                                    78711


                                    1971


Mr. Ogden Bass                Opinion No. M-1009
Criminal District Attorney
Brasoria County Courthouse    Re:     Construction of Article
Angleton, Texas 77515                 696a and Article 696a-1,
                                      Vernon's Penal Code,
Dear Mr. Bass:                        wherein they conflict.
     you ask us to harmonize the provisions of Article
696a and Article 696a-1, Vernon's Penal Code. The amend-
ment to Article 696a had a passage date of May 19, 1971.
Article 696a-1 had a passage date of May 21, 1971.
     you state that these two Acts appear to denounce the
same offense, but that they prescribe different maximum
penalties.
     It will be necessary for clarity to set forth these
two statutes in full.
     Article 696a, as amended, reads as follows:
               "Section 1. The following terms as
          herein defined, shall control in the con-
          struction and enforcement of this Act:

               "(a) The term 'refuse' shall include
          garbage, rubbish, and all other decayable
          and non-decayable waste, including vege-
          table, animal and fish carcasses, except
          sewage from all public and private estab-
          lishments and residences. As amended Acts
          1957, 55th Leg., p. 480, ch. 230, Sl.
               "(b) The term 'garbage' shall include
          all decayable wastes, including vegetable,
          animal and fish offal and carcasses of
          such animals and fish, except sewage and
          body wastes, but excluding industrial



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Mr. Ogden Bass, page 2.    (M-1009)



          by-products, and shall include all such
          substances from all public and private
          establishments and from all residences.
          As amended Acts 1957, 55th Leg., p. 480,
          ch. 230, S2.
               "(c) The term 'rubbish' shall include
          all non-decayable wastes, except ashes, from
          all public and private establishments and
          from all residences,

               "(d) The term 'junk' shall include all
          worn out, worthless and discarded material,
          in general, including, but not limited to,
          odds and ends, old iron or other metal, glass,
          paper, cordage or other waste or discarded
          materials.

               "(e) The term 'public highway' shall
          mean and include the entire width between
          property lines of any road, street, way,
          thoroughfare, bridge, public beach, or park
          in this state, not privately owned or con-
          trolled, when any part thereof is opened to
          the public for vehicular traffic or which is
          used as a public recreational area and/or
          over which the state has legislative juris-
          dictionsunder its police power.  As amended
          Acts 1957, 55th Leg., p. 480, ch. 230, g3.
               "Sec. 2. A. It shall be unlawful for
          any municipal corporation, private corpora-
          tion, firm or person to dump, deposit, or
          leave any refuse, garbage, rubbrsh or junk
          on any public highway in this State, or
          county roads.
               "B. It shall be unlawful for any
          municipal corporation, private corporation,
          firm or person to dump, deposit, or leave
            Y   f     g bg      ubb h      junk within
          g3 n~~r~~e;h$rthar~~ hrundizd ?rOO) yards
          of any public highway in this State, whether
          the refuse, garbage, rubbish, or junk being
          dumped, deposited, or left, or the land upon



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Mr. Ogden Bass, page 3.     (M-1009)


         which refuse, garbage, rubbish or junk is
         dumped, deposited or left belongs to the
         person or persons so dumping, depositing or
         leaving it or not.
               "C. The provisions of Subsection B of
          this Section shall not apply when such refuse,
          garbage, rubbish or junk is processed and
          treated in accordance with rules and stand-
          ards promulgated by the State Department
          of Health.
               "D. The provisions of this Act shall
          not affect farmers in the handling of any-
          thing necessary in the growing, handling and
          care of livestock, or the erection, operation
          and maintenance of any and all such improve-
          ments that may be necessary in the handling,
          threshing and preparation of any and all agri-
          cultural products.
               "E. The State Department of Health
          shall promulgate rules and standards regu-
          lating the processing and treating of refuse,
          garbage, rubbish or junk dumped, deposited
          or left within or nearer than three hundred
          (300) yards of any public highway in this
          State. As amended Acts 1963, 58th Leg.,
          p. 764, ch. 291, Sl.
               "Sec. 3. Any violation of this Act by
          any person, firm or private corporation, shall
          upon conviction, subject the offender to a fine
          of not less than $50 and not more than 8400,
          and each day of any such violation shall be
          treated as a separate offense. In the event
          of any threatened or probable violation of this
          Act by any public corporation, municipality,
          city, town or village, it shall be the duty of
          the County or District Attorney in the county
          in which such violation is threatened, to
          bring suit for injunction to prevent such
          threatened or probable violation. Any person
          affected or to be affected by any such threat-
          ened or probable violation shall have the



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Mr. Ogden Bass, page 4.    (M-1009)



          right to enjoin such violation or threat-
          ened violation. The enforcement of the
          remedy hereinabove provided by injunction
          shall not prevent the enforcement of the
          other penalties provided in this Act.
          (Chap. 402, page 1446, 62nd Leg., passed
          by the House on May 11, 1971, and by the
          Senate on May 19, 1971. Effective Aug. 30,
          1971.)

               "Sec. 4. All laws or parts of laws in
          conflict with the provisions of this Act are
          hereby repealed to the extent of such con-
          flict.
               "Sec. 5. This Act and all of the terms
          and provisions herein shall be liberally
          construed to effect the purposes set forth
          herein.
               "Sec. 6. If any provision of this Act
          or the application thereof to any person or
          substance shall be held to be invalid, the
          remainder of this Act and the application of
          such provisions to other persons or substances
          shall not be affected thereby. Acts 1927,
          40th Leg., 1st C.S., p. 153, ch. 53; Acts 1947,
          50th Leg., p. 328, ch. 188, 91." (Emphasis
          added.)

     The 1971 amendment to this Article made changes only
to its Section 3 which relates solely to the penalty and
enforcement provisions.
     Article 696a-1, which was first enacted in 1971, reads
as follows:




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Mr. Ogden Bass, page 5.      (M-1009)


          guilty of a misdemeanor and upon convic-
          tion shall be fined not 'less than $15 nor
          more than $200. Every law enforcement of-
          fleer of this State and its subdivisions
          shall have authority to enforce the provi-
          sions of this Act.
               "Section 2. The seriousness of the
          health, fire and accident hazards resulting
          from litter creates an emergency and an
          imperative public necessity that the Con-
          stitutional Fule requiring bills to be read
          on three several days in each House be sus-
          pended, and this Rule is hereby suspended:
          and that this Act take effect and be in
          force from and after its passage, and it
         his so enacted. (Chap. 366, page 1380, Acts
          of 62nd Leg., passed by the Senate on April
          6, 1971, and by the House on May 21, 1971.
          Effective May 26, 1971)" (Emphasis Added.)
     It will be noted by reference to the several revisions
of Article 696a that the offenses denounced are set forth
* Section 2 thereof and they consist of dumping, etc. "on
?public highway or within or nearer than three hundred (300)
yards of any public highway or county roads of this State."
The amendment to Section 3 of this Act (Chap. 402, Acts of
62nd Leg., page 1446) was adopted or passed by the Legis-
lature at a point in time earlier than the provisions of
Article 696a-1 and thus there was a partial repeal of Sec.
3 or Article 696a by enactment of Article 696a-1, the later
statute relating to dumping on or near public highways and
rights-of-way. Article 696a-1 is the latest statute.
Ex Parte De La Jesus De La 0, 227 S.W.2d 212, (Tex.Crim.
'ib50);Attorney General Opinion M-906 (1971); Opinion No.
V-990 (1950) and cases therein cited.
     The effect of the above two statutes is that Article
696a-1 includes the dumping of trash, junk, garbage, refuse
and waste on both public and private property and into pub-
lic waters without written consent: however, the old statute,
Article 696a, is still in effect and remains the latest ex-
pression of the legislature only as to dumping within three
hundred (300) yards of any public highway. Ex Parte Gaz
Patterson, No. 44575, Tex.Crim. Oct. 26, 1971, not yet of-
-ially   reported.



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Mr. Ogden Bass, page 6.      (M-l   009)



                      SUMMARY

               Article 696a, Vernon's Penal Code,
          controls dumping within three hundred (300)
          yards of public highways and Article 696a-1,
          Vernon's Penal Code, controls dumping in
          relation to other areas therein mentioned.
          Both statutes are in force as law and can
          be harmonized since Article 696a-1 only
          partially repeals Article 696a.

                                Your; very truly,




Prepared by Roger Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Robert Flowers
John Reeves.
Charles Lind
Max Flusche
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant

NOIA WRITE
First Assistant




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