AUSTXN, ?kXAR 78711 

Honorable Cries Cole 

Chairman, State Committee 

for Study of Lend Uee and 

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 government obtain Ttxac lair Control 

Board approval before It may 

institute a civil cult for 

penalties or for ~lnjunctlve 

rellef under Section 12 of 

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. 4 f: 77-5, V.C.S.) and the 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. You pose thirteen qutatlons which by nature of their 

Importance muet be 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 

may lnstltutt a civil cult for penaltlee (or an 

Injunctive proceeding) under Section 12 of the 

Clean Air Act of Ttxae, 19677" 
Hon. Crlss Cole 

Opinion No, M-190 - Page 2 

It is our opinion that a local govkmment may act ,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~er F& the,‘board, :lai.lbcal\, “’ 

government, tiporilformal. rfisolutlon of’ its govei+ 

.: lng body, may enforce through Its own attorney ~~ 

the provisions of Section 12 of this Act. However, a local,government may not bring an action. 

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 and must 

be a necessary party to the local government Is 

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. The requirement for joinder of the Texas 

Air Control Board Is plain. and the Attorney General or Board 

must be aerved wlth,pEocesk as a necessary -arty. Coffee v. 

Wllllam Marsh Rice Universlt 

xn addition to the above act 

403 S.W.2d 3 fI 0 (Tex.‘Sup.66). 

ns, it Is our opinion that any 

other suits brought under Section 14 of,the Act desianed-to pursue all common law remedies available to abate the pollution-or 

other nuisances or for!damages therefor, would require the 

joinder of the T&as Air Ccintro$ ,Eoard as 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 may Institute ,a clvll suits for penalties 

under Sections 14 and 15 or an InJurictlve proceeding under Section 

Act of lg67?” 

16(e) of,the Texas Water Quality 

The provisions of+the’ sections. of the Tixas Water Quality 

Act of 1967 are almost ld’triticalj~~n’substance~~o those discussed 

above In Question 1 ,&nd ti$&tianie”answer ,would apply thereto.’ 

Under the provlsions.;of ‘S%tion, l'5j~,:.Uhq Texas Water Quality’~ Board 

must be JoXned ‘5s a ,,$tiird~.pa‘rty pl@ilitiff ‘or defendant In any 

suit by ,a, BoaI. goytr?ent, ‘for injunc,t,&ve. relief, c,lvll penalties, 

or oommoh~:nuPsafices .‘~ :, 

~,;904; :. “,: 
Hon. Crlss Cole 

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 and must, 

be a necessary party,to the local government's 

suit" as used In Section 13(D) of the Clean Air 

Act and the phrase "The Board created by ttiis 

act Is authorized to be and must be a necessary 

and Indispensable 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 and the Texas Cl&an Air 

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 and must be joined as a third party plaintiff 

or defendant, Tex. Rules Clv. Proc. Rule 39; Texas Electric 

Service Company v,'Faudrte, 410 S.W.2d '477, (Tex.Clv.App., 

'1967, error ref.). 

We will 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? 

-905- 
Hon. Crlss Cole 

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 ,the manner, provided by, ‘law, SaSlure,.;,?:?~ ,(refus&l, OS, the 

State Board ,tti, further Participate “lti.‘tt$;,actl~n iia “a third ” 

party plaintiff or deferidint, Iwould liot 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. 

The next Inquiry Is quoted as follows: 

“Section 12 OS Chapter 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 any way affect the 

right of any person to puraue,all legal and, 

equitable remedies available to abate pollution and other nuisances or recover damages 

therefrom or both.” Section 20 of the Texas 

Water Quality Act of 1967 ,provldes, ‘This. Act 

shall not In any way affect,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 

23 of the Texas Water Quality Aat of 1967, In 

part, provldea ‘To the extent that a general, 

local, or apeclal l&w may be 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.’ 

What effect, if any, do the 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 and 23, Artgcle 7621d-1, do not affedt the 

authority of a city or county to abate pollution as a c,ovon 

law public nuisance. The Texaa 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 

-906- 
Hon. Crlss Cole 

Oplnlon No. M-190 - Page 5 

cases, particularly where then basis 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 8 the right to bring private 

nuleance cases apart from the operation of the Act. 

6. 

~Your next question we.dlspose of asks for statutory construction:,. 

"When construed together, what effect have Sections 

14 and 15 of the Clean Air Act of Texas had upon the 

nuisance-abatement and ordinance-making power of 

local governments In the matter of air pollution? 

Do Sections 14 and 15 have any effect on the use 

of Article 695, Vernon's Texas Penal Code?" 

: 

It I& 'our opinion that Sections 14 and 15,of the Clean Air 

Act of Texas a&merely a statutory cumulation of rights that have 

not been superseded by the statutes. The real question In regard 

to validity of local ordinances as to air pollution rests with the 

determination under Section 15 as 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. 

You next ask: : 

"If a local government making an 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 who possesses 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 no vested right to commit a nuls,ance or to violate a statute grounded upon nuisances, and the 

-907- 

I 
. 

. 

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 may not 

sue a governmental agency. The State of Texas can bring such's 

suit and a local government could then Intervene. 

a. 

Your Inquiry' concernlng,lnjunctlon and penalties 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 do not 

meet the requirements set by the Texas Air Control Hoard or that a person Is not In compliance 

with an order, 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?" 

The rules and regulations of the Texas Air Control Hoard, 

which are reasonable and made In conformity with the statutory 

authority therein given, may be 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 ordeer of the 

Air Control Hoard. Sections L3(B):and f D) Clean Alr Act, state 

that this may be done. 

9. 

You Inquire further as follows: 

.' 

"Under the Clean Air Act of Texas, 1967, does a 

local government have the authority to enforce 

the provisions of Section 12 of 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, and If 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 

-908- 
Hon. Crlss Cole 

Opinion No. M-190 - Page 7 

for statutory air pollution. This opinion does not pass upon any 

causes of action which Section 14 preserves. 

10. 

You ask, 

"Under the TexasWater Quality Act of 1967, does 

a local government have the authority to enforce 

the provisions of Sections 14 and 15 of 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 14 at 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 

may be additional jurisdiction by the local government to bring 

a suit elsewhere under Section 15 of 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. 

We will'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 

may the 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 may the..?ccal government adopt one general 
Hon. ,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", and the word !!sult" Is used In the singularwhich might mean 

that a formalH;;E;;;tlon l%needed for each suit brought by a local' 

7 

overnment. Section 2.02(b) of Article 5429b72, V.C.S. 

The Code Construct&Act),, provides that the singular Ineludes 

the plural. We think 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, and we are not at liberty to read such 

a restriction Into the statute. The discretion In ~such cases'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 

A local government may Institute '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 a8 a 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 

OPINION COMMITTEE 

Hawthorne Phlllios. Chairman 

Kerns Taylor, Co%i&man 

John Grace 

John Banks 

Robert Flowers 'j ,, 

Dyer Moore, Jr. 

STAFF LEGAL ASSISTANT: * 

A. J. Carubbl) Jr. 

- 910 -