                       AUSTIN.   TEXAS



                  December 23, 1948

Hon. Sam Lee            Opinion No. v-757
County Attorney
Brazoria County         Re:   The sufficiency of the sub-
Angleton, Texas               mitted form of complaint
                              and the necessity of alleg-
                              ing that an act was "know-
                              ingly and willfullyW done
                              to charge a violation of
                              Article 69Sb, V. P. C.
Dear Mr. Lee:
          Your request for an opinion is substantially
as follows:
         "In this county, we have many corpora-
    tions, which from time to time, are charged
    with polluting streams. It has been the cus-
    tom of this office to file on the corporation
    as well as the employee who was in charge of
    the field at the time the pollution occurred.
    I: was felt that filing on the corporation
    would be the most effective way of combating
    this situation.



     and I would like your opinion as to whether
     or not this complaint is sufficient urder
     the existing statute.
          WThis complaint has been attacked from
     time to time, ‘but never in the court of crim-
     inal ap eals, because the same alleges, 'did
     then ani there unlawfully pollute a ublic
     body of surface   water' and did not fnclude
     the words 'Intentionally' or 'knowingly'.



     tentionally' or 'knowingly' or should both
     of them or either of them be used in the com-
     plaint?
Hon. Sam Lee, Page 2   (V-757)


           "Of course, there are many cases in which
     the State cannot prove that a stream was in-
     tentionally or knowingly polluted, but the
     facts developed will show that the water
     course or public body of water was polluted
     because of the negligence of the corporation
     or its employee. IN SUCH CASES, IS IT RECES-
     SARY TO ALLEGE THAT THE DEFENDANT DID TBEN
     AND THERE UNLAWFULLY AND NEGLIGENTLY POLLWlE
     TBE BODY OF SURFACE WATER?
          "My third question is, in negligent cas-
     es, whether or not the word 'negligent' should
     be used in drawing the complaint.
          "In the event that the case is based
     upon negligence, is the within complaint suf-
     ficient or would it be sufficient if the word
     'negligently' was included therein or would
     the various acts of negligence have to be set
     out and then it pled that suoh negligence was
     the proximate cause of the pollution, as in a
     civil case.
          "Is it necessary that in charging a cor-
     poration with the offense of pollution, that
     it be alleged that the corporation committed
     the offense by and through its agents, ser-
     vants or employee, or is the method of plead-
     ing the same as set forth in the enclosed af-
     fidavit sufficient."
           Generally, knowledge must be alleged and
proved where the statute requires the prohibited act to
be done "knowingly" at&knowledge of a fact may be es-
sential to a conviction, although the word "knowingly"
is not used in the Statute creating the offense, where
the language use~dis such as necessarily to imply that
want of knowledge will excuse compliance with a stat-
utc . "gnawingly" as used in an enactment making it an H.
offense knowingly to do a particular thing means that
the act must have been done with the knowledge of the
person charged with the intent to commit the act. The
term is sometimes used as synonymous with "willfully"
although the latter word is of more extensive meaning.
(12 Tex. Jur. p. 262) See Johnson v. State, 275 S. W.
714; State v. West, 10 Tex. 553.
           In the case of Ham v. State, 40 S. W. 2d, 152,
the Court stated as follows:
          "In the count of the indictment upon
Hon. Sam Lee, Page 3   (V-757)


    which the conviction rests, it is charged
    that the accused 'did then and there unlaw-
    fully transport a still for the manufacture
    of intoxicating liquor., The statute ,ae-
    clares that it shall be unlawful to 'know-
    ingly, transport a still for the manufacture
    of intoxicating beverages. The omission of
    the word ,knowingly, is deemed fatal to the
    sufficiency of the indictment. The word
    'knowingly, is one of the essential elements
    of the offense denounced. When the word
    ,knowingly, is an essential element of the
    offense, it is necessary that the indictment
    declare that the criminal act was 'knowingly,
    committed. Such is the .announcementin
    Branoh's Ann. Tex. P. C.~,8@1490-500. The
    cases of State v. Stalls, 37 Tex. 440;~State
    v. Arnold, 39 Tex 75; Tynes v."State, 17
    Tex. App. 127; Morris v. State, 93 Tex. Cr.
    R. 99, 245 S. W. 915, are regarded as direct-
    ly in point. By analogy, those in which the
    indictment has omitted the word 'wilfully,
    are in point, see Johnson v. State, 101 Tex.
    Cr. B. 217, 275 S. W. 714; Moore v. State,
    112 Tex. Cr. R. 414, 16 S. W. (2d) 1089;
    Woolsey v. State,'14 Tex. App. 57; Uecker v.
    State, 4 Tex. App. 234. The word 'unlawful-
    ly, as used in the indictment is not equiva-
    lent to the word ,knowingly, as used in the,
    statute.  See State v. Stalls, supra, and
    other cases cited above. One might be unlaw-
    fully transporting a still for the manufac-
    ture of intoxicating liquor, and yet not
    knowingly doing so. Modica v. State, 105 Tex.
    Cr. R.~39, 285 S. W. 823."
          Article 698b, Vernon's Penal Code, does not
in any manner use the word "knowingly" or "willfully,"
while the Act prior to 6981,container?a statement that
"each day such pollution is knowingly caused or permit-
ted shall cause a separate offense.,, (Art. 698 V.P.C.)
          The form of complaint submitted by you is
comparable to the complaint used in the case of Myers
v. State, 184 s. w. Zd, 924. An examination of the
complaint now on file in the Court of Criminal Appeals,
Austin, Texas, revealed that the words "knowingly, in-
tentionally, willfully and negligently,,were omitted
and that the complaint charged an offense in the manner
set forth in the statute.  It is to be noted that the
Court in the above case in its concluding statement said,
Hon. Sam Lee, Page 4    (V-757)


"The Court properly overruled the attack msde on the    .
complaint.,, The Court concluded that Section 5 of.,
the Pollution Aat needed clarification and this was
done by the 49th Legislature, 1945, in H. B. 278.
          Many oases passed upon by the Court of Crlm-
inal Appeals prior to the opinionrendered in Myers v.
State, supra, were predicated upon Article 698 (re-
pealed) V. P. C., which contained the words, "Each day
such pollution is knowingly caused or permLtted shall
constitute a separate offense." It is our opinion
that this is the distinguishing feature between the
cases rendered under Article 698, V. P. C., and 698b,
v. P. c.;,that is, if the statute contains the words'
nknowinglg and willfully,R then the same must be al-
leged in the complaint charging such offense; but if
the statute is silent as to .suchwords, then there is
no necessity for such allegation.
          For the construction placed upon Article 698
and 698a, (repealed) V:P. C., see Stephenson v. Btate,
167 S. W. 26, 1027; Bell v. State, 99 S. W. 26 940;
Jackson v~.State, 93's. W. 2d 1141.
          By virtue of the foregoing authorities, it is
our opinion that an offense under Article 6,98b,V. P. C.,
need not allege .that the same was "knowingly, willful-
ly or negligently" done, butthe same should be charged
in the language of the statute;  that is, that he did throw,
discharge, or otherwise permit the same to be done, etc.
Further, it is our opinion that'the atta'chedcomplaint is
a valid one, and sufficiently charges an offense wi,thin
the provisions of Artiole 698b, V. P. C.
                       SUMMARY
          In the absence of a provision to such
     effect, there is no necessity for the words
     wwillfully, knowingly, and'negligently" to   '
     be alleged in a complaint to charge anof-
     fense under Article 698b, V. P. C., relative
     to pollution of streams.
                                  Very truly yours,
APPROVE&                    ATTORNEY GENERAL.OF TEXAS



                                   Burnell Waldrep
                                        Assistant
