AUSTXN, **?kXAR** 78711

Honorable Cries Cole Chairman, State Committee for Study of **Lend** Ueeand Environmental Control, State Senate Auetln, Texae Opinion No. M-190
RI?: Whether Sec. 13(D) of the Clean Air Act of Texas (Chapter 727, Actc of the 60th Legielature, R.S. 1967) 'requlrec that a local governmentobtain Ttxac lair Control Board approval before It may institute a civil cult for penalties or for ~lnjunctlve rellef under Section 12of said Act, and related questlone.
**Dear** Sir:

Your request for an opinion from thle office concerning the power of local govtrnmente under the Clean Air Act of Texas, 1967, (Cha ter 727, Acta of the 60th Legislature, R.S., Page 1941; Art. 477-5,

f: V.C.S.) andthe Texas Water Quality Act of 1967, (Chapter 313; Acts of tht 60th Legislature, R.S., Page 745; Atit.7621d-1, V.C.S.), relate to almost identical provlslahs In the two laws contiernlng the power of local governments to act. Youpose thirteen qutatlons which bynature of their Importance muetbe repeated herein. 1. "Does Section 13(D) of the Clean Air Act of Texae, 1967, require that a local government gain the approval of the 'Texas Air Control Board before It maylnstltutt a civil cult for penaltlee (or an Injunctive proceeding) under Section 12of the Clean Air Act of Ttxae, 19677"Hon. Crlss Cole

Opinion No, **M-190** - Page 2

It is our opinion that a local govkmment mayact ,lndependently of the Texas Air Control Board in exerclslng~lta powers under Section 13(D): of, the,,,Clean# Air Act,ofY,:~T~x~&,~.i ,;,This,,,,,,, Sectibn prov$des: as,follows;

“(D) In’the s’ame;:k&i~erF&the,‘board, :lai.lbcal\, “’ government, tiporilformal. rfisolutlon of ’ its govei+ .: lng body, mayenforce through Its ownattorney ~~ the provisions of Section 12of this Act. However, a local,government maynot bring anaction. against a state agency~or department, another local government or any other political subdivision of the state for the assessment of.the penalty specified In Section 12. In any suit Instituted by a local government under this subsection, the boards-is authorized to be andmust be a necessary party to the local governmentIs suit.” It Is obvious from the above statute that Section 12 cover‘8 not only penalty acts for civil penalties but Injunctive proceedings as well. Therequirement for joinder of the Texas Air Control Board Is plain. andthe Attorney General or Board must be aerved wlth,pEocesk as anecessary -arty. Coffee v. Wllllam MarshRice Universlt xn addition to the above act 403S.W.2d fI 30 (Tex.‘Sup.66). ns, it Is our opinion that any other suits brought under Section 14of,the Act desianed-to pursue all commonlawremedies available to abate the pollution-or other nuisances or for!damages therefor, would require the joinder of the T&as Air Ccintro$ ,Eoardas a third party plaintiff br defendant under Tex. Rules Clv. Proc., Rule 39. 2.

,“DcSectlons~. 15(a) (2) and

### 16(g) of the Texas Water Quality Act of 1967,require that a local government gain the approval of the Texas Water Quality Board before it mayInstitute ,aclvll suits for penalties under Sections 14and 15or an InJurictlve proceeding under Section Act of lg67?” 

### 16(e) of,the Texas Water Quality
Theprovisions of+the’ sections. of the Tixas Water Quality Act of 1967 are almost ld’triticalj~~n’substance~~o those discussed above In Question 1,&ndti$&tianie”answer,would apply thereto.’ Underthe provlsions.;of ‘S%tion, 

### l'5j~,:.Uhq Texas Water Quality’~Board must be JoXned‘5s a,,$tiird~.pa‘rtypl@ilitiff ‘or defendant In any suit by,a,BoaI. goytr?ent, ‘for injunc,t,&ve.relief, c,lvll penalties, or oommoh~:nuPsafices

.‘~ :,
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Opinion No. M-190- Page 3

parties "Under the Texas:R&es 'ofi',,C.vlll:jProOedure's 'IS "

there a~,dlfferellce:;in.:,legal.'efftct' b&tweeA'?he ',~, $

DhFaab "The'Board'i&~autho&ztd~to be andmust, be a necessary party,to the local government's suit" as used In Section 13(D) of the Clean Air Act andthe phrase "The Board created byttiis act Is authorized to be andmust be a necessary andIndispensable party to any suit bcought by a local government under this section , as used In Sections 15(a) i2) and 16(g) of the Texas Water Quality ect? Although there,ls a legal difference In "necessary" and "Indispensable" parties, It Is our opinion, after examining the Texas Water Quality Act andthe Texas Cl&anAir Act, that In each suit brought by a local government, such as a city, county or water dlstrlct, the appropriate Board, whether It be the Texas Air Control Board (for air pollution) or the Texas Water Quality Board (for water pollution), Is :Indispensable andmust bejoined as a third party plaintiff or defendant, Tex. Rules Clv. Proc. Rule 39; Texas Electric Service Companyv,'Faudrte, 410S.W.2d '477, (Tex.Clv.App., '1967, error ref.).

Wewill consider the next two questions together: “(.a)

(b) "If the Texas Water Quality Eoard were olned in a suit under Section 15(a) (2) or 1 (g) of the Texas Water Quality Act, would the BOardIs refusal to participate In the action as a party plaintiff prevent the local government that filed the suit from prosecuting the action to Its conclusion?" "If the Texas Air Control Board were joined In a suit under Section 13(D) of the Clean Air Act of Texas, would the Eoard's refusal to participate In the action .as a party plaintiff prohibit the local government that file&the suit from Rrosecutlng the action to Its conclusion?

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Opinion No. M-190- Page 4

,.

‘hit is our:opinion that once the appropriati State
~’ Board or the AttoGey,,Gene,ral have been served ‘.wlth citation in ,themanner,provided by,‘law, SaSlure,.;,?:?~ ,(refus&l,OS,the State Board,tti,further Participate “lti.‘tt$;,actl~n iia“a third ” party plaintiff or deferidint, Iwouldliot pr’event the’ Court from proceeding in the case, or the dppellate dourts from exercising any appeal jurisdiction therein. CoSfe,e v. William Rice University, aupra. 5. Thenext Inquiry Is quoted as follows:

“Section 12OSChapter 42, Acts of the 57th Legislature, First Called Session, 1961, (Article 7621d,, Vernonla Texas Civil Statutes - repealed by the,60th Leglalature) providea

“This Act shall not In anywayaffect the right of anyperson to puraue,all legal and, equitable remedies available to abate pollution andother nuisances or recover damages therefrom or both.” Section 20of the Texas Water Quality Act of 1967,provldes, ‘This. Act shall not In anywayaffect,the right OS.any private corporation or Individual to pursue all legal and equitable remedies to abate a
. condition of pollution or other nuisances or recover damages therefrom, or both,’ Section 23of the Texas Water Quality Aat of 1967, In part, provldea ‘To the extent that a general, local, or apeclal l&wmaybe oonstrued to give local governments, aa defined In this act, the authority to set and enforce water quality criteria other than those adopted by the Texas Water Quality Board that law Is repealed.’ Whateffect, if any, dothe quoted provisions of the Texas Water Quality Act cif 1967 have on the authorlty of a city or county to prosecute a nuisance suit - particularly under the provisions of Article 695, Vernon’s Texas Penal Code? Ia the effect different than the effect of the quoted provision from Article 7621d?” Sections 20 and23, Artgcle 7621d-1, donot affedt the authority of a city or county to abate pollution as a c,ovon law public nuisance. TheTexaa Water Quality Act of 1967 la not the aole remedy to abate pc?llution as a public nulaance, ,nor does It cover the entire field of nuisance In pollution

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Oplnlon No. M-190- Page 5

cases, particularly where thenbasis of complaint may be something else, such as health hazards, which Is the purpose of Article 695, Verndnjs Penal Code, to prohibit. Section 20, Article .7621d-1, simply preserve 8the right to bring private nuleance cases apart from the operation of the Act. 6. ~Yournext question we.dlspose of asks for statutory construction:,."Whenconstrued together, what effect have Sections

14and 15of the Clean Air Act of Texas hadupon the nuisance-abatement andordinance-making power of local governments In the matter of air pollution? DoSections 14and 15have any effect on the use of Article 695, Vernon's Texas Penal Code?" : It I&'our opinion that Sections 14and 15,of the Clean Air Act of Texasa&merely a statutory cumulation of rights that have not been superseded by the statutes. Thereal question In regard to validity of local ordinances as to air pollution rests with the determination under Section 15as to whether such ordinances are in fact consistent with the provisions of any statute or rules, regulations or orders of the Texas Air Control Board. 7. Younext ask: : "If a local government makingan Inspection under Section 16(a) of the Texas Water Quality Act dlscovers either (1) that a person or another local government discharging effluent Into the public waters located In the areas over which the local government has jurlsdlctlon has not obtained a permit for such a disc,harge;. or (2) that a person or another local government whopossesses a permit to discharge Into the public waters are making dlscharges that are not In compliance with the requirement@ **of** the permlt;does the local government have ample authority under the Texas Water Qu;;;;;,,Act to enjoin or seek penalties for the

In line with the previous dlecusslons of the powers **of** the local governments, there Is novested right to commit a nuls,ance or to violate a statute grounded upon nuisances, andthe

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I.
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Hon. Crlss. Cole Opinion No. M-190- Page 6

only effect of a permit from the Texas Water Quality Board would be to protect the Permittee-from "statutory :pollutlon". If, a nulsance In fact exists, the local government could take.advantage of, Its powers of Injunction orcivil penalties. under.the',Act.~ In':thls connection It Is well to rememberthat one 1ocaI'government maynot sue a governmental agency. TheState of Texas can bring such's suit anda local government could then Intervene.


## a. Your Inquiry' concernlng,lnjunctlon andpenalties and powers reads:

"If a local government makes'an Inspection under Section 13(B) of the Clean Air Act of 1967, and discovers that emissions from a source donot meet the requirements set by the Texas Air Control Hoardor that a person Is not In compliance with anorder, rule, OCR regulati;on of the Texas Air Control Hoard, does the local government have ample authority under the Texas Air Control Act to enjoin or seek penalties for the action?" Therules and regulations of the Texas Air Control Hoard, which are reasonable andmadeIn conformity with the statutory authority therein given, maybe a source of violation which a local government' could enforce by seeking Injunction or civil penalt,les for violation of the rule, re ulatlon or ordeerof the Air Control Hoard. Sections L3(B):and D) f Clean Alr Act, state that this maybe done. 9.

YouInquire further as follows: .'

"Under the Clean Air Act of Texas, 1967, does a local government have the authority to enforce the provisions of Section 12of the Act against a source that Is located outside the territorial jurisdiction of the local government but Is not causing a condition of air pollution Inside the territorial jurisdiction of the local government?" Suit for statutory air pollution must be for "emission" of~the alr pollutant, andIf the emission occurs outside of the territorial area of the local government and does not cause hurt or injury within Its boundaries or jurisdiction, no suit can be brought

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Opinion No. M-190 - Page 7

for statutory air pollution. This opinion does not pass upon any causes of action which Section 14preserves. 10. Youask, "Under the TexasWater Quality Act of 1967, does a local government have the authority to enforce the provisions of Sections 14and 15of the Act against a person located outside the territorial jurisdiction of the local government but whose activities are causing a condition of pollution inside the territorial jurisdiction of the local government?" Suit for statutory water pollutlon'under the Texas Water Quality Act Is to be brought under Section 14at the place where the water pollutant Is thrown, drained, etc. Into the stream.~ If such a point on a stream Is outslde the territorial jurisdiction of the local government, and hurt or Injury is caused within the territorial jurisdiction of the local government, suit can be brought where the pollutant is being put Into the stream. There maybe additional jurisdiction by the local government to bring a suit elsewhere under Section 15of the Texas Water Quality Act. Harrlngton v. State, 363 S.W.2d 32l,'(Tex.Clv.App., 1963, error ref. n.r.e. ; Mitchell v. State, 371 S.W.2d 799, (Tex.Clv.App., 1963; error diem. e 11.

Wewill'now consider your last two questions together: 

### ia) "Does Section 16(c) of the Texas Water Quality Act require that a local government adopt a separate resolution authorizing each enforcement $&fan that it takes under the Act; or maythe local government adopt one general resolution (containing appropriate guidelines) that authorizes l.ts appropriate officials to take enforcement action under the Texas Water Quality Act as the need arises?" 

### (b) I’-; Sectlon 13(D) of the Clean Alr Act of

s require that a local government adopt a separate resolution authorlzlng each enforcement action that it takes under the Act; or maythe..?ccal government adopt one generalHon. ,Crlss Cole

Opinion No. M-190 - Page 8

,,.
5.

Z' resolution (containing approprlate.gulde- ,llnee) that authorizes .its appropriate .' offlclals to take'enforcement action ,under' the Texas Clean Air Act as the.need arlses?" ,' 'Under both the',~neaily Identical provisions ~of.'the two sta- ,tutei? relating to water and air pollution, the Legislature speaks of a "suit" being brought "upon formal resolution of,%ts.govern$ng body", andthe word !!sult" Is used In the singularwhich might mean that a formalH;;E;;;tlon l%needed for each suit brought bya local' 7overnment. Section 2.02(b) of Article 5429b72, V.C.S. TheCode Construct&Act),, provides that the singular Ineludes the plural. Wethink the remedial and procedural statute does not speclSlcally require a formal resolution for the brIngIn& of each suit. Futhermore, If this statute IS subject to ,constructlonr must be liberally construed, andweare not at liberty to read such a restriction Into the statute. Thediscretion In~suchcases'is to be left to the local governing body. It would thus appear that a general authorization for suits under the Texas Water Quality Act or Texas Ali?Control Act of.1967 Is sufficient. SUMMARY Alocal government mayInstitute 'suits 5 without the Texas Air Control Board approval or Texas,Water Qua$lty Board approval under the provisions of Article 

### 4477-5; V.C.S., or Article 7621d-1, V.C.S.; the Water or'Alr Eoard~ must be joined a8a th$rd party plaintiff or ,defendant under Tex. Rules Clv. Proc. Rule 39.~

Prepared by Roger Tyler Assistant Attorney General ry truly yours, 5

i!F?%i% orney General of Texas

APPROVED: ‘I OPINIONCOMMITTEE Hawthorne Phlllios. Chairman Kerns Taylor, Co%i&man John Grace John Banks Robert Flowers 'j ,, Dyer Moore, Jr. STAFFLEGAL

ASSISTANT: * A. J. Carubbl) Jr.

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