Ex parte Elliott, s. 03-97-00674-C

• Decision Date: 16 July 1998
• Docket Number: Nos. 03-97-00674-C,03-97-00816-CR,s. 03-97-00674-C
• Parties: Ex parte Milton Dick ELLIOTT, Appellant.
• Court: Texas Court of Appeals

Page 737

973 S.W.2d 737

Ex parte Milton Dick ELLIOTT, Appellant.

Nos. 03-97-00674-CR, 03-97-00816-CR.

Court of Appeals of Texas,

Austin.

July 16, 1998.

E.G. Morris, Morris & Florey, L.L.P., Austin, for Appellant.

Ronald Earle, District Attorney, James Adkins, Assistant District Attorney, Austin, for State.

Before YEAKEL, C.J., and ABOUSSIE and JONES, JJ.

YEAKEL, Chief Justice.

Milton Dick Elliott applied for two writs of habeas corpus challenging the constitutionality of the statutes upon which pending indictments against him were based. The writs issued and, after a hearing, the trial court denied the relief sought in both. These appeals followed. See Tex.R.App. P. 31.

FACTUAL AND PROCEDURAL BACKGROUND

Elliott was indicted for transportation of hazardous waste to an unpermitted location in violation of SECTION 361.221(A)(1) OF THE TEXAS HEALTH AND SAFETY CODE¹ (THSC), and for illegal storage of hazardous waste in violation of THSC section 361.221(a)(2). ² He was arrested and subsequently released on bond subject to the conditions set by the bond. See Tex.Code Crim. Proc. Ann. art. 11.22 (West 1979).

Elliott filed in the district court petitions for writs of habeas corpus claiming that the statutes upon which the indictments are based are unconstitutional because they constitute an improper delegation of legislative authority to a federal agency. The State responded to each and a hearing was held before the trial court on both petitions. The court entered an order denying the relief requested holding that sections 361.221(a)(1) and (2) are constitutional and, therefore, that the indictments are not fundamentally defective. On appeal, Elliott contends that both sections must be declared invalid as an unconstitutional delegation of legislative authority.

DISCUSSION

Elliott argues that THSC sections 361.221(a)(1) and (2) (otherwise referred to as the Texas Solid Waste Disposal Act) violate the separation of powers clause of the Texas Constitution by improperly delegating governmental authority to a federal agency administrator. See Tex. Const. art. II, § 1. ³ Sections 361.221(a)(1) and (2) provide, in pertinent part:

(a) A person commits an offense if the person, acting intentionally or knowingly with respect to the person's conduct:

(1) transports, or causes or permits to be transported, for storage, processing, or disposal, any hazardous waste to any location that does not have all required permits;

(2) stores, processes, exports, or disposes of, or causes to be stored, processed, exported, or disposed of, any hazardous waste without all permits required by the appropriate regulatory agency or in knowing violation of any material condition or requirement of a permit or of an applicable interim status rule or standard.

Act of July 30, 1991, 72d Leg., 1st C.S., ch. 3, § 8.04, 1991 Tex. Gen. Laws 4, 78-79 (formerly Tex. Health & Safety Code Ann. §§ 361.221(a)(1), (2) (West 1992) (emphasis added)). ⁴ Elliott asserts that the term "hazardous As an example of a properly restricted delegation of rulemaking authority, Elliott directs this Court to State of Louisiana v. All Pro Paint & Body Shop, Inc., 639 So.2d 707 (La.1994). Under Louisiana's Hazardous Waste Control Law (HWCL), hazardous waste is defined as:

                waste" is an "essential element" of the prohibited conduct under sections 361.221(a)(1) and (2).  Hazardous waste is defined under the Texas Solid Waste Disposal Act as "solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.)."   Former Tex.  Health & Safety Code Ann. § 361.003(15) (West 1992);  now Tex.  Health & Safety Code Ann. § 361.003(12) (West Supp.1998) (emphasis added). 5  Elliott challenges the Texas legislature's delegation of authority to the federal Environmental Protection Agency (EPA) to define hazardous waste under section 361.003(15).  He argues that the legislature's delegation constitutes a surrender of its legislative power to the federal government.  He further argues that although an over-broad delegation may be saved if properly restricted through statutory standards or guidelines limiting the agency's discretion, nowhere in the Texas Solid Waste Disposal Act does the legislature include such restrictions on the EPA's authority
                

any waste, or combination of wastes, which because of its quantity, concentration, physical, or chemical characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed. Such definition shall be applied only to those wastes identified and designated as such by the department, consistent with applicable federal laws and regulations.

La.Rev.Stat. Ann. § 30:2173(2) (West 1988). The HWCL further authorizes the Louisiana Department of Environmental Quality (DEQ) to promulgate regulations implementing a state hazardous waste control program consistent with the minimum requirements of the mandate of the federal Resource Conservation and Recovery Act (RCRA). Under the HWCL, RCRA standards are used as the minimum standards to comply with the federal mandate. However, the legislature further authorizes the DEQ to adopt more stringent standards. See La. R. Stat. Ann. § 49:953(F) (West 1988) (prescribing special procedures for promulgation by DEQ of "a rule that is not identical to a federal law or regulation or is not required for compliance with a federal law or regulation").

In All Pro, the Louisiana Supreme Court considered whether the HWCL constituted an unconstitutional delegation of legislative authority to the federal government because RCRA standards are mandated as the minimum requirements to be adopted by the DEQ. The Court held the statute was constitutional because the Louisiana legislature retained its legislative power to decide its Thus, the legislature, not Congress or EPA, establishes the "framework for the regulation, monitoring, and control of the generators, transportation, treatment, storage, and disposal of such hazardous wastes" in Louisiana. La.R.S. 30:2172(B). Furthermore, although the legislature necessarily incorporates RCRA's minimum requirements in the HWCL as standards which serve to limit DEQ's discretion in administering and enforcing the HWCL, the legislature does not thereby surrender either to Congress, EPA, or DEQ its power to impose requirements which are more stringent than RCRA's requirements.

hazardous waste laws in lieu of the federal program created by RCRA:

All Pro, 639 So.2d at 717-18 n. 16. Elliott contends that the Texas legislature has failed to retain its authority under the Texas Solid Waste Disposal Act because, with its reference in section 361.003(15) to the definition of hazardous waste established by the EPA under RCRA, the Texas legislature has "surrendered its legislative power" to the federal government without limitation. He argues that the Texas legislature could have constitutionally delegated its authority to a state agency to promulgate regulations defining hazardous waste using RCRA standards as the minimum standards to apply.

The Nondelegation Doctrine

The doctrine of separation of powers, adopted by the Texas Constitution from the United States Constitution, is well established in Texas. See Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 465 (Tex.1997). "The power to pass laws rests with the Legislature, and that power cannot be delegated to some commission or other tribunal." Brown v. Humble Oil & Ref. Co., 126 Tex. 296, 83 S.W.2d 935, 941 (1935). The same principle applies in the context of criminal statutes: The authority to define crimes and fix the punishment for those crimes is vested exclusively with the legislature. See Ex parte Humphrey, 92 Tex.Crim. 501, 244 S.W. 822, 824 (1922); Ex parte Leslie, 87 Tex.Crim. 476, 223 S.W. 227, 227-28 (1920).

Review of Texas case law reveals, however, that this depression-era doctrine of nondelegation has not been broadly applied. "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 its law is both necessary and proper." Boll Weevil, 952 S.W.2d at 466 (citing Field v. Clark, 143 U.S. 649, 693-93, 12 S.Ct. 495, 36 L.Ed. 294 (1892)). The Texas Supreme Court, Texas Court of Criminal Appeals, and courts of appeals, including this Court, generally have upheld delegations to state and municipal agencies, id. at 467-68, so long as the statutes delegating powers to the agencies establish "reasonable standards to guide the entity to which the powers are delegated." Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.1992) (quoting State v. Texas Mun. Power Agency, 565 S.W.2d 258, 273 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ dism'd)). Indeed, even the Texas Supreme Court in pronouncing the general nondelegation doctrine in Brown recognized a need for the legislature to delegate the duty "to carry out the details under the general provisions of the statutes." Brown, 83 S.W.2d at 940. The determining factor in Brown was not whether the delegation was broad or narrow, but whether the court could discern a legislative limit to the agency's discretion through well-defined standards and rules in the statutes. Id. at 940-41. See also Ronald L. Beal, Tex. Admin. Prac. & Proc. Issue 0, p. 2-4 (1997).

Defining the Applicable Standards

In order to address the question of whether the legislature's delegation in THSC section 361.003(15) is constitutional, w...