Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Mr. L. 1. Qeren
county Attorney
tlneetene Deunty
iheae*lt, TMa8
Bear slrr
e very able brief 8 been of l *al8tanIe etter a,0 fellowt n ‘the oolinty oourt er 5,Tt
aha bo wJlawrul for any paWSOB, r1riE or oorporation, private or mranicijsal to pollute eny mtter course or other publla body or water, by throwIn& rpaetin~~or d4porfting, or oanoiag to be thrown, east or depealted any 0rud8 pstm- lsne, oil OT other like subatanao timrein, or to pollute any water course, or other publls bo&y *2 Mr. L. L. Gervn, Maroh 90, 1959, Pago g
of water, from ahloh vatar is taken for the we of farm live stook, drlnklng and domartia purposes, in tha State of Tsxaa, by the dls- charge, dlrsotly or lndiraotly, of any rswaga or unolaan water or unolean Or polluting mat- ter or thing therein or in auoh proximity thereto as thrrt it vi11 probably raaoh and pollute the water of suoh water course or other pub110 body of water iron whioh water is taken, ror the umsm~ of farm live #took, drinking and domsstia purpoaaa; provided, hov- erer, that the proririonr of this bill shall notaffsot any nuntoipal oorporatlon altuated on tide raters; that i# to gay, uhars the tid.
abbs snd ?las in SUO~ water 6OIWasi prsvlded, h&waver, that no ofty looatod on, tida water 8hall dlsaharga or permit to bs disohargod #everago, oil or any other sfflusnts into pub- 110 tlds vaterm of thfr Pltate when euoh die ohargs will bsooms a mena to or andangsrs the oyoter bads or Ziah life ia suoh uater8, or whsa suoh disaharga beoamu a msnaoa to the bathing plaoed in 8uah watara; pro- vided further that drain ditahas, vhers warts 011 find8 its way into water dour808 or publla bodies of vater, ohall bo @quipped 81th trap8 of sufriolsnt oapaoitr to armat ths flew of Oil. In 80 Snr a8 oonoarnn the pr0teotlon of fish and oysty, the Mama, Fllrh and Oyster ColamisPioner , or his deputies, may hato jurir- diotion in the sixforosmant of this ehaptor.
A violation of any of the prmlalons of thl# ohaptsr shall bs punished by a fins of not less than ens hundred dollars and not more than one thousand dollara. When ths offsnsa shsll have been aommltted by a~ firm, partnsr- ship or aasooiation, eaoh mombar thereof who has knowlsdgs of the QOfAViS8iOn Of auoh Of- fense, shall be hold guilty, When, omitted by a private oorporatloa, tha offioers aad members of the bcnrd of dirsstora, having knowledge of the oozem~rrfon of such orfmnaa, shsll each ba deemed guilty; aad vhen by a munialpal oorporatlon the mayor and sash awnbar *3 Mr. L. L. Germ, Karoh 30, 19X7, Page S
ol ttm boerd of aldermen or co:mis8fon, having knowledge of the ocmmleelon of euch offense, as the case may be, shall be held guilty as rspraeentatives of the munloipality; and aaoh person do indioated a8 above shall be subjeot to the punie!wmnt provided herelnbefore; pro- vided, however, that the payment of the fine by one of the persons so named ahall be n aetis- faotion of the penalty aa against his assooiat6a for the orfanse for whioh ho may hove been oon- vfoted. Eaoh day auoh pollution is knonlngly oaussd or permitted shall oonstltute a separate offense; provided, the grorlsions of this artl- ale ehall not apply to any plaae or pramisss of sanufecturfng plants whose afilaente aontain no organio matter that will putrify, or any poisonous oompounds, or any baoterla dangerour to publfo health or deatruotlve of the ?ish life of streams or other pub110 bodies of water.
L-Offlus :t Cam, Fish Oyster Corn- miesionor was aboliehed and powera, duties and ?uno!lons transferred to Game, Fish and Oyster Ccmml8a~loa. se. Art101e 978?, post.'
Arttole 949 of tho aode of Criminal Proasdure providers:
honey oolleated by an officer upon reoognissanoea, bail bond8 and other obliga- tiooa rsoovared upon in the noms o? the State under any provi8ion a? this Code, and all tinea, forieltures, judgment6 and jury feef~, collcoted under any provision o? thfs Sods, shall forthwith ba, paid over by the ofiioers oolleoting the name to the oounty treasurer of the proper Bounty, arter first deduoting therefrom the ls$al fee8 and ooamissfons ?or collecting the same.*
Article 912 o? the Panel Code made! a8 follorst *It shall be the duty of any juatioa Of the pesos, olerk of any oourt, or any other of-ricer of thisState, r6osiring any rins or *4 BBr. L. L. Germ, Maruh 30, 1939, Page 4
penalty imposed by any oourt for violation of nny of the laws of this State, pertainin?
tc the protectl~a conservation of wild birds, wild fowl, wild animals, fish, oysters, and other wild life, within ten days from and after thr; reaelpt or oolleotlon of suohilno or penalty, to remit same to the Gome, Piah ana Oyster Commiseion at huetin, givinfl aooket number af oasc, name of person flr,ed, and section or erticle of the law under whioh oonvlo- tlon was scoured, when suoh laws are required to be enfo>-ted by the Game, Fish ant, Oyeter Comlission."
Artiole 4085, Retieed Civil Statutes, real8 *a iollws:
*Of all finss oolleated for infraotlon of the fish and oyster law8, ten per oent shall go to the proseouting attorney, and the residue thereof ehall go to the general fund of this State. All funds aolleated by deputy aosuaisslonsro along the ooast for register aertlfio*tee, 11oen8e8, and rents for Locating private oyster beda, and such other charges relating to the fish and oyster laws as may be presoribed, shall be by suah depu- ties paid over weekly to the Covmissloner, who Inturn ahall deposit the same monthly in the state Treasury to the credit of the general revenue fund.*
A oopy of the original informatiou whioh la attached to your inquiry contains three counts, all baaed upon various portions of krtiole 698 of the Penal zoae. The first oount aharges generally the pewtion of the 3avasota Eliver by aesting, etc., polluting matters therein. The seoond oount chargea a pollution of the Savasota River and further alleger that 8ome river weter was then and there taken for the use of farm live etock and for drinking and domeetlo purposes and the thtmd oount ahergee the failure of defendant to equip end maintain his drain ditohes with proper traps. There is no allegation in the information that the alleged pollution was harmful to aquatio life or marine organisms. \Ve do not find any allegatlon whloh *5 Mr. L. L. Ceren, Maroh, SO, 1939, Page S
we oan oonstrue as an infraation of the Game and Oyster Laws or any OS the laws of this state pertaining to the protection and conservation OS wild birda, wild fowl, wild animals, fish, oysters anG other wild life.
:re think that the provisions of’ Artiole 698, Fenal Code, tyiving to the Came, Fish ana Oyster Commission juriadlotlon in the enioroement of this chapter insofar ae it oonoerns the proteation oS Sleh and oysters, by inference, denies to that department juriedlotlon in the enlorcsment of that ohapter ineofar as it does not oon- oern the protection OS fish and oysters.
krtiale 949, Code of Criminal Proaedum, l p ra, la the general law laid down by the Legislature oorering the dispoeltion OS Sines oolleotsd by an oifloer and should be followed in the absuuos of any statutes pertln- ent to the proseaution &n question. Wo have been uuablo to find any statutes under whioh the Commission is mak- ing Its olaim for 90$ of the Sines now in your oustody. We oonalude that euch claim la based upon Artiole 4025, Revised Civil Statutes of Texae, Artlole 9s-t of the Penal Code and Artiale 698a of the Penal Code.
Artiole 698e ot the Penal Code provldee for the remission OS fines aolleoted thereunder to the Commission. This Article is separate and distinot from Artiole 699 of the Penal Code and differs materially therefrom in the orlminal acts it seeks to prohibit. We are of the ogin- ion that the provisions in Art.1019 098a providing for the remission oSfines Lmpoaed for vlolatione of that act to the Game , Pish and Oyster Comalsaion has no applloa- tion to Si!lea imposed for violations of Artiole 698 OS the Penal Code.
Aftor an examination of Artiale 698 of the Penal Code, we find that t3ia statute sets forth and de- Sims several different criminal offenses and find only one provision whioh oan be oonetrued as a fish and oyeter law or provision pertaining to the proteotlon and oonaerveticn o:f wild birda, wild fowl, wild ahiaals, fish, oysters and other wild life. Thut provision is:
"That no oity located on the tide water *6 Er. I.. L. Germ, ?Aareh 30, 1939, Page 6
shall discharge or permit to be disoharged sewerage, oil or any other effluents Into pub110 tide water8 of this Stats when suah discharge will become a menaoe to or on&an- pars the otster beds or fish life in suoh waters....C
The infomatlon does not expressly or by In- ference charge e vlolatfon of the above quoted provi- 81 cr.* :
ln view of the foregoing statutes, you are respeotfully advised that it la the opinion of this Department that money oolleeted as fines &a' oaaea pro- aeouted under krtiole 698 of the Penal Cede should be deposited with the County Treaeurer In the county *hera auoh oaaea are tried after deduotlon of the legal faa8 ooncnIesIons ellowad foroolleoting the aama and that the &me, Fish and Oyster ComsAesIon Is not an- tltled to sny part of suoh fines exoept in aasea when there Is a viol&Ion of the Wee and Fish Lawe and the oomplaint and fnformatlon ia filed oharglng auoh riola- ti one.
Trusting that the for*gofne answera your in- quiry, we relaaln
Very truly youre BJw/G2i..IA Ardell "illfans hsel.atant