caption’6 legal sufficiency. 

Article III, Section 35, Conetitution OS Texas, requires that 

an act contain no subject not expre6aed within the title. 

The purpose of this conatituttonal requirement is to require 

full and fair notice be given of the new oubatantive featurec 

of the act and to prevent surprise or fraud by meana of the 

provisions of the bills OS which the titles give no intimation 

and which might be overlooked and unintentionally adopted.. See 

-4210- 
. . 

Rep. James L. Slider, page 0 (M-866) 

Kelly v. WillZame 346 S.W.2d 434 (Tex.Clv.App. 1961, 

error ref. n.r.e. I. 

Insofar ae it fails to give notice that a new and 

Independent cause of action unknown at common law ia provided, 

conferring standing to sue upon private persons as well a@ 

the state, ite agencies and political subdivisions, and all 

others, to enforce the public rights In the preservation of 

the natural resource8 of the etate, the caption could be held 

to be constitutionally defective. While there are no case8 

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 56 ia not unconstitutional 

inaorar e.8 It euthorizee private Individuals 

to maintain legal actlone on behalf ol the 

public to enfowe public rights under tht 

state’pollutfon lawn. Such Bill 10 not 

unoonstitutional in permlttlng private 

individuals to 6ue the state and It8 agencies 

and political subdivision0 and to aid public 

officials where the state or Its agencies and 

political subdlvlelona are joined a6 a 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 a standard either 

expreseed in the Bill or by reference to other 

rrt8tutcm. The caption of the Ml1 may also be 

held to be constitutionally defecttve Sor 

Sellure.to give fair notice of the new and 

independent mtatutory eaumea of action created 

and unknown at common 18u. /“IT 

tfuly, 

/ 

-4211- 
. . . 

Hon. James L. Slider, page 9 

Prepared by Kerns Taylor 

Assletant At'tpmey General 

APPROVED: 

OPINION COiYMITTEE 

W. E. Allen, .Acting Chairman 

Mary Ellen Keith 

Lewis Jones 

Malcolm Quick 

Malcom Smith 

Ml?ADE F, GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

Firet Assistant 

(M-866) 

-4212-