### THE ATRBRNET~T GENERAL, OF %-EXAS

December 17, 1968

Honorable Cri8s Cole, Chairman, Committee for the Study of Land Use and Environmental Control, Senate Chamber, Capitol Station Austin, Texae 78711 Opinion No. M-323
Re: Whether Article 695, Vernon's Penal Code of Texas, operatesto make air and water pollution a penal offense, and reDear Senator Cole: lated questions.

On behalf of the Committee for the Study of Land Use and Environmental Control,you have requested our opinion on the followingquestions:

1. Does Article 695, Penal Code of Texas, operate to make air and water pollution a penal offense?
2. Is there currently any other statute which would make the pollution of the air or water In the state a penal offense?
3. Does either proposedHouse Bill No. 67 or proposedHouse Bill No. 69 define such a crime?
4. Assuming a statutemaking pollutiona crime, is Its constitutionalityaffected by the exceptions therein relative to cottongins or similarprovisions? Article 695, Vernon's Penal Code, states:

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vwhoever shall carry on any trade, business or occupation injurious to the health of those who reside In the vicinity,or suffe r any substancewhich has that effect to remain on premises In his possession, shall be fined not less than ten nor more than one hundred dollars. offense." Each day is a separate
AlthoughArticle 695 does not specificallydefine air and water pollution as criminaloffenses, several Texas Court decisionshave indicated that personswho carry on a trade or occupationwhich causes air or water pollution Injurious to the health of persons residing In the vicinity are in vlolatlon of Article 695 and subject to a fine. In Moore v. State, 81 Tex.Crlm. 302, 194 S.W. 1112 (1917),the prosecution for operatin

% a slaughterhousewas upheld as a violation of Article 95. The evidence showed that the smell and odor and pollutionof an adjacent bayou resulting from the slaughter operationswas Injurious to the health of thoee residing In the vicinity and constituteda violationpunishable by fine. See also Fielder v. State, 150 Tex.Crlm. 1 (1947). c 198 S.W.2d

ameron v. State, 389 S.W.2d 471 1&ex.Crim. 5 6 1965 3. Directly answering your first questionwe are of the opinion that Article 695 does operate to make air pollution and water pollutiona penal offense when such'pollutlonresulting from's business Is Injurious to the health of those who reside in the vicinity. However, the State does not have to show that the health of any person living in the vicinitywas injuriouslyaffected, rather it need show only that the pollution from the operation of the business Is such as would be injurious to health. Tex.Crlm. 310, 180 S.W.2d k64(1944). McNeese v. State, 147

In answer to question two regarding other statutes which would make the pollution of air or water in Texas a penal offense, there is only one statutenaming pollution as a penal offense and It relatesmerely to water pcllutlon. Article 

### 862,

Vernon's Petal Code,makes unlawful, among other things, for a person to
....washor bathe In or in any way pollute the waters of any lake or pond, or stream...."within the public grounds of Texas. The term "publicgrounds", as used In Article 862, Includes all the grounds owned by the State. The penalty for a violationof this provision Is not less than five nor more than one hundred dollars. Both Article 

### 7577, Vernon's Civil Statutes and Article 698b, Vernan's Penal Code,making unlawfbl the pollutingof certain bodies of water were repealed .in1961.

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Hon. CriSS **Cole,** page 3(M-323)

Question three of your request asks whether either of the proposed bills Includedwith your letter define air pollution or water pollution as a crime. The opinion of this office is that neither of the proposed bills defines air or water pollution as a crime. ProposedHouse Bill No. 67, amending Article 19, Vernon's Penal Code,was written for the purpose of Includingprivate cor$oritions (exctptcotton gins) within the definition of 'person , any person , etc. in Article 19, so that a corporationwould not be Immune from the prosecution of criminal offenses relating to air and water pollution. ProposedHouse Bill No. 69 was written for the purpose of creatingprocedureswhereby **courts** would obtain jurisdiction **over** corporationsand treat corporationsas natural persons when they violate a criminal statute. Apparently these bills were proposed as a result of Texas Court decisionswhich state that there Is no procedure in Texas whereby a corporationas suchmay be Indicted or tried for violating a criminal statute. Co. v. State, 

### 84Tex.Crim. 459, Internattzional

Rook & Pub. 2( iTex. Grim. 202, 

### 260S.W. 856.(1924 33S.W. 526 v. State, 9' V. Stauffer'ChemicalCo., 

### 348s.w.2d 

### 274 error ref. n.r.e.).

The fourth question in your request asks whether a statute defining such a crime would be constitutionalIf It excepted from its prohibitionspollution resulting from the operations of cotton gins. Specifically,would the excepting of cotton gins from prosecutionunder a statutemaking unlawful the polluting of air and water be a denial of equal protection of laws to other industrieswhich would be subject to prosecution for the same offenae? Section

### 3 of Article I of the Constitutionof Texas guarantees to all persons equality of rights. This section guaranteeing equal rights does not forbld the classification of subjects and persons for the purpose of regulatory legislation (1) so long as the classification is based on a real and substantialdifferentatlonbetween the classesor sub- :~~t,m,~~~~T~,'"p:~d~d as compared to those excluded from rovlded that the differentationbears a reasonable Relation to the purposes to be accomplishedby the lenislatlonand (3) onerates eaualls on all within the ciass. Dodgen 

### .-. same 

### (1948). v. Depugio, 146 Tex".

### 538,209 S.W.2d 

### 588, Miller v. Railroad Commission, 12 Tex.Sup.Ct. Jour. 141, (Dec.

### 7,1968, not yet reported in Southwestern Reporter).

Generally, the Legislaturehas the power to make any classificationand exemption s which are not arbitrary and

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unreasonable. Watts v. Mann, 

### 187S.W.2d 917 (Tex.Civ.App. 1945,writ refused). In determiningwhether a classlficatlon or exemption Is arbitrary and unreasonable, the Texas Supreme Court has held that the test is whether there is any basis for the classificationwhich couldhave seemed reasonable to the Legislature formaking such a dlstlnction. San Antonio Retail Grocers v. Lafferty, 156 Tex. 

### 574,297 S.W.2d 

### 813(19571.

In view of the purpose of such legislation,I.e., to protect the health of the public by stopping pollution, there would necessarily have to be a reasonablebasis for distinguishingthe operations of one type of business from the operations of other businesses or the legislationwould be unconstitutional. The determinationof the existenceor absence of any grounds for excepting a particularbusiness rests within the sound discretionof the Legislature. The decision of the Legislature is subject to review by the courts upon allegation that no reasonablebasis exists that would support an exclusionof a particular type business from the penalties imposed by the Act. Such allegation must then be proved by competent evidencebefore theAct would be held to be unconstitutionalby the court. This office cannot and does not attempt to decide these issues of fact which may or may not justify the exclusion of a particularbusiness from the operation of the Act.
SUMMARY Operating a business which results in air or water pollutionmay be a violation of Article 695, V.P.C.;Article 

### 862, V.P.C. relating to water pollution Is the only statute defining pollution as a penal offense; neither proposed House Bill No. 

### 67nor proposedHouse Bill No. 69 defines air pollutionor water pollution as a crime; a reasonablebasismust exist for the exclusionof any particular business from the effect of a penal statute or the statutewill be unconstitutionalas unduly discriminatingagainst the other businesses affected by the statute. The existence or non-existenceof facts warranting exclusion must be determinedby the Legislatureand is subject to review by the courts.
truly yours,

?ii22E=

. rney General of Texas Prepared by CharlesF. Aycock Assistant Attorney General-1588-. ‘

Hon. Criss Cole, Page 5(M-323)

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman Jack Sparks James Swearingen Vince Taylor Bob Flowers Hawthorne Phillips Staff Legal Assistant

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