State v. Rhine

¶1DISSENTING OPINION

¶2The trial court held that the Texas Legislature improperly delegated certain authority to an administrative commission, the Texas Commission on Environment Quality (TCEQ), with section 382.018 of the Texas Health and Safety Code.1 I would affirm the trial court’s judgment. Because the majority does not, I respectfully dissent from the majority opinion.

¶3As the majority provides, the legislature established criminal penalties for violation of the TCEQ directives banning burning of certain items under certain circumstances.2 The items and circumstances change according to some formula known only to the TCEQ. Apparently because the items and circumstances change so often, the majority concludes that

it is neither practical nor efficient for the Texas Legislature, which meets every other year for a few months, to determine exactly what materials should be banned from outdoor burning, and under what circumstances, including the wind speed, time of day, and other minutia related to curbing the legislatively-defined “air pollution.”3

¶4If the legislature cannot keep up with the constantly changing determination of what is unlawful, how does an ordinary person have notice of what is prohibited?

Article III, § 1 of the Texas Constitution delegates to the Legislature lawmaking authority including the right to define crime and fix penalties therefor.

It is well established that the fixing of penalties and the punishment for offenses under the penal laws of the State is within the exclusive domain of the Legislature.4

¶5This authority may not properly be delegated to or assumed by another branch of government or commission except where expressly permitted in the Constitution.5

¶6*754Were the penalty a sanction short of imprisonment, this improper delegation would be less dangerous. But the penalty for a violation of the TCEQ’s burn ban of the day is imprisonment for up to 180 days and/or a fine ranging from $1,000 to $50,000.6 Clearly this is an issue of improper delegation of penal legislation, yet the majority addresses the issue only in terms of civil law. I submit that existing criminal law should at least be considered. But even if we look to the teachings of the Supreme Court of Texas, we are instructed that “[t]he power to make laws is vested through the Constitution in the Legislature. This power gives the Legislature the right to define crimes and the punishment therefor, and this is done by statute.” 7

¶7In Ex parte Leslie, the Texas Court of Criminal Appeals invalidated a statute empowering the livestock commission to create a penal offense for failing to dip cattle for fever ticks, holding that the law failed to reasonably guide the commissioner in defining the elements of the offense.8

¶8Because the legislature has delegated to the TCEQ — a commission created by the executive branch — the authority to define the elements of a crime that carries a penalty of up to 180 days’ confinement, I would hold, as did the trial court, that this is an improper delegation of authority granted only to the legislature by our Constitution and affirm the trial court’s judgment. Because the majority does not, I respectfully dissent.