             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 re-
Dear 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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      vwhoever shall carry on any trade, business
       or occupation injurious to the health of
       those who reside In the vicinity, or suffer
       any substance which has that effect to re-
       main on premises In his possession, shall
       be fined not less than ten nor more than
       one hundred dollars. Each day is a separate
       offense."
       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 vlola-
tlon 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   198 S.W.2d 5 6
(1947). cameron v. State, 389 S.W.2d 471 1&ex.Crim. 19653 .
       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 re-
sulting 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. McNeese v. State, 147
Tex.Crlm. 310, 180 S.W.2d k64(1944).
       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...." with-
in 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 cer-
tain 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 pollu-
tion 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. Appar-
ently 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. Internattzional Rook & Pub.
Co. v. State, 84 Tex.Crim. 459, 2(33 S.W. 526
v. State, 9'i Tex. Grim. 202, 260 S.W. 856.(1924
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 except-
ing 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 sub-
ject 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 legis-
lation (1) so long as the classification is based on a real
and substantial differentatlon between the classes or sub-
:~~t,m,~~~~T~,'"p:~d~da s compared to those excluded from
                    rovlded that the differentation bears
a reasonable Relation to the purposes to be accomplished by
                    .-. onerates eaualls on all within the
the lenislatlon and (3)
same ciass. Dodgen v. Depugio, 146 Tex".538,209 S.W.2d
588, (1948). 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 exemptions 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 classlfica-
tlon 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 dlstlnc-
tion. 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 pro-
       posed 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 busi-
       nesses 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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