                       AUSTXN,   ?kXAR      78711




Honorable Cries Cole                     Opinion    No. M-190
Chairman, State Committee
for Study of Lend Uee and                RI?:   Whether Sec. 13(D) of the
Environmental Control,                           Clean Air Act of Texas
State Senate                                     (Chapter 727, Actc of the
Auetln, Texae                                   60th Legielature,     R.S. 1967)
                                                'requlrec that a local govern-
                                                ment obtain Ttxac lair Control
                                                Board approval before It may
                                                institute    a civil  cult for
                                                penalties    or for ~lnjunctlve
                                                rellef    under Section 12 of
                                                said Act, and related ques-
                                                tlone.

Dear Sir:

         Your request for an opinion from thle office    concern-
ing the power of local govtrnmente under the Clean Air Act of
Texas, 1967, (Cha ter 727, Acta of the 60th Legislature,      R.S.,
Page 1941; Art. 4f:77-5, V.C.S.)   and the Texas Water Quality Act
of 1967, (Chapter 313; Acts of tht 60th Legislature,     R.S., Page
745; Atit. 7621d-1, V.C.S.),  relate to almost identical   provl-
slahs In the two laws contiernlng the power of local governments
to act.   You pose thirteen  qutatlons which by nature of their
Importance muet be repeated herein.
                                 1.
       "Does Section 13(D) of the Clean Air Act of Texae,
        1967, require that a local government gain the
        approval of the 'Texas Air Control Board before It
        may lnstltutt    a civil  cult for penaltlee  (or an
        Injunctive    proceeding)  under Section 12 of the
        Clean Air Act of Ttxae, 19677"
Hon. Crlss Cole
Opinion No, M-190 - Page 2

           It is our opinion that a local govkmment may act ,ln-
  dependently of the Texas Air Control Board in exerclslng~lta
  powers under Section 13(D): of, the, ,,Clean#Air Act, ofY,:~T~x~&,~.i
                                                                  ,;, This,,,,,,,
  Sectibn prov$des: as, follows;
          “(D)    In’ the s’ame;:k&i~er F& the,‘board, :lai.lbcal\,        “’
           government, tiporilformal. rfisolutlon    of’ its govei+
           lng body, may enforce through Its own attorney            .:
                                                                    ~~
           the provisions     of Section 12 of this Act.       How-
           ever, a local,government       may not bring an action.
           against a state agency~or department, another
           local government or any other political          sub-
           division    of the state for the assessment of.the
           penalty specified      In Section 12. In any suit
           Instituted    by a local government under this sub-
           section,    the boards-is authorized to be and must
           be a necessary party to the local government Is
           suit.”
           It Is obvious from the above statute that Section 12
  cover‘8 not only penalty acts for civil   penalties   but Injunctive
  proceedings  as well.   The requirement for joinder of the Texas
  Air Control Board Is plain. and the Attorney General or Board
  must be aerved wlth,pEocesk as a necessary -arty.        Coffee v.
  Wllllam Marsh Rice Universlt      403 S.W.2d 3 fI0 (Tex.‘Sup.66).
  xn addition to the above act     ns, it Is our opinion that any
  other suits brought under Section 14 of,the Act desianed-to        pur-
  sue all common law remedies available    to abate the pollution-or
  other nuisances or for!damages therefor,    would require the
  joinder of the T&as Air Ccintro$ ,Eoard as a third party plaintiff
  br defendant under Tex. Rules Clv. Proc., Rule 39.
                                      2.
          ,“DcSectlons~. 15(a) (2) and 16(g) of the Texas Water
            Quality Act of 1967,require     that a local government
            gain the approval of the Texas Water Quality Board
            before it may Institute   ,a clvll  suits for penalties
            under Sections   14 and 15 or an InJurictlve proceed-
            ing under Section 16(e) of,the     Texas Water Quality
            Act of lg67?”
           The provisions    of+the’ sections. of the Tixas Water Quality
  Act of 1967 are almost ld’triticalj~~n’substance~~o         those discussed
  above In Question 1 ,&nd ti$&tianie”answer ,would apply thereto.’
  Under the provlsions.;of    ‘S%tion, l'5j~,:.UhqTexas Water Quality’~ Board
  must be JoXned ‘5s a ,,$tiird~.pa‘rty pl@ilitiff   ‘or defendant In any
  suit by ,a, BoaI. goytr?ent,    ‘for injunc,t,&ve. relief,   c,lvll penalties,
  or oommoh~:nuPsafices.‘~ :,


                                  ~,;904; :.    “,:
Hon. Crlss Cole
Opinion No. M-190 - Page 3



          "Under the Texas :R&es 'ofi',,C.vlll:jProOedure's   'IS  "     $
           there a~,dlfferellce:;in.:,legal.'efftct'  b&tweeA'?he ',~,
           DhFaab  "The'Board'i&~autho&ztd~to         be and must,
           be a necessary party,to         the local government's
           suit" as used In Section 13(D) of the Clean Air
           Act and the phrase "The Board created by ttiis
           act Is authorized to be and must be a necessary
           and Indispensable      party to any suit bcought by
           a local government under this section , as used
           In Sections 15(a) i2) and 16(g) of the Texas
           Water Quality ect?
            Although there,ls  a legal difference      In "necessary"
   parties and "Indispensable"    parties,    It Is our opinion,   after
   examining the Texas Water Quality Act and the Texas Cl&an Air
   Act, that In each suit brought by a local       government, such as
   a city,  county or water dlstrlct,      the appropriate  Board,
   whether It be the Texas Air Control Board (for air pollution)
   or the Texas Water Quality Board (for water pollution),         Is
 : Indispensable   and must be joined as a third party plaintiff
   or defendant, Tex. Rules Clv. Proc. Rule 39; Texas Electric
   Service Company v,'Faudrte,    410 S.W.2d '477, (Tex.Clv.App.,
   '1967, error ref.).



           We will    consider   the next two questions    together:
           “(.a)   "If the Texas Water Quality Eoard were    olned
                    in a suit under Section 15(a) (2) or 1 (g)
                    of the Texas Water Quality Act, would the
                    BOardIs refusal to participate   In the action
                    as a party plaintiff   prevent the local govern-
                    ment that filed the suit from prosecuting    the
                    action to Its conclusion?"

            (b)    "If the Texas Air Control Board were joined
                    In a suit under Section 13(D) of the Clean
                    Air Act of Texas, would the Eoard's refusal
                    to participate    In the action .as a party
                    plaintiff   prohibit  the local government
                    that file&the     suit from Rrosecutlng  the
                    action to Its conclusion?




                                   -905-
Hon. Crlss Cole
Opinion No. M-190 - Page 4

                                                                                        ,.

           ‘hit is our: opinion that once the appropriati            State         ~’
  Board or the AttoGey,,Gene,ral      have been served ‘.wlth citation
  in ,the manner, provided by, ‘law, SaSlure,.;,?:?~,(refus&l, OS, the
  State Board ,tti, further Participate    “lti.‘tt$;,actl~n    iia “a third   ”
  party plaintiff    or deferidint, Iwould liot pr’event the’ Court
  from proceeding in the case, or the dppellate              dourts from
  exercising    any appeal jurisdiction     therein.       CoSfe,e v.
  William Rice University,      aupra.

                                        5.
            The next Inquiry      Is quoted as follows:
           “Section 12 OS Chapter 42, Acts of the 57th
            Legislature,    First Called Session,       1961,
            (Article   7621d,, Vernonla Texas Civil Statutes -
            repealed by the,60th Leglalature)         providea
            “This Act shall not In any way affect          the
            right of any person to puraue,all         legal and,
            equitable    remedies available     to abate pollu-
            tion and other nuisances or recover damages
            therefrom or both.”       Section 20 of the Texas
            Water Quality Act of 1967 ,provldes,         ‘This. Act
            shall not In any way affect,the        right OS .any
            private corporation      or Individual    to pursue
            all legal and equitable       remedies to abate a       .
            condition    of pollution    or other nuisances or
            recover damages therefrom,        or both,’    Section
            23 of the Texas Water Quality Aat of 1967, In
            part, provldea ‘To the extent that a general,
            local,   or apeclal l&w may be oonstrued to give
            local governments, aa defined In this act, the
            authority    to set and enforce water quality
            criteria   other than those adopted by the Texas
            Water Quality Board that law Is repealed.’
            What effect,    if any, do the quoted provisions
            of the Texas Water Quality Act cif 1967 have on
            the authorlty     of a city or county to prosecute
            a nuisance suit - particularly        under the pro-
            visions of Article      695, Vernon’s Texas Penal
            Code? Ia the effect       different   than the effect
            of the quoted provision       from Article    7621d?”
            Sections 20 and 23, Artgcle 7621d-1, do not affedt the
  authority   of a city or county to abate pollution as a c,ovon
   law public nuisance.   The Texaa Water Quality Act of 1967 la
  not the aole remedy to abate pc?llution as a public nulaance,
  ,nor does It cover the entire field of nuisance In pollution


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Hon. Crlss Cole
Oplnlon No. M-190 - Page 5


cases, particularly   where then basis of complaint may be some-
thing else, such as health hazards, which Is the purpose of
Article  695, Verndnjs Penal Code, to prohibit.     Section 20,
Article .7621d-1, simply preserve 8 the right to bring private
nuleance cases apart from the operation of the Act.

                                             6.
               ~Your next question       we.dlspose   of asks for   statutory   con-
struction:,.
               "When construed together,   what effect   have Sections
                14 and 15 of the Clean Air Act of Texas had upon the
                nuisance-abatement   and ordinance-making   power of
                local governments In the matter of air pollution?
                Do Sections 14 and 15 have any effect     on the use
                of Article   695, Vernon's Texas Penal Code?"
                                                                   :
            It I& 'our opinion that Sections 14 and 15,of the Clean Air
Act of Texas a&merely      a statutory cumulation of rights that have
not been superseded by the statutes.      The real question In regard
to validity   of local ordinances as to air pollution    rests with the
determination   under Section 15 as to whether such ordinances are in
fact consistent    with the provisions  of any statute or rules, regu-
lations   or orders of the Texas Air Control Board.

                                             7.
               You next ask:         :
               "If a local government making an Inspection      under
                Section 16(a) of the Texas Water Quality Act dls-
                covers either (1) that a person or another local
                government discharging    effluent  Into the public
                waters located In the areas over which the local
                government has jurlsdlctlon     has not obtained a per-
                mit for such a disc,harge;. or (2) that a person or
                another local government who possesses a permit to
                discharge Into the public waters are making dls-
                charges that are not In compliance with the re-
                quirement@ of the permlt;does      the local govern-
                ment have ample authority     under the Texas Water
                Qu;;;;;,,Act to enjoin or seek penalties     for the

           In line with the previous dlecusslons  of the powers of
the local governments, there Is no vested right to commit a nul-
s,ance or to violate a statute grounded upon nuisances,  and the

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                                              I
  .                                                            .



Hon. Crlss. Cole
Opinion No. M-190 - Page 6


only effect  of a permit from the Texas Water Quality Board would
be to protect the Permittee-from    "statutory  :pollutlon".     If, a nul-
sance In fact exists,   the local government could take. advantage of,
Its powers of Injunction   orcivil   penalties. under.the',Act.~     In':thls
connection It Is well to rememberthat      one 1ocaI'government      may not
sue a governmental agency.     The State of Texas can bring such's
suit and a local government could then Intervene.
                                       a.
          Your Inquiry'    concernlng,lnjunctlon    and penalties    and
powers reads:
          "If a local government makes'an Inspection    under
           Section 13(B) of the Clean Air Act of 1967, and
           discovers  that emissions from a source do not
           meet the requirements set by the Texas Air Con-
           trol Hoard or that a person Is not In compliance
           with an order, rule, OCRregulati;on of the Texas
           Air Control Hoard, does the local    government
           have ample authority under the Texas Air Control
           Act to enjoin or seek penalties   for the action?"
           The rules and regulations     of the Texas Air Control Hoard,
which are reasonable and made In conformity with the statutory
authority  therein given, may be a source of violation     which a
local government' could enforce by seeking Injunction     or civil
penalt,les for violation    of the rule, re ulatlon or ordeer of the
Air Control Hoard.     Sections L3(B):and f D) Clean Alr Act, state
that this may be done.

                                       9.                     .'
           You Inquire    further    as follows:
          "Under the Clean Air Act of Texas, 1967, does a
           local government have the authority         to enforce
           the provisions     of Section 12 of the Act against
           a source that Is located outside the territorial
           jurisdiction    of the local government but Is not
           causing a condition       of air pollution   Inside the
           territorial    jurisdiction     of the local govern-
           ment?"
            Suit for statutory   air pollution  must be for "emission"
of~the alr pollutant,    and  If the emission  occurs  outside of the
territorial   area of the local government and does not cause hurt or
injury within Its boundaries or jurisdiction,       no suit can be brought


                                    -908-
Hon. Crlss Cole
Opinion No. M-190        - Page 7


for statutory  air pollution.  This opinion does not pass upon any
causes of action which Section 14 preserves.
                                       10.
            You ask,
           "Under the TexasWater Quality Act of 1967, does
            a local government have the authority     to enforce
            the provisions   of Sections 14 and 15 of the Act
            against a person located outside the territorial
            jurisdiction   of the local government but whose
            activities   are causing a condition   of pollution
            inside the territorial    jurisdiction  of the local
            government?"
            Suit for statutory      water pollutlon'under  the Texas Water
Quality Act Is to be brought under Section 14 at the place where
the water pollutant      Is thrown, drained, etc. Into the stream.~ If
such a point on a stream Is outslde the territorial           jurisdiction
of the local government, and hurt or Injury is caused within the
territorial   jurisdiction      of the local government, suit can be
brought where the pollutant        is being put Into the stream.        There
may be additional     jurisdiction    by the local government     to bring
a suit elsewhere under Section 15 of the Texas Water Quality Act.
Harrlngton v. State, 363 S.W.2d 32l,'(Tex.Clv.App.,           1963, error
ref. n.r.e.   ; Mitchell     v. State, 371 S.W.2d 799, (Tex.Clv.App.,         1963;
error diem. e
                                       11.
            We will'now     consider   your last   two questions   together:

            ia)   "Does Section 16(c) of the Texas Water Quality
                   Act require that a local government adopt
                   a separate resolution     authorizing    each enforce-
                   ment $&fan that it takes under the Act; or
                   may the local government adopt one general re-
                   solution  (containing    appropriate   guidelines)
                   that authorizes    l.ts appropriate   officials    to
                   take enforcement action under the Texas Water
                   Quality Act as the need arises?"

            (b)   I’-;   Sectlon 13(D) of the Clean Alr Act of
                        s require that a local government   adopt
                   a separate resolution    authorlzlng each en-
                   forcement action that it takes under the Act;
                   or may the..?ccal  government adopt one general
      Hon. ,Crlss Cole
      Opinion No. M-190      - Page 8
,,.


5.
                         resolution    (containing  approprlate.gulde-
                        ,llnee)   that authorizes .its appropriate                 .'
                        offlclals    to take'enforcement    action ,under'
                         the Texas Clean Air Act as the.need arlses?"
                 ,' 'Under both the',~neaily Identical    provisions ~of.'the two sta-
      ,tutei? relating    to water and air pollution,       the Legislature    speaks
       of a "suit" being brought "upon formal resolution            of ,%ts.govern$ng
       body", and the word !!sult" Is used In the singularwhich              might mean
       that a formalH;;E;;;tlon       l%needed for each suit brought by a local'
         overnment.                Section 2.02(b)   of Article    5429b72, V.C.S.
Z'     7 The Code Construct&Act),,         provides that the singular Ineludes
       the plural.      We think the remedial and procedural statute does not
       speclSlcally     require a formal resolution      for the brIngIn& of each
       suit.    Futhermore, If this statute IS subject to ,constructlonr
       must be liberally      construed,   and we are not at liberty      to read such
       a restriction     Into the statute.      The discretion    In ~such cases'is   to
       be left to the local governing body.          It would thus appear that a
       general authorization       for suits under the Texas Water Quality Act
       or Texas Ali? Control Act of.1967 Is sufficient.
                                         SUMMARY
                         A local government may Institute   'suits    5
                   without the Texas Air Control Board approval
                   or Texas,Water Qua$lty Board approval under
                   the provisions   of Article 4477-5; V.C.S.,     or
                   Article 7621d-1,   V.C.S.; the Water or'Alr Eoard~
                   must be joined a8 a th$rd party plaintiff       or
                  ,defendant under Tex. Rules Clv. Proc. Rule 39.~

                                                     ry truly   yours,        5


                                                           i!F?%i%
                                                       orney General of Texas
      Prepared by Roger Tyler
      Assistant Attorney General
      APPROVED: ‘I
      OPINION COMMITTEE
      Hawthorne Phlllios. Chairman
      Kerns Taylor, Co%i&man
      John Grace
      John Banks
      Robert Flowers                                                     'j   ,,
      Dyer Moore, Jr.
      STAFF LEGALASSISTANT:          *
      A. J. Carubbl) Jr.

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