                                 The Attorney               General of Texas
                                                     December 31, 1982
MARK WHITE
Attorney General


                               Honorable Oscar Ii. Mauzy, Chairman                 Opinion   No. MN-563
Supreme Court Building
P. 0. BOX 12546
                               Committee on Jurisprudence
Austin. TX. 76711.2546         Texas State Senate                                  Ri:     Validity   of         ordinances
512l475~2501                   State Capitol Buflding                              enacted    by v.f?bv.         a general
Telex 9101674.1367             Austin,  Texas   78711                              law city
Telecopier 51214750266
                               Dear Senator   Mauzy:
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709              In 1979, the city       of Kirby.    which    Is a general      law city.       enacted
2141742-6944                   an ordinance entitled:

4824 Alberta Ave.. Suite 160
                                          An ordinance      regulating      the keeping         of animals
El Paso. TX. 79905-2793                   including   but not limited           to,    livestock,      fowl.
91515353464                               dogs and cats within        the city limits          of the city
                                          of Kirby; prescribing       sanitary      conditions     for pens
                                          and enclosures;      providing     exceptions;       providing     a
      Dallas Ave., Suite 202
h--4lon. TX. 770026966
                                          penalty    not     to    exceed      two     hundred      dollars
71316500666                               ($200.00);    and repealing      all ordinances         or parts
                                          of ordinances    in conflict,herewith.
606 Broadway. Suite 312        You have asked whether this ordinance       conflicts  with section   251.001
Lubbock. TX. 79401.3479
8061747.5236
                               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
                               article    165b-1. V.T.C.S.).  You have also Inquired about the legality
4309 N. Tenth. Suite B         of certain    actions taken by the mayor and city council   of Kirby.
McAllen, TX. 78501-1665
512l6624547
                                    Section   251.002   of the Agriculture        Code provides:

200 Main Plaza. Suile 400                 In this   chapter:
San Antonio, TX. 76205.2797
51212254191                                    (1)    ‘Agricultural     operation’   includes       but    is
                                          not     limited      to   the   following     activities:...
An Equal Opportunity/                     raising    or keeping livestock       or poultry....
Affirmative Action Employer
                                              (2)   ‘Governmental requirement’    includes    any...
                                          ordinance.. . promulgated by a...     city...    that has
                                          the power to enact or promulgate     [it].

                                    Section   251.004   of the code provides:

                                             (a) No nuisance   action          may be brought against
                                          an agricultural  operation          that has lawfully   been



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Honorable   Oscar H. Mauzy - Page 2 ,(MW-563)                                          .




            in operation     for one year or more prior to the
            date    on which the action          is brought,      if    the
            conditions     or circumstances         complained      of   as
            constituting     the basis      for the nuisance        action
            have existed      substantially      unchanged since        the
            established    date of operation.          This 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.

                (b) A person who brings a nuisance action                        for
            damages         or      Injunctive         relief       against       an
            agricultural         operation      that has existed          for one
            year or more prior to the date that the action is
            Instituted         or who violates             the   provisions       of
            Subsection        (a) of this        section      is liable     to the
            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 others related             incidental      expenses
            Incurred in the defense.

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

       The fundamental   question   is whether section    251.004 llmits    the
power of a municipality     to enforce an ordinance that declares      certain
activities   to be “nuisances.”    For the following   rea,aons, we answer in
the negative.     We therefore     conclude   that the cdty of Kirby may
enforce its livestock    ordinance without violating    section  251.004.

      The key words in section         251.004 are “nuisance   action.”     If a
particular     legal proceeding    does not constitute    a “nuisance   action”
within the meaning of,this      section , the section is not triggered.       Our
task,    therefore,   Is to determine       what the term “nuisance     action”
embraces.

     Professor       Prosser has observed that “[tlhere      is perhaps no more
impenetrable      jungle    in the entire    law than that which surrounds   the
word ‘nuisance.“’         W. Presser,   liandbook of the Law of Torts 571 (4th
ed. 1971).       The term is difficult        to define.  Stoughton, v. City of
Fort Worth. 277 S.W.2d 150, 152-53 (Tex. Civ. App. - Fort Worth 1955.
no writ),    offers    this overview of “nuisance” law:




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Honorable     Oscar H. Hauzy - Page 3           (m-563)




                   In a broad sense,       a nuisance     is anything      that
              works injury,      harm or prejudice        to an individual
              or the public....       A nuisance has also been defined
              a8 anything      that ‘obstructs,       impairs or destroys
              the reasonable,       peaceful,    and comfortable        use of
              property....’        ‘A nuisance      per se is generally
              defined as an act,. occupation,           or structure      which
              is     a nuisance      at    all   times     and under        any
              circumstances,         regardless        of     location         or
              surroundings....’         ‘Acts which are, denounced as
              illegal     by law, when the perpetration               of them
              invade the rights       of others will be nuisances           per
              se....   ’ A public nuisance exists wherever acts or
              conditions      are subversive       of public       order.      or
              constitute       an obstruction        of. public        rights.
              (Citations    omitted).

        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              in  the hands of the
 individual      whose rights        have been disturbed.             Be may, for example,
seek either        injunctive       relief,      see,   e.g.,     O’Dauiel    v. Libal,     196
 S.W.Zd 211 (Tex. Civ. App. - Waco 1946, no writ),                         or damages, m
$&w      Vestal v. Gulf Oil Corporation,                235 S.W.Zd 440 (Tex. 1951).            A
  public”     nuisance,        on the other          hand.    involves     some substantial
interference       with the rights          of the community at large,          such as with
the public       health,      peace or comfort.           Usually~ public      nuisances    are
designated      as such by a statute           or ordinance.       Where this Is the case,
the governmental         entity    which enacted the law will be responsible                for
enforcing      it.      See generally         Storey v. Central         Hide and Rendering
Company, 226 S.W.2d 615 (Tex. 1950); McKee v. City of Mt. Pleasant,
328 S.W.2d 224 (Tex. Civ. App. - Texarkana 1959. no writ);                           Stoughton
v. City of Fort Worth, supra; W. Presser, crupra, at 572-602.

       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 alegal             proceeding
alleges     that an “agricultural          operation” constitutes       a “nuisance,”     but
the operation        Is not being conducted in violation               of any statute      or
ordinance,       such a proceeding          would constitute       a “nuisance      action”
within     the meaning of section            251.004.      Proceedings     for damages or
injunctive      relief    initiated      by private    individuals     would fit in this
category.       On the other hand, vhere a proceeding                    is initiated      to
enforce a statute          or ordinance,       it would not constitute         a “nuisance
action” under section           251.004.

       The language   of section    251.004 supports   this  conclusion.    See
State v. Terrell.    588 S.W.2d 784 (Tex. 1979) (legislative       intent tobe
ascertained    from statutory    language).   In particular,   two provisions




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Honorable   Oscar H. gauzy - Page 4              (lC+‘-563)




in this section make it clear that the legislature              did not intend this
section   to have any effect         upon proceedings       brought      to enforce    a
statute   or ordinance.       The first     is the sentence      In subsection       (a)
which states     that the subsection         “dots ‘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 “[tlhls       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....”

       Additional     support for our conclusion     can be found by examining
section   251.005 of the code.       See Merchants Fasts Motor Lines.     *i::.
                                                                          --    v.
Railroad Commission of Texas, 5yS.W.           2d 502 (Tex. 1978) (legislative
intent   to be determined      by looking at entire     act. not just   isolated
portions    thereof).     It provides in part:    ..

                (a) #or    purposes    of    this    section.       the
            effective  date of a governmental       requirement       is
            the date on which the requirement           requires     or
            attempts   to    require   compliance      as     to    the
            geographic  area encompassed      by the agricultural
            operation.    The recodification      of a municipal
            ordinance  does not change the original        effective
            date to the extent of the original     requirements.

                ....

                (c) A governmental               requirement       of a city does
            not apply to any agricultural                     operation     situated
            outside      the corporate           boundaries       of the city        on
            the     effective         date      of     this    chapter.        If    an
            agricultural         operation       so situated       Is subsequently
            annexed or otherwise              brought within the corporate
            boundaries           of     the        city.      the      governmental
            requirements          of the city            do not .apply        to the
            agricultural         operation        unless     the. requirement        is
            reasonably       necessary       to protect persons who reside
            in the immediate vicinity                    or persons       on public
            property        in      the     immediate         vicinity       of    the
            agricultural            operation          from     the     danger       of
            explosion,         flooding.        vermin,       insects,      physical
            injury,     contagious        disease,        removal of lateral         or
            subjacent          support,           contamination          of     water
            supplies,       radiation,         storage      of toxic materials,
            discharge      of firealms.          or traffic      hazards.

       When sections 251.004 and 251.005 are considered   in pari materla,
it becomes clear that the legislature      has limited  both the power to
initiate   “nuisance actions” which do -.
                                        not seek enforcement   of a lav or



                                           p.   2067
Honorable    Oscar H. Mauzy - Page 5            W~S63)




ordinance  and the enforceability   of laws and ordinances                      themselves.
It has done,     however, in two distinct  statutes.

       Section     251.005 limits      the territorial        effect   of, among other
things,     city ordinances.        It does not impair the enforceability                of
ordinances      within the geographical        areas in which the ordinances        apply
under its      terms.      In our opinion,       if the legislature       had meant for
section    251.004 to have any effect          upon the power of a municipality          to
enforce its ordinances         even in the areas in which they apply, it would
have given some affirmative            indication      in section    251.005 that such
ordinances      may be given only limited          effect  in those areas.      The fact
that,    in section       251.005,    the legislature        limited    the ter-'torial
effect     of city      ordinances     but said nothing          about limiting      their
enforceability       within the areas in which they apply is strong evidence
that    section      251.004    should     not be read as imposing             any such
limitations.

       For these reasons,    we conclude that a legal proceeding        that Is
initiated    to enforce a law or ordinance that classifies     an activity    as
    "nuisance"    does not constitute      a "nuisance  action"    within    the
teaning    of section   251.004.    Section  251.004.  therefore,     dots not
impair the city of Kirby's right to enforce its livestock         ordinance.

     You next ask whether the following    resolution    of the Kirby                   City
Council violates the Open Records Act , article    6252-17a. V.T.C.S.:

             Be it resolved,        that to encourage           an unhindered
             flow    of coaununication         and the discussion              and
             dellberarion      of city       business      matters      that    by
             general    or special      statute     cannot be made public
             or which        might     adversely       affect      the     public
             security.    financial     interest     of the city of Kirby,
             Texas,    or the reputation          of any person,          and to
             insure     the    protection       of    the     attorney-client
             privilege     recognized     by law, the mayor, ~11 city
             council    members and the city attorney,                or anyone
             who may be present          during an executive           session.
             shall    be prohibited       from making the contents              of
             any executive      session    known to the public....

       To the     extent     that    this    resolution       prohibits     the    named
individuals    from orally "making the contents          of any executive       session
known to the public,"         its  enforceability      is not dependent upon the
Open Records      Act.    In our opinion,          that    act,     which' applies     to
information    in the possession       0f.a governmental        body, has no bearing
upon what members of that body may choose to say in public.                            In
enforcing   this resolution,      the city might encounter difficulties.            such
as the first      amendment to the federal            Constitution,      but the Open
Records Act would not be among them.




                                         p. 2068
Honorable Oscar H. Mauzy - Page 6              (MW-563)




      To the extent          that the resolution         applies     to such 'things       as
documents discussed          in an executive        session    or a council         member's
notes of that session,            however, a different         question     is presented.
Until the city receives            a formal request for particular            information,
its right to enforce           this resolution      would not depend upon the Open
Records Act, because            the act does not come into play until                   such
request     is    received.       Once a request         is   received,      however,    the
resolution     could have no effect         upon the decision       of the custodian       of
information      of the governmental          body AS to whether access               to the
requested      material     must be granted.         If the custodian         is asked to
release    a document involved         in the executive      session,     in other words,
he will have to determine whether the Open Records Act requires                          its
release.        This    resolution       cannot    shield     from public         v;tw   any
information      in the governmental         body's possession        that must be made
public under the terms of the Open Records Act.

       You next ask whether            the city       council      may direct       the    city
attorney     "to report directly        to the city council           regarding      all city
business."        We have insufficient          facts    with which to answer this
question.      In general,    since the city attorney            is employed by the city
of Kirby. we see no reason why the city council cannot direct him to
report     to it     regarding     city    business.        On the other           hand,    the
resolution      in question      also     contains      A   flat    prohibition        against
written    or verbal communications         between the city attorney            and various
city    officers.       In   enforcing       this     prohibition,       the    city     could
encounter problems under the first             amendment. particularly           if it takes
punitive    measures against the city attorney for violating                   it.

       You next ask whether three city council       members may prepare A
resolution    without  the knowledge of the mayor, city         staff,    or the
other two council members and then present        And pass   it at a council
meeting.     Since you have not indicated      the legal   problem that you
think the above action      raises , we will assume that your question         is
whether the affirmative     vote of three council members is sufficient        to
pass a resolution.        You do not present     any facts     suggesting    any
violation   of the Open Meetings Act.    V.T.C.S. art. 6252-17.

       Article    997. V.T.C.S.,      provides:

                  All ordinances       and resolutions   adopted by the
              council    shall,    before they take effect,      be placed
              in the office of the city secretary;         and the mayor
              shall   sign those he approves.          Such as he shall
              not sign, he shall return to the city council with
              his objections        thereto.   Upon the return of any
              ordinance or resolution        by the mayor, the vote by
              which the same was passed shall be reconsidered.
              If, after such reconsideration.          a majority   of the
              whole number of aldermen .agree to pass the same,
              and enter      their    votes  on the journal       of their




                                          p. 2069
Honorable    Oscar H. Mauzy - Page 7          (MW-563)




             proceedings,     it shall  be in force.  If the mayor
             shall   neglect    to approve or object   to any such
             proceedings     for a longer period than three days
             after the same shall be placed in the secretary's
             office    as aforesaid,     the  same shall   go into
             effect.

        City of Centerville      v. Adkisson. 291 S.W.2d 798 (Tex. Civ. App. -
Waco 1956. no writ),        held that A mayor was not an "alderman" within
the meaning of article         1033, V.T.C.S;.       which required    the "consent of
two-thirds      of the aldermen elected."          Likewise,   we believe     a mayor is
not an "alderman" within           the meaning of article        997.     Since ti.;s is
true, even if the mayor refused to approve a particular                  resolution,     "a
majority      of the whole number of aldermen" could override                  his veto.
Three of the five         "aldermen"       constitutr     a majority.       Thus, under
article     997, three city council          members may pass a resolution.              Of
course,     it is up to the council          to determine whether the manner in
which      a resolution      is     brought    before     it   comports      with    local
requirements,      rules of parliamentary        procedure,   etc.    See generally      40
Tex. Jur. 2d Municipal Corporations            50262. 268.

        You next    ask whether      the mayor has the authority        to send a
"letter    of reprimand" to a city council member.           The first    amendment
protects    the individual's      right to self expression.      This particular
letter,    moreover,      does not     threaten  the council    member with      any
particular     sanctions.     Thus, we have no occasion      to consider    whether
the mayor would be authorized           to do more than merely "reprimand" the
council    member. i.e..       take some sort      of concrete   punitive    action
against him.           -

       You finally    ask whether the mayor has the           authority    to establish
city   policy.    Article  996, V.T.C.S., provides:

                 The mayor shall have power to administer       oaths
            of office.       He shall have authority   in case of 8
            riot or any unlawful assemblage.       or with A view to
            preserve     peace and good order in said city,          to
            order and enforce       the closing  of any theatre....
            He shall perform such other duties and nossess          and
            exercise    -such other power and authority    as may be
              rescribed     and conferred     by the city   council.
            &aphasiS      added).

       A mayor derives    his powers and duties      from statutes,    the city
charter.  valid   ordinances,  and resolutions     of the city council.       S&2
Nixon v. City of Houston, 560 S.W.Zd 447 (Tex. Civ. App. - Hous=
114th Dist.]    1977, writ ref'd n.r.e.1;     City of Galveston     v. Hutches,
76 S.W. 214 (Tex. Civ. App. - 1903). rev'd on other grounds sub nom.
Abbott v. City of Galveston,     79 S.W. 1064 (Tex. 1904).        After listing
specific   powers, article    996 provides     that the mayor shall      possess



                                       p. 2070
.
    Honorable   Oscar H.‘Mauzy - Page 8           (MW-563)                          I.




    “such    other power...   as my be prescribed     and conferred by the city
    council.”      Thus, in any particular    instance,   the mayor’s  right  to
    establish     policy unilaterally will  depend upon whether he has been
    given such power by law or by the city council.

                                        SUMMARY

                    1. The city of Kirby may enforce its livestock
                ordinance   without   regard to section 251.001 -et
                n     of the Agriculture    Code.

                    2. The Open Records Act,             article     6252-17a.
                V.T.C.S..     has no bearing on the enforceability             of
                a city     resolution     forbidding   participants       in an
                executive       session     of   the  city      council     from
                divulging      the contents      of said    session     to the
                public    until     the city receives     a formal request
                for information       at issue in said session.

                    3. The city         council      may direct     the    city
                attorney    to     report     directly      to, the    council
                regarding     all      city     business.       Whether     its
                prohibition       against       discussions     with     named
                individuals      is     enforceable       under   the    first
                amendment to the federal Constitution           would depend
                upon the facts of the case.

                    4. The vote        of three      council      members     Is
                effective to pass      a resolution.

                    5. There is      nothing to prohibit  a mayor from
                sending a letter      of “reprimand” to a city council
                member.

                    6. If authorized          by statute   or by the city
                council,      the mayor      may establish    local policy
                unilaterally.




                                                     MARK         WRITE
                                                     Attorney    General of Texas

    JOHNW. FAINTER, JR.
    First Assistant Attorney       General

    RICHARDE. GRAYIII
    Executive Assistant Attorney        General




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Honorable    Oscar H. Mauzy - Page 9 (MJ-563)




Prepared    by Jon Bible
Assistant    Attorney General

APPROVED:
OPINIONCOMMITTEE

Susan L. Garrison,    Chairman
Jon Bible
Rick Gilpin
Patricia  .Hinojosa
Jim Moellinger
Stan Reid




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