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 

following questions: 

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 proposed House Bill No. 67 

or proposed House Bill No. 69 define such 

a crime? 

4. Assuming a statute making pollution a 

crime, is Its constitutionality affected 

by the exceptions therein relative to 

cotton gins or similar provisions? 

Article 695, Vernon's Penal Code, states: 

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Hon. Crlss Cole, page 2(M-323) 

vwhoever shall carry on any trade, business 

or occupation injurious to the health of 

those who reside In the vicinity, or suffe r 

any substance which 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 separa te 

Although Article 695 does not specifically define air 

and water pollution as criminal offenses, several Texas Court 

decisions have indicated that persons who carry on a trade or 

occupation which 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 slaughterhouse was upheld as a violation of 

Article 95. The evidence showed that the smell and odor and 

pollution of an adjacent bayou resulting from the slaughter 

operations was Injurious to the health of thoee residing In 

the vicinity and constituted a violation punishable 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 question we are of the 

opinion that Article 695 does operate to make air pollution 

and water pollution a penal offense when such'pollutlon resulting 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 

vicinity was injuriously affected, 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 statute naming pollution 

as a penal offense and It relates merely to water pcllutlon. 

Article 862, Vernon's Petal Code, makes unlawful, among other 

things, for a person to . . ..wash or bathe In or in any way 

pollute the waters of any lake or pond, or stream...." within the public grounds of Texas. The term "public grounds", 

as used In Article 862, Includes all the grounds owned by 

the State. The penalty for a violation of 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 polluting of certain bodies of water were repealed .in 1961. 

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

Question three of your request asks whether either of 

the proposed bills Included with 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. Proposed House Bill No. 67, 

amending Article 19, Vernon's Penal Code, was written for the 

purpose of Including private cor$oritions (exctpt cotton gins) 

within the definition of 'person , any person , etc. in 

Article 19, so that a corporation would not be Immune from 

the prosecution of criminal offenses relating to air and water 

pollution. Proposed House Bill No. 69 was written for the 

purpose of creating procedures whereby courts would obtain 

jurisdiction over corporations and treat corporations as 

natural persons when they violate a criminal statute. Apparently these bills were proposed as a result of Texas Court 

decisions which state that there Is no procedure in Texas 

whereby a corporation as such may be Indicted or tried for 

violating a criminal statute. 

Co. v. State, 84 Tex.Crim. 459, 

Internattzional Rook & Pub. 

2( 

i Tex. Grim. 202, 260 S.W. 856.(1924 

33 S.W. 526 

v. State, 9' 

V. Stauffer'Chemical Co., 348 s.w.2d 274 

error ref. n.r.e.). 

The fourth question in your request asks whether a 

statute defining such a crime would be constitutional If It 

excepted from its prohibitions pollution resulting from the 

operations of cotton gins. Specifically, would the excepting of cotton gins from prosecution under a statute making 

unlawful the polluting of air and water be a denial of equal 

protection of laws to other industries which would be subject to prosecution for the same offenae? 

Section 3 of Article I of the Constitution of 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 substantial differentatlon between the classes or sub- 

:~~t,m,~~~~T~,'"p:~d~d a s compared to those excluded from 

rovlded that the differentation bears 

a reasonable Relation to the purposes to be accomplished by 

the lenislatlon and (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 Legislature has the power to make any 

classification and exemption s which are not arbitrary and 

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Hon. Criss Cole, page 4(M-323) 

unreasonable. Watts v. Mann, 187 S.W.2d 917 (Tex.Civ.App. 

1945, writ refused). In determining whether 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 classification which could have seemed 

reasonable to the Legislature for making 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 reasonable basis for 

distinguishing the operations of one type of business from 

the operations of other businesses or the legislation would 

be unconstitutional. The determination of the existence or 

absence of any grounds for excepting a particular business 

rests within the sound discretion of the Legislature. The 

decision of the Legislature is subject to review by the 

courts upon allegation that no reasonable basis exists that 

would support an exclusion of a particular type business 

from the penalties imposed by the Act. Such allegation 

must then be proved by competent evidence before the Act 

would be held to be unconstitutional by 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 

particular business from the operation of the Act. 

SUMMARY 

Operating a business which results in air or 

water pollution may 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. 67 nor proposed House 

Bill No. 69 defines air pollution or water 

pollution as a crime; a reasonable basis must 

exist for the exclusion of any particular 

business from the effect of a penal statute 

or the statute will be unconstitutional as 

unduly discriminating against the other businesses affected by the statute. The existence 

or non-existence of facts warranting exclusion 

must be determined by the Legislature and is 

subject to review by the courts. 

truly yours, 

?ii22E= . 

rney General of Texas 

Prepared by Charles F. Aycock 

Assistant Attorney General 

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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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