                                         The Attorney            General of Texas
                                                              December 22, 1982
MARK WHITE
Attorney General


                                        Robert Bernstein, M.D., F.A.C.P.          opinion No. MW-544
Supreme      Court Building
                                        Commissioner of Health
P. 0. am 12546
Austin. TX. 76711. 2548
                                        Texas Department of Health                Re:   Department of Health
51214752501                             1100 West 49th Street                     authority to bring nuisance
Telex    910/674.1367                   Austin, Texas   78756                     suit   against  agricultural
Telecopier      5121475-0266                                                      operator

1607 Main St., Suite 1400
                                        Dear Dr. Bernstein:
Dallas, TX. 75201.4709
214/742-6944                                 In 1981 the Texas legislature enacted sections 251.001 et seq. of
                                        the Agriculture Code. Acts 1981, 67th Leg., ch. 693,         at  2595,
                                        incorporating Acts 1981, 67th Leg., ch. 124, at 313 (codified as
4624 Alberta       Ave., Suite    160
El Paso, TX.       79905.2793           article 165b-1, V.T.C.S.). Section 251.004 reads as follows:
9151533-3464
                                                    (a) No nuisance action may be brought against
                                                 an agricultural operation that has lawfully been
1220 Dallas Ave., Suite          202
HOUS,O~, TX. 77002.6986
                                                 in operation for one year or more prior to the
7131650-0666                                     date on which the action is brought, if the
                                                 conditions or circumstances complained of as
                                                 constituting the basis for the nuisance action
806 Broadway,        Suite 312                   have existed substantially unchanged since the
Lubbock,     TX.    79401-3479
6061747-5238
                                                 established date of operation. This subsection
                                                 does not restrict or impede the authority of this
                                                 state to protect the public health, safety, and
4309 N. Tenth, Suite 8                           welfare or the authority of a municipality to
McAllen,     TX. 76501-1665                      enforce state law.
512/682-4547

                                                    (b) A person who brings a nuisance action for
200 Main Plaza, Suite 400                        damages or injunctive relief against an agri-
San Antonio.  TX. 76205.2797                     cultural operation that has existed for one year
5121225-4191                                     or more prior to the date that the action is
                                                 instituted or who violates the provisions of
 A,, Equal     Opportunity/                      Subsection (a) of this section is liable to the
 Affirmative     Action     Employer             agricultural operator for all costs and expenses
                                                 incurred in defense of the action, including but
                                                 not limited to attorney's fees, court costs,
                                                 travel, and other related incidental G2Xpe*SCS
                                                 incurred in the defense.

                                                    (c) This section does not affect or defeat the
                                                 right of any person to recover for injuries or




                                                                    P. 1972
Dr. Robert Bernstein - Page 2   (MW-544)




          damages sustained because of an agricultural
          operation or portion of an agricultural operation
          that is conducted in violation of a federal,
          state,   or   local    statute   or   governmental
          requirement that applies to the agricultural
          operation or portion of an agricultural operation.

See Agric. Code 9251.002 (definitions).

     You are concerned about the relationship between section 251.004
and article 4477-1, V.T.C.S., which authorizes the Department of
Health and local prosecutors to take legal action to prevent actual or
potential public nuisances. You ask:

          May an agricultural operator against whom a
          nuisance action is brought pursuant to the
          provisions of article 4477-l recover from the
          Texas Department of Health or its duly authorized
          representatives the costs and expenses incurred in
          defense of the action in the manner set forth in
          the Right-to-Farm Act, Agriculture Code, sections
          251.001-251.005?

     Article 4477-l prescribes "minimum standards of sanitation and
health protection measures." Among other things, its 25 sections
declare certain activities to be "nuisances dangerous to the public
health," section 2. and impose sanitation requirements upon public
establishments, -,    sections 6, 8, 12, 15 and 17. Section 3 states
that any person who possesses any place "in or on which there is a
nuisance" must, when the nuisance becomes known to him, "proceed at
once and continue to abate the said nuisance." It directs local
health officers to issue to the person responsible for the nuisance a
written notice ordering its abatement, and to send a copy of the
notice to the local city, county, or district attorney. If compliance
with this order is not forthcoming, "the local prosecuting attorney...
shall immediately institute proceedings for the abatement thereof."
Section 24 provides that any person, firm, or corporation who violates
the statute shall be fined between $10 and $200, with each day's
violation constituting a separate offense. Section 25 authorizes the
Department of health to apply to a district court to enforce the
statute.

     For the following reasons, we conclude that a legal proceeding
initiated to enforce article 4477-l does not constitute a "nuisance
action" within the meaning of section 251.004. We therefore answer
your question in the negative.

     Professor Presser has observed that "[tlhere is perhaps no more
impenetrable jungle in the entire law than that which surrounds the




                                p. 1973
Dr. Robert Bernstein - Page 3   (~~-544)




word 'nuisance.'" Presser, Law of Torts 571 (4th Ed. 1971).
Nonetheless, certain general principles regarding nuisances can be
stated.

     Nuisances are classified as "private" or "public." A "private"
nuisance is a civil wrong, based on a disturbance of one's right to
use or enjoy land. The remedy for it lies with the individual whose
rights have been disturbed. He may seek, inter alia, injunctive
relief, see O'Daniel v. Libal, 196 S.W.2d 211 (Tex. Civ. App. - Waco
1946. no writ), or damages, see Vestal v. Gulf Oil Corporation, 235
S.W.2d 440 (Tex. 1951). A"public"       nuisance, on the other hand,
involves some substantial interference with the rights of the
community at large, a,    with the public health or comfort. Usually,
public nuisances are declared to be such by some law. See generally
Storey v. Central Hide and Rendering Company, 226 S.W.2d 615 (Tex.
1950); Stoughton v. City of Fort Worth, 277 S.W.2d 150 (Tex. 'Xv. App.
- Fort Worth 1955, no writ); Prosser, Law of Torts 572 et seq. (4th
Ed. 1971).

     We conclude that the legislature's intent in enacting section
251.004 was simply to limit the circumstances under which suits may be
brought against "agricultural operations" that are not being conducted
in violation of any law. In other words, where negal        proceeding
seeks relief against an "agricultural operation" that is alleged to
constitute a "nuisance," but the operation is not being conducted in
violation of any law, the proceeding would constitute a "nuisance
action" within the meaning of section 251.004. Actions for damages or
injunctive relief initiated by private individuals would fit in this
category. But where a proceeding seeks to enforce a law that declares
an activity to be a "nuisance," it would not constitute a "nuisance
action" under section 251.004.

     The language of section 251.004 supports this conclusion. SW
State v. Terrell, 588 'S.W.2d784 (TM. 1979) (legislative intent toX
ascertained from statutory language). In particular, we believe that
two provisions in this section make it clear that the legislature did
not intend this section to have any effect upon proceedings brought to
enforce a law. The first is the sentence in subsection (a) which
states that the subsection "does not restrict or impede the authority
of this state to protect the public health, safety, and welfare or the
authority of a municipality to enforce state law." The second is the
statement in subsection (c) that "[tlhis section does not affect...
the right of any person to recover for injuries or damages sustained
because of an agricultural operation... conducted in violation of a
federal, state, or local statute...."

     The legislative history of the Agriculture Code provisions also
buttresses our conclusion.     This history demonstrates that the
legislature was concerned with nuisance actions brought, sometimes for




                                  p. 1974
Dr. Robert Bernstein - Page 4   0%544)




purposes of harassment, by individuals who move close to established
agricultural operations and then seek to curtail those operations
because of the annoyance factor. But there is not the slightest
evidence that it ever intended to prevent the enforcement of state
laws aimed at public nuisances.

     We therefore conclude that a defendant cannot recover costs and
expenses incurred while defending against a legal action brought by
the department or a local prosecutor under article 4477-l.

                              SUMMARY

             Section 251.004 of the Agriculture Code does
          not authorize an individual to recover for costs
          and expenses incurred while defending an action
          brought by the Department of Health or a local
          prosecuting  attorney   under   article  4477-1,
          V.T.C.S.




                                         MARK      WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
George Warner




                                   P. 1975
