Texas Attorney General Opinion: M-323 Page: 2 of 5
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Hon. Criss Cole, page 2(M-323)
"Whoever shall carry on any trade, business
or occupation injurious to the health of
those who reside in the vicinity, or suffer
any substance which has that effect to re-
main on premises in his possession, shall
be fined not less than ten nor more than
one hundred dollars. Each day is a separate
offense."
Although Article 695 does not specifically define air
and water pollution as criminal offenses, several Texas Court
decisions have indicated that persons who carry on a trade or
occupation which causes air or water pollution injurious to
the health of persons residing in the vicinity are in viola-
tion of Article 695 and subject to a fine. In Moore v. State,
81 Tex.Crim. 302, 194 S.W. 1112 (1917), the prosecution for
operating a slaughterhouse was upheld as a violation of
Article 695. The evidence showed that the smell and odor and
pollution of an adjacent bayou resulting from the slaughter
operations was injurious to the health of those residing in
the vicinity and constituted a violation punishable by fine.
See also Fielder v. State, 150 Tex.Crim. 17, 198 S.W.2d 576
(1947). Cameron v. State, 389 s.w.2d 471 (Tex.Crim. 1965).
Directly answering your first question we are of the
opinion that Article 695 does operate to make air pollution
and water pollution a penal offense when such pollution re-
sulting from a business is injurious to the health of those
who reside in the vicinity. However, the State does not
have to show that the health of any person living in the
vicinity was injuriously affected, rather it need show only
that the pollution from the operation of the business is
such as would be injurious to health. McNeese v. State, 147
Tex.Crim. 310, 180 S.W.2d ,L64 '(0944).
In answer to question two regarding other statutes
which would make the pollution of air or water in Texas a
penal offense, there is only one statute naming pollution
as a penal offense and it relates merely to water pcllution.
Article 862, Vernon's Penal Code, makes unlawful, among other
things, for a person to "....wash or bathe in or in any way
pollute the waters of any lake or pond, or stream...." with-
in the public grounds of Texas. The term "public grounds",
as used in Article 862, includes all the grounds owned by
the State. The penalty for a violation of this provision
is not less than five nor more than one hundred dollars.
Both Article 7577, Vernon's Civil Statutes and Article 698b,
Vernon's Penal Code, making unlawful the polluting of cer-
tain bodies of water were repealed in 1961.- 1586-
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Texas. Attorney-General's Office. Texas Attorney General Opinion: M-323, text, December 17, 1968; (https://texashistory.unt.edu/ark:/67531/metapth269544/m1/2/: accessed August 15, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.