              THE       L~TI-CBRNEY                GENERAL

                              OF-XAS

                          AUSTIN, TEXAR 78711
                                    May 20, 1971




Hon. Jane8 L. Slider                     Opinion    No. M-866
Chairman
State Affairs, Committee                Re:   Constitutionality     of
House of Representatives                      H.B. 56, 62nd Leg.,
State Capitol                                 R.S. (Environmental
Austin,  Texae                                Protection     Act of 1971).

Dear Repreaentative       Slider:

      You request   our opinion    on the constitutionality      of
House Bill   56, 62nd Legislature,     Regular Session      1971, the
Environmental   Protection    Act of 1971.    The companion Bill
to it I@ Senate Bill     145.

       In brief,   by this bill,    the Legislature      in Section    2
finds and declares      that each person le entitled        by right to
protect    and preserve   the air,   land, and all natural        reeourcee
of the etate;     that it ie in the public      interest    to provide
each person with “an adequate remedy” to so protect               It “from
pollution,    Impairment,    or deetruction.”

       Section    3 directs     that   the State,  and any etate agency
or any political       subdivision      authorized  to exercise  any
jurisdiction      over or to have       any effect  upon such resources,
shall    do ao in public       truet   so as to protect  and maintain a
quality     environment     for the    citizens.

      ,By Section    >, not only are the Attorney         General,    and
the state agencies      and political     subdivisions     authorized     to
maintain an action      in the district      courts   of the state     “for
declaratory     and equitable    relief”    but also any pereon or
other legal     entity  may do eo against       the state,   the state
agencies,   and political     subdivisions,      or any person or
other legal     entity,   for the protection       of such reeources.

      Under the consistent    express   holdings  of our Supreme
Court, a statute    will not be held unconstitutional         unless
it Is susceptible    of no other construction     than that It
unequivocally    and by Its clear   language plainly      excludes
the right and power of the constitutional        officers     named
to represent   the state in court.      Camp v. Gulf Production

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Rep.   James L. Slider,       page   2,                     (M-866)



           122 Tex. 383 61 S.W.2d 773 (1933);           Ma;;evexT;rell,
%$%%       97 200 S W ‘375 (1918);         Staplee   v. St              1
p,      112 T;x. 61, ‘245 S.W. 639 (1922)           In this connection,
   e court will resolve     any doubt In faior       of constitutionality
and presume a constitutional       Intent    In the leglalative      act,
adapting   that construction     which will uphold the,statute.
Watts v. Mann, 187 S.W.2d 917 (Tex.Clv.App.            1945, error ref.      ;
State v. Shoppers World, Inc.,        380 S.w.2d 107 (Tex.Sup.          1964 :
53 Tex.Jur.2d    169 Statutes,     Sec. 126.       In Watte v. Mann,
supra, It was obs&ved       that our Constitution        is not regarded
eo much as a grant of power but aa a llmltatlon             of power,
and all power not limited       by It Inheres      In the people.
Thue, a legislative      act will be valid when the Constitution
contains   no prohibition    against   it.

      Section  7 of the Bill provides         that it I@ Intended to
be ‘supplementary”     to exlatlng     statutes   and administrative
and regulatory   procedure~e.      Sections 10 of the Bill     contains
the usual eeverabillty     clause.

       The Constitution         declares     in Article     XVI, Section     59,
that the preservation,           conservation,       and development     of the
natural     resources    of the state are rights            an! duties   of the
“public,    ” and provides       In this respect        that    . . . the
Legislature      shall   pass all euch laws as may be appropriate
thereto.    ” With this in mind, may the Legislature                 validly
provide     for a new and additional            etatutory    cause of action
by which the public,           or any member thereof,         may exercise
their    legal   responsibilities         to preserve     the natural    re-
sources     by abating     illegal     pollution?

       We must presume that the proposed      statute,    if passed,
intended    not to take away any conatltutional        power of the
County or District     Attorney   or Attorney  General to represent
the “State” In court.       No language in the Bill requires       an
interpretation    which would take away the constitutional
powers of these officers.

      .It must be recognized       that the authority      to represent
the State at? the sovereign        In actlone    in the courts     on be-
half of the State in Its sovereign           capacity    to enforce   Its
rights    is vested by the constitution        exclusively    In the
atate’s     Attorney    General,  District,   and County Attorney and
the legislature        Is without power to divest      that authority
or to delegate       it to others.     Agey v. American Liberty       Pi=
Line Co., 141 Tex. 379, 172 S.k.2d 972 (1943);              and eee

                                     -4205-
Rep. James L. Slider,      page 3,                         (M-866)

Attorney General Cpinlon No. ~-856 (1971), wherein only the
state as the sovereign may act in bringing     a quo warrant0
action,  represented by its constitutional    officers.     The ctate
16 always a necessary party in such proceedings.        Allen v.
Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928); Staples v. State ex
                    Thus, a private person could not Institute        an
                     of the State where the property right or duty
Involved belon a exclusively    to the state.     Herndon v. Hayton,
28 S.W.2d 885 fTex.Civ.App.    1930, error ref.).
      On the other hand, representation               of the “State” as the
eoverelgn Is not neceaaarily            to be equated in every case with
representation       of the right8 of the public at large.              Our Texas
courts have settled        the law to the effect         that the rights of
Individual     citizens    to enforce rights of the public at large by
actions on behalf of the public to enforce public rights by com-
pelling    compliance with the lawe,are not suite by the State ae
the eovereign entity which require either that the State be a
party   or that these court actions be proeecuted by any of
the State’s      attorneys.     These actions take varloua          forms:        c
mandamus, Injunction,         prosecution,      etc,.   They may be for legal
equitable or declaratory          relief.      They may be prosecuted for
the enforcement of a public duty without ahowing any Interest
peculiar    to the Individual        plaintiffs      as would be neceesary to
enforce private rights.           In McLaughlin v. Smith, 140 S.W. 248
(Tex.Clv.App.       1911, error rer. 1, a mandamus action,           the court said:
              ,f        when the question is one of public
       right, ‘and’the object of the mandamus ie to pro-
       cure the enforcement of a public duty, the people
       ought to be regarded a8 the real party in interest,
       and that the relator,         at whoae instigation       the
       QrOCeeding@ are inetltuted,            need not show that he
       hae any interest,       special    and peculler      to himself,
       in the result,       and that It is sufficient         to show
       that he Is a citizen        and as such interelted        In the
       execution of the laws; . . .‘I (at Q. 251.).
In support of     mandamus actions by members of the public at
large see also     Willey v. Fennell, 269 S.W.2d 407 (Tex.Civ.
AQP. 1954, no     wrltjand Dubose v. Woods, 162 S.W. 3, 5 (Tex.
Clv.App. 1913,     no writ).
      In the case of Andereon v. Houts, 240 S.W. 647 (Tex.
Clv.App. 1922, no writ) certain citizens     of a road district
eued the officers   of the district  and the county judge and
county coxunlseionera and others,   for Injunction  to restrain

                                  -4206-
Rep. JameaL. Slider,     page 4,                        (M-866)


the alleged illegal  expenditure       of the QrOCeed8 of the sale
of  certain bonds of the district.        The court  sustained  the
right of plaintiffs  to maintain       the action.   On thi6 isroe
it said:
            II0 . . It hae    been to0 many times decided
     that a citizen     and   taxpayer may Institute   and
     maintain an action       to restrain an officer,    atate
     or municipal,    from    performing Illegal,   unauthorized,
     and unconatltutlonal       acta, to require further dle-
     cuaelon.     . . .
           I,. . .
           11. . . Thla right does not depend upon . . .
     the situation   or locality of the taxpayer,     This
     right inures to the benefit   of the whole peofllc
     at the suit of any taxpaying   citizen.    . . .
     (at Q. 649.).
       In any event, the progosad Bill can be upheld a8 ,~
constitutional   on still  another baels; In 7 Americen
Jurisprudence   2d 22, Attorney General, Section 17, we find
the following   etatement:
                    it has been held by most of the
     courts’&at     where the queetlon     is one of public
     right, and the object of the mandamue is to pre-
     serve the enforcement      of a public duty, a private
     person may, In behalf of the public,         and without
     showing any indivfdual      or special   Interest   to be
     Becured, become a relator,      and, through the proper
     etate officer,    Institute   the proceeding.”
      In addition, in certain   cacee, where there le a clear
mandatory duty to enforce the vio.lation of the law and
dlecretlon  ik not involved,  it 18 held that
                   where the Attorney General refuses
     to bri.&‘or   consent to the brtnglng    of a suit to
     protect the right% of the public,      a private
     Individual   may Institute  a proceeding    on his
     relation,   in the name of the state.”
     7 A.Jur02d 17, Attorney    General9 Sec. 13.
     The right   of the individual          citizen   to me   to abate

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    Rep.       James L. Slider,   page 5,                        (M-866 )


    pollution    ha@ already    been conferred    by Congrese in the
    Clean Air Amendments of 1970, Public          Law 91-604,   Section
    304, 42 U.S.C.A.,     Sectlone   1857, et .aeq.     The Individual
    la there expreasly      granted standing     to sue,any polluter,
    Including    the United States and any other governmental
    agency without any requirement        of showing special     or
    peculiar    Injury or damage to himself;       and in case of suit
    against    any administrator,    he may bring euit after       giving
    sixty    days notice  of the violation,      and If uncorrected,
    he may base his suit upon failure          to perform any act or
    duty required     by the Clean Air Act.

            Our Supreme Court has recognized               that the legislature
    has the power to grant standing                to sue to bring an action
    against     a public     body or a right of review on behalf               of
    the public      without proof of particular             or pecuniary      damage
    to the person suing.           This requirement         of the common law
    1s not written        into the Constitution           but may be altered
    or abolished       by the Legislature          so as to give standing          to
    sue a person.         See Article       I, V.C.S.;     Scott v. Board of
                      405 S.W.2d 55, 56 (Tex.Sup.             lybb),   upholding      a
    s a u e authorizing
    w                            an individual        taxpayer standing to sue
    for inSunction        to challenge        governmental     action    without
    showin- any particular           damage; Spence v. Fenchler,             107 Tex.
    443, 108 S.W. 597 (19151, upholding a etatute authorizing
    any citizen       the standing      to sue to enjoin         the operation      of
    a bawdyhouse.         In accord,     Downs v. Schmld, 955 S.W.2d 1041
    (Tex.Civ.App.        1936, rev. on other grounds.)              and see 7 Am.
    jur.2d     8, Attorney-Ceneral,           Section   7, and’authoritles         cited,
    holding     that common law duties            and powers may be altered           by
    the Legislature.          Although the above acts involved               a public
    duty which the County or District                 Attorney    wae constltutianaily
    authorized      to discharge      for the state in court,            the Individual
    citizen     was not DreChded          from suing and representing            himself
    a@ part of the public.            See also National          Audubon Society,
    Inc. v. Johnson,         317 F.Supp. 1330, 1335 (S.D,Tex.               1970),
    stating     that while the Society            had no standing       to sue,
     “conservationists        ahould seek a leglelative             enactment which
    would authorize         any citizen       of the etate to bring suit agalnet
    any polluter,        private   or public,        to protect     water resources.v
    The Court asoc  1         e   4t, Texas Law Review 1172, llm
    wherein It Is stated:

                     “Since the citizens     are beneflclaries,    it
               Is only logical  that they should be able to force
               the state to protect    their    rights.    Thus when the

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Rep.    James L. Slider,      page 6                              (M-866)



        etate fails     to protect   navigable water8 from pol-
        lution,   citizens    should be able through judicial
        action  to compel the appropriate      state authority
        to remedy the problems.        When the state itself
        causes pollution,      the state should be eubject     to
        suit D”

       Without statutory        authorization    conferring      a right  of
a private     citizen     to sue, when a public      right    is injured,
only legally       empowered authorfties       may do 80.       San Antonio
Conservation       Society    v. City of San Antonio,       256 S.W.2d
 59    263 (Tex,Civ,Ap~                 error re . ; ational         Audubon
Society,     Ine. v. Johnson,       sipra.    When the?eglslature
creates    a new or addltfonal         cause of action,     it may con-
stitutionally       authorize    the Attorney    Generaland       others  to
prosecute     such a cause.       Smith v. State,      328 S.W.2d 294
(Tex Sup. 1959).

       In many pollution      abatement cases under the Bill,            the
state may have such a substantial            interest    that it will be
a necessary     party to the maintenance         of the action,       and the
Attorney    General or County or District           Attorney,     shall
represent    the state,     such as when the action         of state officials
ie sought to be controlled,          or state actions       are attached,     or
state land is d.nvolved,         National    Audubon Society,       Inc. v.
Johnson,    supra, 1_1
                     Raud v. Terrell,      supra.     While the Bill 3.8
m-on         the question     of procedures      and joinder      of parties,
the existing     procedural     statutes   and Rules of Civil         Qro-
cedure will no doubt control these questione and the courts
will have to decide ,in each case these matters on the issuea
joined    and the facts     presented.     la any event,       the citizen
mey not sue on behalf        of, or as representative          of, the state,
for only the County or District           Attorney or Attorney General
may represent        the state    and control     its   intereats    In a law
suit 1n the dfstrict         court.     Allen    v.   Fisher,    118 Tex.        38,
95 S.W,2d ‘731 (rg28).
        In this     connection,    in suits     authorized      under the Bill,
unless the State ie made a party   to the proceeding,                  it will
not be bound by any udgment rendered in the suit.                          See
Lee v. CalverA,  356 i .W.2d 840 (Tex.Clv.App.  1962,                  error
ref.,    n,r,e.JO
      There is also another conatftutional     problem which
arises by reaso.? of the provlalons    of Section 5(a) of the
Bill,  which fails to refer fn clear language the b88lc

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Rep. James L. Slider,       page 7                            (M-866)


ingredients      or element@ of the causes of action conferred,
nor doea the bill speciflcally             tie in with existing     air
and water pollution        etatutea 80 a6 to incorporate          them by
reference,      as hereinbelow enumerated.         By the atatement In
thia section aa to the nature of particular                conduct, it
could be argued that for a defendant to ahow his conduct
to be valid he muat show that it I@ reasonably required for
the promotion of the public health, safety and welfare.                    If
read literally,        the net effect      of thla section    may well place
a cruahlng burden of proof upon a private              defendant, poaalbly
to the extent of a violation           of the due process clause of th@
Fourteenth Amendment, United States Constitution,                 and of
Article     I, Section 19, Texas Conetltution.            .The absolute
terms uaed to describe the basla for the cauee of action,                    If
literally      applied,   may be such aa to render the Bill
unconatltutionally        vague.    However, to uphold lta validity,
a court may well Interpret           the causes of action described
to be those aa arising from a violation              of theme standards
preacrlbed      by law in other atatutea         when read in par1
materia to this Act, such aa the Texae Water Quality Act,
Article     7621-d-1,    Vernon’s Civil Statutes;        Texas Clean Air
Act,    Article    4477-5, Vernon’s Civil Statutea;          Solid Waate
Mapoeal Act, Article          4477-7, Vernon’s Civil Statutes;
Article     698c, Texae Penal Code, on water pollution;             Article
698d, Texas Penal Code, on air pollution,               etc.   We  call  this
to your attention        in connection uith our conslderqtlon           of
poeslb3e conetltutional          defects,.
       Furthermore, we are concerned with the constitutional
validity   of the caption of the Act, which reads:
              “An Act relating    to suita for declaratory
        and equitable   relief   to protect air, water, and
        natural reaourcea end the public truet therein
        from pollution,    impairment, and dertruction;
        and declaring   an emergency.”
       The above meagre proviaiona     raise a serious queation of
constitutionality     ae to the caption’6    legal sufficiency.
Article    III, Section 35, Conetitution     OS Texas, requires    that
an act contain no subject not expre6aed within the title.
The purpose of this conatituttonal        requirement is to require
full and fair notice be given of the new oubatantive featurec
of the act and to prevent surprise or fraud by meana of the
provisions     of the bills OS which the titles     give no intimation
and which might be overlooked and unintentionally          adopted..   See

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Rep.    James     L. Slider,       page 0                  (M-866)



Kelly    v.     WillZame        346 S.W.2d 434 (Tex.Clv.App.   1961,
error    ref.     n.r.e.   I.
       Insofar ae it fails to give notice that a new and
Independent cause of action unknown at common law ia provided,
conferring    standing to sue upon private persons as well a@
the state,    ite agencies and political       subdivisions,  and all
others,    to enforce the public rights In the preservation         of
the natural resource8 of the etate,          the caption could be held
to be constitutionally       defective.     While there are no case8
directly    In point as applied to the eubject qmtter, we
believe it nevertheless       pertinent    to call your attentionto
this possible     constitutional     defeat, at this time.
                                SUMMARY
               House ~111 56 ia not unconstitutional
        inaorar e.8 It euthorizee       private Individuals
        to maintain legal actlone        on behalf ol the
        public to enfowe        public rights under tht
        state’pollutfon      lawn.    Such Bill 10 not
        unoonstitutional       in permlttlng private
        individuals      to 6ue the state and It8 agencies
        and political      subdivision0    and to aid public
        officials     where the state or Its agencies and
        political     subdlvlelona    are joined a6 a neces-
        smy party to represent the stateAn           such              ..
        action.
              Conatltutional    probless  arise    from the
        vagueness of’ the causes of action lntendttd        and
        not definitely    tied to a standard     either
        expreseed   in the Bill or by reference        to other
        rrt8tutcm.   The caption of the Ml1 may also be
        held to be constitutionally      defecttve     Sor
        Sellure.to   give fair notice of the new and
        independent    mtatutory eaumea of action created
        and unknown at common 18u. /“IT
                                                 tfuly,

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                                           -4211-
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    Hon. James L. Slider,        page 9         (M-866)


    Prepared by Kerns Taylor
    Assletant At'tpmey General
    APPROVED:
    OPINION COiYMITTEE
    W. E. Allen,        .Acting Chairman
    Mary Ellen Keith
    Lewis Jones
    Malcolm     Quick
    Malcom      Smith
    Ml?ADEF, GRIFFIN
    Staff Legal Assistant
    ALFREDWALKER
    Executive     Assistant

    NOLAWHITE
    Firet Assistant




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