                                 Office of the Elttornep QBeneral
                                                 $&ate   of PCexae
DAN MORALES
 ATTORNEY
      CENERAL                                      April 14,1998


   Mr. Barry R. McBee                                Opinion No. DM-474
   Chair, Texas Natural Resource
    Conservation Commission                          Re: Whether Water Code section 5.123, as enacted by
   P.O. Box 13087                                    Act of May 24, 1997, 75th Leg., R.S., ch. 1203, § 1,
   Austin, Texas 7871 l-3087                         violates the suspension of laws and separation of
                                                     powers provisions of the Texas Constitution (RQ-975)

   Dear Mr. McBee:

            You ask whether Water Code section 5.123,’ a recently enacted stat&? authorizing the Texas
   Natural Resource Conservation Commission (“TNRCC” or the “commission”) to grant exemptions
   to statutes and commission rules regarding pollution control or abatement, violates the suspension
   of laws’ and separation of powers4 provisions of the Texas Constitution. For the following reasons,
   we conclude that section 5.123 does not run afoul of these provisions.

           Chapter 5 of the Water Code establishes the TNRCC and sets forth its general powers and
   duties. Section 5.123 provides in pertinent as follows:

                   (a) The commission      by order may exempt an applicant from a
               requirement    of a statute or commission rule regarding the control or
               abatement of pollution if the applicant proposes to control or abate pollution
               by an alternative method or by applying an alternative standard that is:

                          (1) at least as protective of the environment and the public health as
                      the method or standard prescribed by the statute or commission rule that
                      would otherwise apply; and

                          (2) not inconsistent   with federal law,




           ‘As enacted by Act of May 24, 1991,7Sth   Leg., RX, ch. 1203, !j 1, 1997 Tex. Sess. Law Serv. 4621,462l.

           ‘See id.

           ‘Tex. Const. art. I, $ 28.

           ‘Tex. Const. art. II, 9 1.
    Mr. Barry R. McBee      - Page 2                (DM-474)


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                   (b) The commission by rule shall specify the procedure for obtaining an
               exemption under this section. The rules must provide for public notice and
               for public participation in a proceeding involving an application for an
               exemption under this section.

                    (c) The commission’s order must provide a specific description of the
               alternative method or standard and condition the exemption on compliance
               with the method or standard as the order prescribes.

                    . . .


                   (e) A violation of an order issued under this section is punishable as if it
               were a violation of the statute or rule from which the order grants an
               exemption.

              We begin with your question about the prohibition against suspension of laws. Article I,
    section 28 of the Texas Constitution provides that “[n]o power of suspending laws in this State shall
    be exercised except by the Legislature.” Section 28 prohibits the legislature from delegating the
    power to suspend laws.’ Courts have held that section 28 does not preclude the legislature from
    authorizing an administrative agency to grant exceptions to statutory requirements, however,
    provided that the agency’s discretion is limited ~ or, in other words, that the delegation of authority
    is valid under article II, section 1 of the Texas Constitution. Thus, for example, in Sproles v. Binford
    the United States Supreme Court considered a section 28 challenge to a Texas statute that generally
    prohibited the operation of overweight and oversize vehicles but authorized the former Texas
    Highway Department to grant carriers time-limited permits to transport overweight or oversize
    commodities “as cannot be reasonably be dismantled” under certain conditions. Sproles v. Binford,
    286 U.S. 374,380 n.l,397 (1932). The court concluded that “the authority given to the department
    is not to suspend the law, but is of a fact-finding and administrative nature.” Id. at 397 (citing
     Trimmier Y. Carlton, 296 S.W. 1070 (Tex. 1927)). The court went on to conclude that the statute
    was a constitutional delegation of legislative power. Id. This reasoning has been adopted by at least
    two Texas courts faced with section 28 challenges to statutes authorizing administrative agencies
    to grant exceptions to statutory requirements.      See Williams v. State, 176 S.W.2d 177 (Tex. Crim.
    App. 1943) (upholding statute authorizing commissioner of agriculture to promulgate rules making
     exceptions to boll weevil eradication statute prohibiting cotton farming in regulated zones); State
    Bd. of Ins. v. Sam Houston Life Ins. Co., 344 S.W.2d 709 (Tex. Civ. App.--Austin 1961, no writ)
     (upholding statute authorizing former Board of Insurance Commissioners to make exceptions to
     statutory tiling requirements).

             Section 5.123 authorizes the TNRCC to grant exemptions to statutory and regulatory
    pollution control or abatement requirements “if the applicant proposes to control or abate pollution
    by an alternative method or by applying an alternative standard that is at least as protective of the


            SMcDonald Y. Denton, 132 S.W. 823,825 (Tex. Civ. App. 1910, no writ).



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Mr. Barry R. McBee        - Page 3




environment and the public health as the method or standard prescribed by the statute or commission
rule that would otherwise apply.” An order under section 5.123 does not authorize its holder to
violate a pollution control or abatement statute. Rather, it authorizes the holder to comply with the
statute by another means that conforms with a legislatively prescribed standard,           The power
delegated to the TNRCC is not the power to suspend statutes but rather to determine whether
alternative methods of compliance satisfy the legislatively prescribed standard. We see no reason
why the legislature cannot delegate this authority to an administrative agency, provided that the
prescribed standard is sufficiently clear. See discussion of Tex. Const. art. II, 5 1 infra pp. 4-5.

         A brief submitted to this office suggests that Williams v. State, cited above, must be
distinguished   because in that case the Commissioner       of Agriculture was authorized to make
exceptions by rule whereas in this case the TNRCC is authorized to grant exemption orders on a
case-by-case basis. We disagree. First, we are not persuaded that there is a distinction for purposes
of section 28 between a statute authorizing an agency to make general exceptions to a statutory
requirement by rule and one authorizing an agency to make specific exceptions to a statutory
requirement by order. Section 5.123 mandates that TNRCC procedures for obtaining an exemption
must provide for public notice and for public participation in a proceeding involving an application
for an exemption,6 a process akin to mlemaking procedures.’ Furthermore, each order must comport
with the same basic standard that the approved alternative method or standard be “at least as
protective of the environment and the public health.“* While we appreciate that it may be a greater
challenge for the public to monitor and participate in an untold number of exemption proceedings
than to monitor and participate in a few rulemaking proceedings, we do not view this as a tenable
objection under section 28.

        Moreover, the section 28 cases cited above do not suggest that the manner in which an
agency is authorized to make exceptions to statutory requirements is significant. The Williams v.
State opinion does not make this distinction.   Moreover, in Sproles v. Binford the United States
Supreme Court clearly condoned legislation authorizing the state highway department to make
exceptions to general law by permits granted on a case-by-case basis. See also Sum Houston Life
Ins. Co., 344 S.W.2d 709 (condoning statute authorizing Board of Insurance Commissioners to make
by order case-by-case exceptions to statutory tiling requirements).

         Section 5.123 is unique in its scope. Unlike the statutes at issue in the cases discussed above,
it does not authorize the TNRCC to make exemptions to just one statute. Rather, it authorizes the
commission to make exemptions to a broad class of statutes. We do not believe this difference is
significant for purposes of section 28, however. Clearly, the legislature would not run afoul of the
suspension of laws provision if it amended a particular pollution control or abatement statute to



        6Water Code 5 5.123(b).

        ‘See Gov’t Code ch. 2001, subchap. B (Administrative           Procedure   Act provisions   governing     mlemaking).

        *See also discussion   of local and special laws and equal protection       guarantees   infia pp. 5-6.




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Mr. Barry R. McBee     - Page 4                 (DM-474)




authorize the TNRCC to grant applications permitting compliance by alternative means that conform
with a particular standard. The potential magnitude of statutes and commission rules affected by
section 5.123 does not transform the statute into a suspension of laws. While the broad scope of
section 5.123 may have unique policy implications, it is not our role to evaluate the wisdom of the
legislature’s policy choices. Based on the cases discussed above, we conclude that section 5.123
does not authorize the TNRCC to suspend laws and thus does not violate article I, section 28.

          Next, we address whether section 5.123 is a valid delegation of legislative authority. Article
II, section 1, the separation of powers provision, requires that any delegation of legislative authority
to an administrative       agency be “‘reasonably clear and hence acceptable as a standard of
measurement.“’ Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454,467 (Tex.
 1997). As the Texas Supreme Court recently stated,

                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.” Railroad Comm ‘n v.
            Lone State Gas Co., 844 S.W.2d 679,689 (Tex. 1992) (quoting State v. Texas
            Mm. Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App.--Houston [lst
            Dist.] 1978, writ dism’d)). “Requiring the legislature to include every detail
            and anticipate unforeseen circumstances would             defeat the purpose of
            delegating legislative authority.” Id.

Edgewoodlndep. Sch. Dist. v. Meno, 917 S.W.2d 717,740 (Tex. 1995). Texas courts have generally
upheld delegations of legislative authority, Lewellen, 952 S.W.2d at 467-68, except in cases where
the delegation is so vague that it provides no legislative standards, id. at 468-69.

         More particularly in the area of environmental and public health regulation, courts have
concluded that broad standards provide sufficient guidance for administrative agencies to properly
exercise delegated legislative authority. See, e.g., Railroad Comm ‘n of Texas v. Lone Star Gas Co.,
844 S.W.2d 679 (Tex. 1992) (approving standards delegating authority to Railroad Commission to
prevent waste and promote conservation); Trapp v. Shell Oil Co., 198 S.W.2d 424,438 (Tex. 1946)
(upholding legislative delegation of authority to Railroad Commission to conserve oil and gas);
Med-Safe, Inc. Y. State, 752 S.W.2d 638, 640 (Tex. Civ. App.--Houston [lst Dist.] 1988, no writ)
(upholding delegation of authority to Department of Health to license solid waste disposal sites to
“safeguard the health, welfare and physical property of the people” and to “protect the
environment”);    Beall Medical Surgical Clinic & Hosp., Inc. v. Texas State Bd. of Health, 364
S.W.2d 755, 756-57 (Tex. Civ. App.--Dallas 1963, no writ) (upholding delegation of legislative
authority to state board of health to license hospitals to “promote the public health and welfare by
providing for the development,       establishment,   and enforcement of certain standards in the
construction, maintenance, and operation of hospitals”); Clark v. Brisoe Irrigation Co., 200 S.W.2d
674, 682-85 (Tex. Civ. App.--Austin 1947, writ dism’d) (upholding delegation of legislative
authority to board of water engineers to determine whether permit application “detrimental to the
public welfare”).



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    Mr. Barry R. McBee     - Page 5                  (DM-474)




              Section 5.123 authorizes the TNRCC to grant exemptions to pollution abatement statutes and
    rules to applicants who propose to abate pollution by alternative methods provided that the
    alternative method is “at least as protective of the environment and the public health as the method
    or standard prescribed by the statute or commission rule that would otherwise apply.” This
    delegation of authority articulates a broad standard comparable to the broad standards approved in
    the authorities cited above. While there may be some debate whether a particular alternative method
    satisfies the requirement that it be “at least as protective of the environment and the public health
    as the method or standard prescribed by the statute or commission rule that would otherwise apply,”
    we believe a court would conclude that this language satisfies the dictates of article II, section 1.

            Assuming section 5.123 does not authorize the TNRCC to suspend the law and is a
    permissible delegation of legislative authority, you also ask if “the exemption [may] be granted on
    a case-by-case basis, as contemplated by [section 5.1231, or would it have to be a ‘general’
    suspension?’ We agree that section 5.123 contemplates that exemptions will be made on a case-by-
    case basis, but are not sure of the nature of your concern. Following your question, you cite
    McDonald v. Denton, 132 S.W. 823 (Tex. Civ. App. 1910), a case involving a City of Houston
    attempt to permit prostitution in a limited area, which explores the legislature’s authority to suspend
    laws:

-
                It is the general rule that the Legislature, although given the power of
                suspending the operation of the general laws of the state, must make the
                suspension general, and cannot suspend them for individual cases or for
                particular localities.      The Legislature of Texas itself could not have
                suspended such laws in a part or the whole of the city of Houston, and, of
                course, it cannot empower the municipal government to do so.

    Id. at 824-25. In addition to articulating the principle that only the legislature may suspend the law,
    McDonald also recognizes the limitation on legislative power embodied in article III, section 56 of
    the Texas Constitution -the prohibition against legislative enactment of local and special laws.
    Given that you have already asked whether section 5.123 suspends the law, we assume you intend
    to ask whether section 5.123 is a local or special law contrary to article III, section 56.

            The Texas Supreme       Court recently explained the meaning of the terms “local law” and
    “special law” as follows:

                While the terms     “local law” and “special law” have at times been used
                interchangeably,   a local law is one limited to a specific geographic region of
                the State, while    a special law is limited to a particular class of persons
                distinguished by   some characteristic other than geography. See 1 GEORGED.
                BRADEN,THECONSTITUTION
                                     OFTHESTATEOFTEXAS: AN ANNOTATED
                                                                   AND
                COMPARATIVE
                          ANALYSIS273-277 (1977).




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                         The purpose of Section 56 is to “prevent the granting of special privileges
                    and to secure uniformity of law throughout the State as far as possible.”
                    [Miller v. El Paso County, 150 S.W.2d 1000, 1001 (Tex. 1941).] In
                    particular, it prevents lawmakers from engaging in the “reprehensible”
                    practice of trading votes for the advancement of personal rather than public
                    interests. Id.

    Maple Run at Austin Mm. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996).9 Section
    5.123 does not limit eligibility for pollution control or abatement exemptions to a specific
    geographic region or to a particular person or class of persons. On its face, section 5.123 is not a
    local or special law. We note, however, that the TNRCC, when adopting procedures for obtaining
    exemptions, granting exemptions, and monitoring compliance with exemption orders, must apply
    and enforce the law equitably. While the TNRCC is not the legislature and thus is not directly
    subject to article III, section 56, it must apply and enforce section 5.123 consistent with state and
    federal equal protection guarantees.‘O




             wile      the legislature   is authorized   to make classifications   for legislative   purposes,

                    “the classification must be broad enough to include a substantial class and must be based on
                    characteristics legitimately distinguishing such class from others with respect to the public
                    purpose sought to be accomplished by the proposed legislation.”        Miller, 150 S.W.2d at
                    1001-02. “The primary and ultimate test of whether a law is general OI special is whether
                    there is a reasonable basis for the classification made by the law, and whether the law
                    operates equally on all within the class.” Rodriguez Y. Gonzales, 148 Tex. 537,227 S.W.2d
                    791,793 (1950).

    Monaghan, 931 S.W.Zd at 945. Thus, “the ultimate question under Article III, Section 56 is whether there is a
    reasonable basis for the Legislature’s classification.         The significance of the subject matter and the number of
    persons affected by the legislation are merely factors, albeit important ones, in determining reasonableness.” Id. at 947
    (citations omitted).

             ‘me      requisites   of article III, section 56 and equal protection    guarantees     are quite similar.   See id.



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    Mr. Barry R. McBee    - Page 7                   (DM-474)




                                             SUMMARY

                   Water Code section 5.123, as enacted by Act ofMay 24,1997,75th Leg.,
               R.S., ch. 1203, 5 1, does not violate article I, section 28 or article II, section
               1 of the Texas Constitution.




                                                    DAN     MORALES
                                                    Attorney General of Texas

    JORGE VEGA
    First Assistant Attorney General

    SARAH J. SHIRLEY
    Chair, Opinion Committee
-
    Prepared by Mary R. Crouter
    Assistant Attorney General




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