Untitled Texas Attorney General Opinion ( 1948 )

AUSTIN. TEXAS
December 23, 1948
Hon. Sam Lee Opinion No. v-757
County Attorney
Brazoria County Re: The sufficiency of the sub-
Angleton, Texas mitted form of complaint
and the necessity of alleg-
ing that an act was "know-
ingly and willfullyW done
to charge a violation of
Article 69Sb, V. P. C.
Dear Mr. Lee:
Your request for an opinion is substantially
as follows:
"In this county, we have many corpora-
tions, which from time to time, are charged
with polluting streams. It has been the cus-
tom of this office to file on the corporation
as well as the employee who was in charge of
the field at the time the pollution occurred.
I: was felt that filing on the corporation
would be the most effective way of combating
this situation.
and I would like your opinion as to whether
or not this complaint is sufficient urder
the existing statute.
WThis complaint has been attacked from
time to time, ‘but never in the court of crim-
inal ap eals, because the same alleges, 'did
then ani there unlawfully pollute a ublic
body of surface water' and did not fnclude
the words 'Intentionally' or 'knowingly'.
tentionally' or 'knowingly' or should both
of them or either of them be used in the com-
plaint?
Hon. Sam Lee, Page 2 (V-757)
"Of course, there are many cases in which
the State cannot prove that a stream was in-
tentionally or knowingly polluted, but the
facts developed will show that the water
course or public body of water was polluted
because of the negligence of the corporation
or its employee. IN SUCH CASES, IS IT RECES-
SARY TO ALLEGE THAT THE DEFENDANT DID TBEN
AND THERE UNLAWFULLY AND NEGLIGENTLY POLLWlE
TBE BODY OF SURFACE WATER?
"My third question is, in negligent cas-
es, whether or not the word 'negligent' should
be used in drawing the complaint.
"In the event that the case is based
upon negligence, is the within complaint suf-
ficient or would it be sufficient if the word
'negligently' was included therein or would
the various acts of negligence have to be set
out and then it pled that suoh negligence was
the proximate cause of the pollution, as in a
civil case.
"Is it necessary that in charging a cor-
poration with the offense of pollution, that
it be alleged that the corporation committed
the offense by and through its agents, ser-
vants or employee, or is the method of plead-
ing the same as set forth in the enclosed af-
fidavit sufficient."
Generally, knowledge must be alleged and
proved where the statute requires the prohibited act to
be done "knowingly" at&knowledge of a fact may be es-
sential to a conviction, although the word "knowingly"
is not used in the Statute creating the offense, where
the language use~dis such as necessarily to imply that
want of knowledge will excuse compliance with a stat-
utc . "gnawingly" as used in an enactment making it an H.
offense knowingly to do a particular thing means that
the act must have been done with the knowledge of the
person charged with the intent to commit the act. The
term is sometimes used as synonymous with "willfully"
although the latter word is of more extensive meaning.
(12 Tex. Jur. p. 262) See Johnson v. State, 275 S.W.
714; State v. West, 10 Tex. 553.
In the case of Ham v. State, 40 S. W. 2d, 152,
the Court stated as follows:
"In the count of the indictment upon
Hon. Sam Lee, Page 3 (V-757)
which the conviction rests, it is charged
that the accused 'did then and there unlaw-
fully transport a still for the manufacture
of intoxicating liquor., The statute ,ae-
clares that it shall be unlawful to 'know-
ingly, transport a still for the manufacture
of intoxicating beverages. The omission of
the word ,knowingly, is deemed fatal to the
sufficiency of the indictment. The word
'knowingly, is one of the essential elements
of the offense denounced. When the word
,knowingly, is an essential element of the
offense, it is necessary that the indictment
declare that the criminal act was 'knowingly,
committed. Such is the .announcementin
Branoh's Ann. Tex. P. C.~,8@1490-500. The
cases of State v. Stalls, 37 Tex. 440;~State
v. Arnold, 39 Tex 75; Tynes v."State, 17
Tex. App. 127; Morris v. State, 93 Tex. Cr.
R. 99, 245 S.W. 915, are regarded as direct-
ly in point. By analogy, those in which the
indictment has omitted the word 'wilfully,
are in point, see Johnson v. State, 101 Tex.
Cr. B. 217, 275 S.W. 714; Moore v. State,
112 Tex. Cr. R. 414, 16 S. W. (2d) 1089;
Woolsey v. State,'14 Tex. App. 57; Uecker v.
State, 4 Tex. App. 234. The word 'unlawful-
ly, as used in the indictment is not equiva-
lent to the word ,knowingly, as used in the,
statute. See State v. Stalls, supra, and
other cases cited above. One might be unlaw-
fully transporting a still for the manufac-
ture of intoxicating liquor, and yet not
knowingly doing so. Modica v. State, 105 Tex.
Cr. R.~39, 285 S.W. 823."
Article 698b, Vernon's Penal Code, does not
in any manner use the word "knowingly" or "willfully,"
while the Act prior to 6981,container?a statement that
"each day such pollution is knowingly caused or permit-
ted shall cause a separate offense.,, (Art. 698 V.P.C.)
The form of complaint submitted by you is
comparable to the complaint used in the case of Myers
v. State, 184 s. w. Zd, 924. An examination of the
complaint now on file in the Court of Criminal Appeals,
Austin, Texas, revealed that the words "knowingly, in-
tentionally, willfully and negligently,,were omitted
and that the complaint charged an offense in the manner
set forth in the statute. It is to be noted that the
Court in the above case in its concluding statement said,
Hon. Sam Lee, Page 4 (V-757)
"The Court properly overruled the attack msde on the .
complaint.,, The Court concluded that Section 5 of.,
the Pollution Aat needed clarification and this was
done by the 49th Legislature, 1945, in H. B. 278.
Many oases passed upon by the Court of Crlm-
inal Appeals prior to the opinionrendered in Myers v.
State, supra, were predicated upon Article 698 (re-
pealed) V. P. C., which contained the words, "Each day
such pollution is knowingly caused or permLtted shall
constitute a separate offense." It is our opinion
that this is the distinguishing feature between the
cases rendered under Article 698, V. P. C., and 698b,
v. P. c.;,that is, if the statute contains the words'
nknowinglg and willfully,R then the same must be al-
leged in the complaint charging such offense; but if
the statute is silent as to .suchwords, then there is
no necessity for such allegation.
For the construction placed upon Article 698
and 698a, (repealed) V:P. C., see Stephenson v. Btate,
167 S.W. 26, 1027; Bell v. State, 99 S.W. 26 940;
Jackson v~.State, 93's. W. 2d 1141.
By virtue of the foregoing authorities, it is
our opinion that an offense under Article 6,98b,V. P. C.,
need not allege .that the same was "knowingly, willful-
ly or negligently" done, butthe same should be charged
in the language of the statute; that is, that he did throw,
discharge, or otherwise permit the same to be done, etc.
Further, it is our opinion that'the atta'chedcomplaint is
a valid one, and sufficiently charges an offense wi,thin
the provisions of Artiole 698b, V. P. C.
SUMMARY
In the absence of a provision to such
effect, there is no necessity for the words
wwillfully, knowingly, and'negligently" to '
be alleged in a complaint to charge anof-
fense under Article 698b, V. P. C., relative
to pollution of streams.
Very truly yours,
APPROVE& ATTORNEY GENERAL.OF TEXAS
Burnell Waldrep
Assistant