Land v. State, Nos. 55172 and 57206-57208

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtW. C. DAVIS
Citation581 S.W.2d 672
PartiesHomer Ray LAND, Appellant, v. The STATE of Texas, Appellee. Billy Mack ADAIR, Appellant, v. The STATE of Texas, Appellee. Phillip Ray LAND, Appellant, v. The STATE of Texas, Appellee
Docket NumberNo. 1,Nos. 55172 and 57206-57208
Decision Date21 March 1979

Page 672

581 S.W.2d 672
Homer Ray LAND, Appellant,
v.
The STATE of Texas, Appellee.
Billy Mack ADAIR, Appellant,
v.
The STATE of Texas, Appellee.
Phillip Ray LAND, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 55172 and 57206-57208.
Court of Criminal Appeals of Texas, Panel No. 1.
March 21, 1979.
Rehearings En Banc Denied June 20, 1979.

Bill Pemberton, Joe Weis, Greenville, for appellant.

Donald A. Parks, City Atty., Greenville, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

OPINION

W. C. DAVIS, Judge.

Appeal follows trial de novo in county court on the offense of possession of channel catfish in excess of the legal limit. The trial court assessed punishment at a two hundred dollar ($200) fine in each cause. The four causes arise from the same fact situation and present identical issues for review. Thus the causes are consolidated for purposes of this opinion.

Surveillance by Texas Parks and Wildlife Department officers resulted in the arrest of appellants as they emerged from Lake Tawakoni. At the time of their arrests, appellants had in their possession 1,652 channel catfish. Prosecution of appellants proceeded under Proclamation A-3, issued by the Parks and Wildlife Department, which provides that each fish possessed in excess of the legal limit constitutes a separate offense. Secs. 1.07 and 7.02, Statewide Hunting, Fishing and Trapping Proclamation No. A-3, 1975-76. 1

Page 673

Appellants contend that Proclamation A-3 is in part unconstitutional because it is an attempt by an administrative agency to formulate penal laws. Appellants argue that the Legislature is prohibited from delegating rule-making authority to administrative agencies. Tuttle v. Wood, 35 S.W.2d 1061 (Tex.Civ.App.-San Antonio, 1931).

Appellants' argument on delegation raises fundamental issues of administrative and state constitutional law, which we proceed to review in the interest of justice.

In Tuttle, supra, the Court held that the Legislature could not delegate law-making powers which prescribed a penalty to an administrative agency. Following Tuttle, courts have steadily retreated from the "no delegation doctrine" to the point that rule-making and regulation by administrative agencies pursuant to specific delegated authority is permitted. Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex.Civ.App.-Austin, 1962).

Approval of regulatory activities by administrative bodies was a realization by the courts of the very real problems facing legislators. Very often the areas that require regulation involve highly technical fields or areas where massive accumulation of data is necessary. Faced with limitations on funds, time, and manpower, legislators find it impossible to acquire the requisite knowledge and expertise to enable them to responsibly legislate in the area. Delegation of the rule-making authority to an agency staffed by experts with access to the required data is a realistic approach to the problem. The agency supplies the expertise to regulate the area within the guidelines established by the Legislature. Such a solution has been approved by the Texas Supreme Court:

"(T)here are many powers which the Legislature may delegate to other bodies . . . where the Legislature cannot itself practically or efficiently perform the functions required."

Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939), no writ history.

In the present case, delegation of rule-making authority to the Parks and Wildlife Department is both a practical and efficient method to regulate the wildlife resources of Texas.

Delegation of rule-making authority is not an unlimited grant of power. In doling out the authority to regulate and make rules, the Legislature must establish guidelines for the agency. Attorney General Opinion, No. M-1190 (1972).

The agency must carefully frame its regulations within the narrow confines established by the Legislature. A rule made outside these guidelines may be held invalid or beyond the delegated authority. Kelly, supra.

In promulgating rules, the agency receives guidances from...

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7 practice notes
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 23 Septiembre 2009
    ...that of the Texas Supreme Court. See, e.g., Ex parte Ferguson, 112 Tex. Crim. 152, 15 S.W.2d 650 (Tex.Crim.App. 1929); Land v. State, 581 S.W.2d 672 (Tex. Crim.App.1979); Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W. 227 (Tex.Crim.App. 1920). See also Tex. Boll Weevil Eradication Found., Inc......
  • MARTINEZ v. The State of Tex., No. PD-0622-09 through PD-0626-09.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 6 Octubre 2010
    ...ensures that the administrative agency's rules and other actions actually conform to the legislative standards.”). 62 See Land v. State, 581 S.W.2d 672, 673 (Tex.Crim.App.1979) ( “Very often the areas that require regulation involve highly technical fields or areas where massive accumulatio......
  • State v. Exiga, No. 13-00-00332-CR.
    • United States
    • Texas Court of Appeals
    • 10 Enero 2002
    ...we must strictly construe an agency's rule-making authority when we review a regulation that is penal in nature. Land v. State, 581 S.W.2d 672, 674 (Tex.Crim.App.1979). Strict construction forces us to look at the 71 S.W.3d 434 clear language of the guidelines established by the legislature......
  • Martinez v. The State Of Tex., NOS. PD-0622-09 through PD-0626-09
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 6 Octubre 2010
    ...ensures that the administrative agency's rules and other actions actually conform to the legislative standards."). 62.See Land v. State, 581 S.W.2d 672, 673 (Tex. Crim. App. 1979) ("Very often the areas that require regulation involve highly technical fields or areas where massive accumulat......
  • Request a trial to view additional results
7 cases
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 23 Septiembre 2009
    ...that of the Texas Supreme Court. See, e.g., Ex parte Ferguson, 112 Tex. Crim. 152, 15 S.W.2d 650 (Tex.Crim.App. 1929); Land v. State, 581 S.W.2d 672 (Tex. Crim.App.1979); Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W. 227 (Tex.Crim.App. 1920). See also Tex. Boll Weevil Eradication Found., Inc......
  • MARTINEZ v. The State of Tex., No. PD-0622-09 through PD-0626-09.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 6 Octubre 2010
    ...ensures that the administrative agency's rules and other actions actually conform to the legislative standards.”). 62 See Land v. State, 581 S.W.2d 672, 673 (Tex.Crim.App.1979) ( “Very often the areas that require regulation involve highly technical fields or areas where massive accumulatio......
  • State v. Exiga, No. 13-00-00332-CR.
    • United States
    • Texas Court of Appeals
    • 10 Enero 2002
    ...we must strictly construe an agency's rule-making authority when we review a regulation that is penal in nature. Land v. State, 581 S.W.2d 672, 674 (Tex.Crim.App.1979). Strict construction forces us to look at the 71 S.W.3d 434 clear language of the guidelines established by the legislature......
  • Martinez v. The State Of Tex., NOS. PD-0622-09 through PD-0626-09
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 6 Octubre 2010
    ...ensures that the administrative agency's rules and other actions actually conform to the legislative standards."). 62.See Land v. State, 581 S.W.2d 672, 673 (Tex. Crim. App. 1979) ("Very often the areas that require regulation involve highly technical fields or areas where massive accumulat......
  • Request a trial to view additional results

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