State v. Rhine, No. 2-07-319-CR.

CourtCourt of Appeals of Texas
Writing for the CourtBob McCoy
Citation255 S.W.3d 745
Decision Date01 May 2008
Docket NumberNo. 2-07-319-CR.
PartiesThe STATE of Texas, State v. Michael Joseph RHINE, Appellee.
255 S.W.3d 745
The STATE of Texas, State
v.
Michael Joseph RHINE, Appellee.
No. 2-07-319-CR.
Court of Appeals of Texas, Fort Worth.
May 1, 2008.

[255 S.W.3d 746]

Paul Johnson, Crim. Dist. Atty., John A. Stride, Asst. Crim. Dist. Atty., Chief of the Appellate Division, Andrea R. Simmons, Paul Hiemke, Asst. Crim. Dist. Attys., Denton, for Appellant.

Richard S. Gladden, Jackson & Hagen, Denton, for Appellee.

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

[255 S.W.3d 747]

MEMORANDUM OPINION1

BOB McCOY, Justice.


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"), 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." TEX. WATER CODE ANN. § 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 air contaminants" is the Texas Commission on Environmental Quality. TEX. HEALTH & SAFETY CODE ANN. § 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." TEX. WATER CODE ANN. § 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." TEX. HEALTH & SAFETY CODE ANN. § 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 TEX. ADMIN. CODE §§ 111.201, 111.219(7) (West 2007). Burning prohibited materials is punishable by a

255 S.W.3d 748

fine of not less than $1,000 or more than $50,000, and/or confinement not to exceed 180 days. See TEX. WATER CODE ANN. § 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 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.

TEX. CONST. 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.2d 581, 585 (Tex.Crim.App. 1993).

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.

255 S.W.3d 749

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 [TEX. CONST. art. II, § 1] requires that the standards of delegation be "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.).

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...

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4 practice notes
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...of separation of powers. The trial court granted the motion. The state appealed, and the court of appeals reversed. State v. Rhine, 255 S.W.3d 745, 753 (Tex.App.-Fort Worth 2008). Appellee filed a petition for discretionary Because TEX. HEALTH & SAFETY CODE § 382.018(a), which delegates......
  • Lawson v. State, No. 2-08-116-CR.
    • United States
    • Court of Appeals of Texas
    • February 5, 2009
    ...gang members from engaging in future gang activities. Higginbotham, 135 Tex. at 171-72, 143 S.W.2d at 87; see also State v. Rhine, 255 S.W.3d 745, 752 (Tex.App.-Fort Worth 2008, pet. granted) (holding that it is neither practical nor efficient for the Texas Legislature to determine exactly ......
  • N. & W. Ins. Co. v. Sentinel Inv. Grp., LLC, NO. 01-12-00847-CV
    • United States
    • Court of Appeals of Texas
    • October 31, 2013
    ...trial court's judgment to make the award of appellate attorney's fees contingent upon the receiving party's success on appeal. Ansell, 255 S.W.3d at 745; Hoefker, 248Page 14S.W.3d at 332. We therefore modify the trial court's judgment to condition the award of appellate attorney's fees on a......
  • Meadows v. Midland Super Block Joint, No. 11-06-00283-CV.
    • United States
    • Court of Appeals of Texas
    • May 1, 2008
    ...deliver the notice to renew to appellants on or before the first of the next month. Midland Super Block failed to deliver the rent check 255 S.W.3d 745 (the notice) to appellants on or before the first day of October 2005. The lease terminated. Appellants' first issue is sustained. Appellan......
4 cases
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...of separation of powers. The trial court granted the motion. The state appealed, and the court of appeals reversed. State v. Rhine, 255 S.W.3d 745, 753 (Tex.App.-Fort Worth 2008). Appellee filed a petition for discretionary Because TEX. HEALTH & SAFETY CODE § 382.018(a), which delegates......
  • Lawson v. State, No. 2-08-116-CR.
    • United States
    • Court of Appeals of Texas
    • February 5, 2009
    ...gang members from engaging in future gang activities. Higginbotham, 135 Tex. at 171-72, 143 S.W.2d at 87; see also State v. Rhine, 255 S.W.3d 745, 752 (Tex.App.-Fort Worth 2008, pet. granted) (holding that it is neither practical nor efficient for the Texas Legislature to determine exactly ......
  • N. & W. Ins. Co. v. Sentinel Inv. Grp., LLC, NO. 01-12-00847-CV
    • United States
    • Court of Appeals of Texas
    • October 31, 2013
    ...trial court's judgment to make the award of appellate attorney's fees contingent upon the receiving party's success on appeal. Ansell, 255 S.W.3d at 745; Hoefker, 248Page 14S.W.3d at 332. We therefore modify the trial court's judgment to condition the award of appellate attorney's fees on a......
  • Meadows v. Midland Super Block Joint, No. 11-06-00283-CV.
    • United States
    • Court of Appeals of Texas
    • May 1, 2008
    ...deliver the notice to renew to appellants on or before the first of the next month. Midland Super Block failed to deliver the rent check 255 S.W.3d 745 (the notice) to appellants on or before the first day of October 2005. The lease terminated. Appellants' first issue is sustained. Appellan......

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