                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-319-CR


THE STATE OF TEXAS                                                   STATE

                                             V.

MICHAEL JOSEPH RHINE                                              APPELLEE

                                         ------------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                         ------------

                         MEMORANDUM OPINION 1

                                         ------------

                                  I. Introduction

     In one issue, the State of Texas asserts that the trial court erred by

granting the Defendant’s Motion to Quash Information and thereby agreeing

with Michael Joseph Rhine’s argument that the Texas Legislature’s delegation

of certain duties to the Texas Commission on Environmental Quality (“TCEQ”),



     1
         … See T EX. R. A PP. P. 47.4.
as conferred by section 382.018 of the Texas Health and Safety Code, violates

the “nondelegation doctrine.” We reverse and remand.

                      II. Factual and Procedural History

      Rhine admitted to starting a fire on July 8, 2005. The material contained

in the fire included crossties, fiberglass, tires, and PVC pipe. On December 12,

2006, Rhine was charged with violating subsection (a)(5) of section 7.177 of

the Texas Water Code, entitled “Violations of Clean Air Act.” T EX. W ATER C ODE

A NN. § 7.177(a)(5) (Vernon 2000). Rhine filed a motion to quash the

information, alleging this provision of the Texas Water Code is void in that the

legislature had unconstitutionally delegated authority to an executive branch

agency in violation of the nondelegation doctrine. After hearing the argument

of counsel, the trial court granted the motion. This appeal resulted.

                                III. Background

      The United States Environmental Protection Agency has set standards for

cleanliness of ambient air pursuant to the Federal Clean Air Act.        See 42

U.S.C.A. §§ 7401-7671 (West 1995 & Supp. 2003). One result of that act is

that states, including Texas, prepared written plans to meet these standards,

including legal standards limiting the emissions of contaminants. See id. §

7410(a)(2). Our state agency addressing the safeguarding of “the [S]tate’s air

resources from pollution by controlling or abating air pollution and emissions of

                                       2
air contaminants” is the Texas Commission on Environmental Quality. T EX .

H EALTH & S AFETY C ODE A NN. § 382.002 (Vernon 2001).

      The specific violation with which Rhine was charged reads as follows:

“(a) A person commits an offense if the person intentionally or knowingly, with

respect to the person’s conduct, violates: . . . (5) an order, permit, or

exemption issued or a rule adopted under Chapter 382, Health and Safety

Code.” T EX. W ATER C ODE A NN. § 7.177(a)(5). That chapter of the health and

safety code reads in part that “the commission by rule may control and prohibit

the outdoor burning of waste and combustible material and may include

requirements concerning the particular method to be used to control or abate

the emission of air contaminants resulting from that burning.” T EX. H EALTH &

S AFETY C ODE A NN. § 382.018(a) (Vernon Supp. 2007).

      Pursuant to the foregoing health and safety code provision, the TCEQ

enacted provisions of the Texas Administrative Code, which read: “[n]o person

may cause, suffer, allow, or permit any outdoor burning within the State of

Texas, except as provided by this subchapter or by orders or by permits of the

commission,” and has specifically prohibited the burning of “[e]lectrical

insulation, treated lumber, plastics, non-wood construction/demolition materials,

heavy oils, asphaltic materials, potentially explosive materials, chemical wastes,

and items containing natural or synthetic rubber. . . .” 30 T EX. A DMIN. C ODE §§

                                        3
111.201, 111.219(7) (West 2007). Burning prohibited materials is punishable

by a fine of not less than $1,000 or more than $50,000, and/or confinement

not to exceed 180 days. See T EX. W ATER C ODE A NN. § 7.177(b) (referencing §

7.187(1)(B)&(2)(C)).

        Thus, pursuant to the Federal Clean Air Act, the Texas Legislature has

sought by statute to control air pollution by prohibiting the outdoor burning of

waste and combustible material, and by setting penalties therefor. In doing so,

however, the legislature delegated authority to the TCEQ to determine precisely

which materials should be placed on the burn ban list. It is this delegation that

Rhine    successfully   argued   to   the   trial court was   prohibited   by   the

“nondelegation doctrine.”

                             IV. Standard of Review

        Here, the record shows that the trial court had the following before it, in

ruling on Defendant’s Motion to Quash: the indictment, the motion to quash,

the State’s Reply to Defendant’s Motion to Quash Information, and the

arguments of counsel. “When the resolution of a question of law does not turn

on an evaluation of the credibility and demeanor of a witness, then the trial

court is not in a better position to make the determination, so appellate courts

should conduct a de novo review of the issue.” State v. Moff, 154 S.W.3d




                                            4
599, 601 (Tex. Crim. App. 2004). Therefore, we conduct a de novo review of

the trial court’s ruling. See id.

                        IV. The Nondelegation Doctrine

      A. Background

      The genesis of our nondelegation doctrine in Texas is Article II, Section

1 of the Texas Constitution of 1876, which reads:

      Sec. 1. The powers of the Government of the State of Texas shall
      be divided into three distinct departments, each of which shall be
      confided to a separate body of magistracy, to wit: Those which are
      Legislative to one; those which are Executive to another, and those
      which are Judicial to another; and no person, or collection of
      persons, being of one of these departments, shall exercise any
      power properly attached to either of the others, except in the
      instances herein expressly permitted.

T EX. C ONST. art. II, § 1. Simply put,“[t]he power to pass laws rests with the

Legislature, and that power cannot be delegated to some commission or other

tribunal.” Brown v. Humble Oil & Refining Co., 126 Tex. 296, 306, 83 S.W.2d

935, 941 (1935); see also Williams v. Castleman, 112 Tex. 193, 198-99, 247

S.W. 263, 265 (1922) (“[T]he primary rule of interpreting and construing the

Constitution is to ascertain the intention of the people in adopting it, and [to]

give it effect to that intention.”); accord Lanford v. Fourteenth Court of

Appeals, 847 S.W. 581, 585 (Tex. Crim. App. 1993).




                                       5
      Eleven years ago, the Texas Supreme Court discussed the origin and

application of this doctrine at length in Texas Boll Weevil Eradication

Foundation, Inc. v. Lewellen, 952 S.W .2d 454 (Tex. 1997).            The court

observed that, in our complex society, it is not possible for the Legislature to

shoulder the burden of drafting the infinite minutiae required to implement every

single law necessary to adequately govern the State of Texas:

      Yet, like many truisms, these blanket pronouncements [of the
      nondelegation doctrine] should not be read too literally. Even in a
      simple society, a legislative body would be hard put to contend
      with every detail involved in carrying out its laws; in a complex
      society it is absolutely impossible to do so. Hence, legislative
      delegation of power to enforce and apply law is both necessary and
      proper. Such power must almost always be exercised with a
      certain amount of discretion, and at times the line between making
      laws and enforcing them may blur.

Id. at 466 (citation omitted). The Court observed from a historical perspective,

      Even in its heyday, the nondelegation doctrine was sparingly
      applied, having been used by the United States Supreme Court to
      strike down a federal statute only three times. Since the Court
      retreated from its opposition to New Deal initiatives, it has
      consistently upheld congressional delegations. Texas courts have
      also generally upheld legislative delegations to state or municipal
      agencies. We most recently [noted that] . . . the Texas Legislature
      may delegate its powers to agencies established to carry out
      legislative purposes, as long as it establishes “reasonable standards
      to guide the entity to which the powers are delegated. Requiring
      the legislature to include every detail and anticipate unforeseen
      circumstances would . . . defeat the purpose of delegating
      legislative authority.” The separation of powers clause [T EX.
      C ONST. art. II, § 1] requires that the standards of delegation be


                                       6
      “reasonably clear and hence acceptable as a standard of
      measurement.”

Id. at 467 (citations omitted). The Court goes on to cite twenty-one separate

Texas cases, both civil and criminal, regarding such delegation. Id. at 467-68.

When the nondelegation doctrine has been upheld in Texas, it has often been

premised on a vagueness with regard to the reasonable standards provided by

the Legislature, or involved delegations to the judicial branch. See, e.g., Tex.

Antiquities Comm. v. Dallas County Comty. Coll. Dist., 554 S.W.2d 924 (Tex.

1977); Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972); Chem. Bank & Trust

Co. v. Falkner, 369 S.W.2d 427 (Tex. 1963); Davis v. City of Lubbock, 160

Tex. 38, 326 S.W.2d 699 (1959); Daniel v. Tyrrell & Garth Inv. Co., 127 Tex.

213, 93 S.W.2d 372 (1936); Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W.

227 (1920); see also Ex parte Maynard, 101 Tex. Crim. 256, 275 S.W. 1070

(1924); Ex parte Humphrey, 92 Tex. Crim. 501, 244 S.W. 822 (1922); Int’l

Ass’n of Firefighters, Local Union No. 2390 v. City of Kingsville, 568 S.W.2d

391 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.); In re Johnson, 554

S.W.2d 775 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.).




                                       7
      B. Public or Private

      An initial determination that must be made in deciding whether the

nondelegation doctrine applies is whether the legislative delegation was to a

public or private entity, because

      private delegations clearly raise even more troubling constitutional
      issues than their public counterparts . . . [since] the basic concept
      of democratic rule under a republican form of government is
      compromised when public powers are abandoned to those who are
      neither elected by the people, appointed by a public official or
      entity, nor employed by the government.

Lewellen, 952 S.W.2d at 469.

      The State presents nine reasons why the TCEQ should be considered a

public entity.2 Those reasons are as follows:

      (1) the commission is subject to the Texas Sunset Act, and unless
      continued in existence as provided in Chapter 5 of the Texas Water
      Code, the commission is abolished and the chapter would expire
      (See T EX. W ATER C ODE A NN. § 5.014 (Vernon 2000));

      (2) the commission is composed of three members appointed by
      the governor, with the advice and consent of the senate (See T EX.
      W ATER C ODE A NN. § 5.052 (Vernon Supp. 2007));

      (3) each member of the commission is an officer of the state, as
      the term is used in the constitution, and each member shall take
      the official oath of office (See T EX. W ATER C ODE A NN . § 5.055
      (Vernon 2000));




      2
          … Rhine does not address, and hence does not dispute, this assertion.


                                        8
      (4) the commission must comply with Section 2001.004 of the
      Government Code, by indexing and making available for public
      inspection all rules and other written statements of policy or
      interpretations formulated, adopted, or used by the commission in
      the discharge of its functions, and all final orders, decisions, and
      opinions (See T EX. W ATER C ODE A NN. § 5.121 (Vernon 2000));

      (5) the financial transactions of the commission are subject to audit
      by the state auditor in accordance with Chapter 321 of the
      Government Code (See T EX. W ATER C ODE A NN. § 5.171 (Vernon
      2000));

      (6) the commission shall have a seal bearing the words Texas
      Natural Resources Conservation Commission (now TCEQ) encircling
      the oak and olive branches common to other official seals (See T EX.
      W ATER C ODE A NN. § 5.179 (Vernon 2000));

      (7) the TCEQ Operating Fund is established in the treasury (See
      T EX. W ATER C ODE A NN. § 5.237 (Vernon 2000));

      (8) judicial review of commission acts is allowed (See T EX. W ATER
      C ODE A NN. § 5.351 (Vernon 2000)); and

      (9) the Water Code does not waive TCEQ’s sovereign immunity
      from suit (See Tex. Natural Res. Conservation Comm’n v. IT-Davy,
      74 S.W.3d 849, 859 (Tex. 2002)).

      In Lewellen, our supreme court enumerated several factors that it

considered in determining whether a foundation was a public or private entity

for purposes of the nondelegation doctrine. Those private and public factors

are as follows:

      Private-
      1. the funds collected are not required to be deposited in the state
      treasury;


                                       9
      2. the funds collected are not subject to state purchasing or audit
      requirements;

      3. the board members are not required to take oaths of office; and

      4. no provision is made for administrative appeal from board
      decisions.

      Public-
      1. the commission is exempt from taxation and board members are
      afforded state indemnification;

      2. the board members, officers, and employees have official
      immunity except for gross negligence, criminal conduct, or
      dishonesty;

      3. the commission must adopt and publish its rules in accordance
      with state requirements;

      4. the commission may be dissolved by the Commissioner when its
      purpose has been fulfilled;

      5. the commission is subject to the Texas Sunset Act; and

      6. the Legislature specifically denominates the commission as a
      “governmental unit.”

See Lewellen, 952 S.W.2d at 470.

      Considering the purpose and spirit behind the private/public determination

in Lewellen and the reasons urged by the State regarding the TCEQ’s public

nature, we hold that for purposes of the nondelegation doctrine, the TCEQ is

a public entity, and hence the heightened scrutiny applied to a private

delegation is inapplicable.


                                      10
                                 V. Application

      A. Classifications

      There are at least six classifications of delegations of legislative

responsibility which do not run afoul of the nondelegation doctrine enunciated

in Article II, section 1 of our state’s constitution. See Hous. Auth. of City of

Dallas v. Higginbotham, 135 Tex. 158, 171-72, 143 S.W.2d 79, 87 (1940).

Rhine asserts that the first of these six classifications is the only one that is

ever potentially applicable in this case, and that the nature of the delegation to

the TCEQ does not fit under this sole possibility. That classification exists

when “the legislature because of the nature of the subject of legislation cannot

practically and efficiently exercise such powers.” Id. at 171, 143 S.W.2d at

87. Rhine argues two reasons why the legislature’s delegation in this case

under that circumstance fails: First, there is no evidence to suggest that “the

nature of the subject of legislation” could not have been “practically and

efficiently exercise[d]” by the Texas Legislature. Second, section 382.018 of

the Texas Health and Safety Code provides no definitions, and with few

exceptions, places no limitations upon the TCEQ’s authority to promulgate rules

that establish criminal violations.




                                       11
      B. Standards in General

      Our supreme court has told us that for a commission to promulgate rules,

regulations, and orders, it is necessary to have a well-defined standard or rule

in the applicable statute. See Brown, 126 Tex. at 306, 83 S.W.2d at 941.

Likewise, the agency or commission must not exceed its rule making authority,

that is, in “exercising the powers and the broad authority granted by the

Legislature, the only requirement is that rules and regulations must be

consistent with the Constitution and Statutes of this State.” Gerst v. Oak Cliff

Sav. & Loan Ass’n, 432 S.W.2d 702, 706 (Tex. 1968); see Dallas County Bail

Bond Bd. v. Stein, 771 S.W.2d 577, 580 (Tex. App.—Dallas 1989, writ

denied); State Bd. of Ins. v. Deffebach, 631 S.W.2d 794, 798 (Tex.

App.—Austin 1982, writ ref’d n.r.e.).

      The legislature may delegate to a subordinate body a duty to administer

and enforce its legislative functions, but must insure that the statute delegating

such power contains definite guidelines and must prescribe sufficient standards

to guide the discretion conferred. In re Johnson, 554 S.W.2d at 780-81. The

standards must be reasonably clear and            acceptable as standards of

measurement. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 741

(Tex. 1995).




                                       12
      C. The Legislative Acts

      So what exactly was the TCEQ empowered to do? This is set forth in

subchapter B of section 382 of the Health and Safety Code:

      (a) The commission shall:

            (1) administer this chapter;

            (2) establish the level of quality to be maintained in the
            state’s air; and

            (3) control the quality of the state’s air.

      (b) The commission shall seek to accomplish the purposes of this
      chapter through the control of air contaminants by all practical and
      economically feasible methods.

      (c) The commission has the powers necessary or convenient to
      carry out its responsibilities.

T EX. H EALTH & S AFETY C ODE A NN. § 382.011. And, as previously discussed, the

legislature promulgated the consequences for violating the rules and regulations

set by the commission. See T EX. W ATER C ODE A NN. § 7.177.

      D. The Legislative Standards

      The overall policy and purpose of the Texas Clean Air Act, which confers

on the TCEQ certain rule making authority, is set forth as follows:

      (a) The policy of this state and the purpose of this chapter are to
      safeguard the state’s air resources from pollution by controlling or
      abating air pollution and emissions of air contaminants, consistent
      with the protection of public health, general welfare, and physical


                                       13
      property, including the esthetic enjoyment of air resources by the
      public and the maintenance of adequate visibility.

      (b) It is intended that this chapter be vigorously enforced and that
      violations of this chapter or any rule or order of the [TCEQ] result
      in expeditious initiation of enforcement actions as provided by this
      chapter.

T EX. H EALTH & S AFETY C ODE A NN . § 382.002(a), (b) (Vernon 2001).          The

legislature has provided definitions of “air contaminant” and “air pollution”; has

provided for various reporting procedures, such as instructing the commission

to prepare and develop a plan for control of the state’s air, designate air quality

control regions, obtain information to develop an inventory of air contaminants;

and has given the commission certain powers to enable it to accomplish these

tasks and implement its overall mission. See generally id. §§ 382.003-.016.

Specifically at issue here is the legislature’s delegation to the TCEQ of authority

to control outdoor burning of waste and combustible materials.          See id. §

382.018.    In response, and pursuant to this delegation, the TCEQ then

enumerated a short list of items that it prohibited from burning, and which, in

part, Rhine was alleged to have violated. See 30 T EX. A DMIN. C ODE § 111.219




                                        14
(West 2007) (entitled “General Requirements for Allowable Outdoor Burning.”) 3




      Rhine’s first complaint regarding the delegation is that there is no

evidence that the nature of the subject of the legislation could not have been

practically and efficiently exercised by the Texas Legislature. We disagree. We

hold 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 minutiae related to curbing the

legislatively-defined “air pollution.”

      Rhine’s second complaint is as follows:

      Section 382.018 of the Texas Health and Safety Code provides no
      definitions, and with very few exceptions places no limitations
      upon, the TCEQ’s authority to promulgate rules that establish
      criminal violations, including those amenable to prosecution under
      Texas Water Code, Section 7.177(a)(5).
             While Section 382.018 does mandate limited circumstances
      wherein the Commissioner “shall authorize outdoor burning”
      notwithstanding the delegation, and does describe limited
      circumstances wherein the TCEQ “may not control or prohibit out
      door burning,” the delegation does not contain sufficient guidance




      3
      … In addition, this code section also touches on certain notifications to
the Texas Forest Service, exceptions for city ordinances, wind direction and
meteorological factors, stationing of flag-persons on roads, and other
meteorological and timing considerations including wind speed. Id.

                                         15
         concerning what conduct may be prohibited (and made a criminal
         offense) under the power delegated.

Again we disagree.       First, the key phrase in section 382.018(a), “air

contaminants,” is defined in section 382.003(2). See T EX. H EALTH & S AFETY

C ODE A NN. § 382.003(2). Second, section 382.018(b) discusses when and

under what circumstances, the commission shall authorize outdoor burning. Id.

§ 382.018(b). Third, section 382.018(c) limits the commission’s authority

under section 382.018(b).      Id. § 382.018(c).   Fourth, section 382.018(d)

further limits the circumstances under which the commission can control certain

types of outdoor burning under 382.018(b). Id. § 382.018(d). Fifth, section

382.018(e) requires notification of TCEQ under certain situations that involve

the supervised burning of waste.      Id. § 382.018(e).   W e hold that these

limitations and guidelines, along with our reasoning addressing Rhine’s first

complaint, compel us to the conclusion that his second complaint is without

merit.




                                      16
                                VI. Conclusion

      We sustain the State’s point and hold that the trial court erred by granting

Defendant’s Motion to Quash Information based on the premise that there was

an unconstitutional delegation of authority by the legislature to an executive

agency in violation of Article II, Section 1 of the Texas Constitution of 1876.

The case is reversed and remanded to the trial court for further proceedings.




                                            BOB MCCOY
                                            JUSTICE

PANEL B:    DAUPHINOT, GARDNER, and MCCOY, JJ.

DAUPHINOT, J. dissents with opinion.

PUBLISH

DELIVERED: May 1, 2008




                                       17
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NO. 2-07-319-CR


THE STATE OF TEXAS                                                        STATE

                                         V.

MICHAEL JOSEPH RHINE                                                   APPELLEE

                                     ------------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                     ------------

                            DISSENTING OPINION

                                     ------------

      The 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. 4 I would affirm the trial court’s judgment. Because the majority

does not, I respectfully dissent from the majority opinion.


      4
          … T EX. H EALTH & S AFETY C ODE A NN. § 382.018 (Vernon Supp. 2007).
      As the majority provides, the legislature established criminal penalties for

violation of the TCEQ directives banning burning of certain items under certain

circumstances.5      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.” 6

If 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 law-making 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.7

This authority may not properly be delegated to or assumed by another branch


      5
          … Majority op. at 4, 13.
      6
          … Id. at 15.
      7
        … Ex parte Hayward, 711 S.W.2d 652, 655 (Tex. Crim. App. 1986); see
also T EX. C ONST. art. III, § 1.

                                        2
of government or commission except where expressly permitted in the

Constitution.8

      Were 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 $50,000.9            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.” 10

      In     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




      8
      … See Ex parte Humphrey, 92 Tex. Crim. 501, 244 S.W. 822, 824
(1922).
      9
      … See T EX. W ATER C ODE A NN. §§ 7.177(b), 7.187(1)(B), (2)(C) (Vernon
2000).
      10
           … Dendy v. Wilson, 179 S.W.2d 269, 273 (Tex. 1944).

                                        3
guide the commissioner in defining the elements of the offense.11

      Because 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.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PUBLISH

DELIVERED: May 1, 2008




      11
           … Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W. 227, 227, 230 (1920).

                                        4
