             THJCATTOIZNEY                      GENERAL

                              OF      TEXAS

                             Ausmiw     ia. TEXAS



                             November 16, 1959


Mr. R. L. Lattimore                       Opinion No. WW-727
Criminal District Attorney
Hidalgo county                            Re:   Legality of fiberglass muff-
gdinburg, Texas                                 lers manufactured to meet
                                                all requirements of law.
Dear Mr. Lattimore:

          In your recent letter you have requested an opinion from this
office with respect to the "legality of fiberglass mufflers" manufactured
to meet all requirements of law. Section 134, Article 67Old, Vernon's
Civil Statutes, provides as follows:

               "(a) Every motor vehicle shall at all times
          be equipped with a muffler in good working order
          and in constant operation to prevent excessive or
          unusual noise and annoying smoke and no person
          shall use a muffler cut-out, bypass, or similar
          device upon a motor vehicle on a highway.

               "(b) The engine and power mechanism of,every
          motor vehicle shall be so equipped and adjusted as
          to prevent the escape of excessive fumes or smoke".

          Neither this statute nor has any other statute been found which
prescribes the manner of construction of automobile mufflers, nor the
substance from which they are to be made. The statute has been complied
with if the muffler which is installed is "in good working order and in
constant operation to prevent excessive or unusual noise and annoyine
smoke", whether it be made of steel, aluminum, fiberglass or any other
substance.

          As to whether a particular vehicle is equipped with a muffler
which is "in good working order and in constant operation to prevent
excessive or unusual noise and annovina smoke". cannot be answered by this
office, but is a question of fact to be resolved by the trier of the-facts.
See Ex Parte Trafton, 271 S.W.2d 814, and Department of Public Safety vs.
Buck, 256 S.W.2d 642.

          The question of the length of time which a particular muffler
will serve the purpose for which it was manufactured is of no concern. It
is common knowledge that muff.J.ers
                                  differ in the length of time they will
serve their user - even mufflers made by the same manufacturer and of the
same design and material.
,HonorableR. L. Lattimore, Page 2.   (WW-727)



          The Legislature has not attempted to prescribe the quality
of mufflers which must be used - only that they be in "good working order
and in constant operation to prevent excessive or unusual noise and annoy-
ing smoke".

                               SUMMARY

                    Mufflers constructed of fiberglass com-
               ply with the mandates of Section 134, Article
               6701d, Vernon's Civil Statutes, so long as they
               are "in good working order and in constant
               operation to prevent excessive or unusual noise
               and annoying smoke".

                                            Very truly yours,

                                            WILL WILSON
                                            Attorney General of Texas




                                                  hn L Estes
                                                Assistant Attorney General
JLE:aw

APPROVFD:

OPINION COMMPlTEE:

Morgan Nesbitt, Chairman

Bob Rowland
Phocion Park
Bob E. Shannon
Jerry H. Roberts

REVIEWED FORTHE ATTORNEY GENERAL
BY:
    W. V. Geppert
