State v. Rhine, PD-0912-08.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation297 S.W.3d 301
Docket NumberNo. PD-0912-08.,PD-0912-08.
PartiesThe STATE of Texas v. Michael Joseph RHINE, Appellee.
Decision Date23 September 2009

Andrea R. Simmons, Asst. Crim. Dist. Atty., Jeffrey L. VanHorn, State's Attorney, for appellant.

Richard Gladden, for appellee.


JOHNSON, J., delivered the opinion of the Court in which PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

Appellee was charged with improper outdoor burning. The information alleged that he

did then and there unlawfully, intentionally or knowingly cause, allow, or permit outdoor burning, to wit: [appellee] burned domestic and non-domestic waste including crossties, fiberglass, tires and pvc pipe when collection of domestic waste is provided or authorized by the local governmental entity having jurisdiction, within the State of Texas in violation of an order, permit, or exemption issued or a rule adopted under Chapter 382, Health and Safety Code, to wit: Title 30, Texas Administrative Code Rule Section 111.201, and the outdoor burning was not authorized by the Executive Director of the Texas Commission o[n] Environmental Quality, nor was the outdoor burning authorized by an exception contained in Title 30, Texas Administrative Code Rule Sections 111.205, 111.207, 111.209, 111.211, 111.213[.]

Appellee filed a motion to quash the information, alleging that the provision of the Administrative Code under which he was charged was void because the legislature unconstitutionally delegated authority to the Texas Commission on Environmental Quality (TCEQ), an executive-branch agency, in violation of the doctrine 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 review.

Because TEX. HEALTH & SAFETY CODE § 382.018(a), which delegates to TCEQ the power to prohibit or control the outdoor burning of waste, is a constitutional delegation of legislative authority, we affirm the judgment of the court of appeals.


Few of the facts of the case are known to us because the appeal comes to us on a motion to quash. What we do know is that appellee admitted to a Denton County Fire Marshall that he had started a fire on July 8, 2005, in Northlake, Texas. The material burned in the fire included crossties, fiberglass, tires, and PVC pipe. On December 12, 2006, the state filed an information that alleged that appellee had violated the Texas Clean Air Act.

On May 14, 2007, appellee moved to quash the information, contending that the enabling statute,1 the administrative rules adopted by TCEQ pursuant to that legislative authority,2 and the penal statute upon which the state's information rested,3 comprised an unconstitutional delegation of legislative authority prohibited by Article II, § 1, of the Texas Constitution. He argued that the delegation was unconstitutional because the legislature did not define what materials and conditions were prohibited in outdoor burning, leaving those decisions to TCEQ. The trial court agreed and quashed the information. In his petition to this Court, appellee argues, as he did in the court of appeals, that the trial court was correct.

Separation of Powers

The issue of unconstitutional delegation that appellee raises implicates Article II, § 1, of the Texas Constitution. That article provides that

[t]he 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. Appellee argues that this section mandates a strict separation between the branches of government, making the delegation of authority from the legislature to TCEQ, an executive-branch agency, unconstitutional. However, his claim of strict interpretation ignores the precedent of not only this Court, but also 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. v. Lewellen, 952 S.W.2d 454 (Tex.1997). As this Court stated in Land v. State, "[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." Land, 581 S.W.2d at 673 (quoting Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 635 (1939).)

In Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Crim.App.1990), this Court provided a test for determining when the separation of powers is violated.

We have held repeatedly that the separation of powers provision may be violated in either of two ways. First, it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more `properly attached' to another branch. The provision is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.

Id. at 239 (emphasis in original; internal citations omitted). Thus, if TCEQ has been delegated a power that is more properly attached to the legislature, then appellee is correct, and the statute that he was charged with violating is unconstitutional.

Powers Properly Attached to the Legislature

The Texas Constitution vests law-making power in the legislature. TEX. CONST. art. III, § 1. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991); Copeland v. State, 92 Tex.Crim. 554, 244 S.W. 818, 819 (Tex.Crim.App.1922). See also Russell v. Farquhar, 55 Tex. 355, 359 (1881). Only the legislature can exercise that power, subject to restrictions imposed by the constitution. TEX. CONST. art. II, § 1. These restrictions must be express or clearly implied. Jones v. State, 803 S.W.2d 712, 716 (Tex.Crim.App.1991) (citing Gov't Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex.1963)).

The legislature also declares the public policy of the state and may depart from established public policy, reshape it, or reform it. State v. Dallas, 319 S.W.2d 767, 774 (Tex.Civ.App.-Austin 1958) (citing McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898, 900 (1955)); Reed v. Waco, 223 S.W.2d 247, 253 (Tex.Civ.App.-Waco 1949). It may do this as long as constitutional guarantees are not abridged. Reed, 223 S.W.2d at 253. The legislature may enact laws that enhance the general welfare of the state and resolve political questions, such as the boundaries of political subdivisions, subject to constitutional limits. Carter v. Hamlin Hosp. Dist., 538 S.W.2d 671, 673 (Tex.Civ.App.-Eastland 1976); see Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79, 28 S.Ct. 40, 52 L.Ed. 151 (1907). It also has exclusive dominion over the fixing of penalties for offenses under the state's penal laws. See Sasser v. State, 131 Tex.Crim. 347, 98 S.W.2d 211, 212 (Tex.Crim.App.1936); David v. State, 453 S.W.2d 172, 179 (Tex.Crim.App.1970), vacated on other grounds in David v. Texas, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 755 (1972); Grant v. State, 505 S.W.2d 279, 282 (Tex.Crim.App.1974).

The legislature may delegate some of its powers to another branch, but only if those powers are not more properly attached to the legislature. For example, legislative power cannot be delegated to the executive branch, either directly or to an executive agency. The issue becomes a question of the point at which delegation becomes unconstitutional. The Texas Supreme Court has described the problem: "the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree." Tex. Boll Weevil Eradication Found., Inc., 952 S.W.2d at 466. This Court, in Ex parte Granviel, 561 S.W.2d 503 (Tex.Crim. App.1978), stated that sufficient standards are necessary to keep the degree of delegated discretion below the level of legislating.

Generally, a legislative body, after declaring a policy and fixing a primary standard, may delegate to the administrative tribunal or officer power to prescribe details, Margolin v. State, 151 Tex.Cr.R. 132, 205 S.W.2d 775 (1947); Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177 (1943), such as to establish rules, regulations or minimum standards reasonably necessary to carry out the expressed purpose of the act. Beall Medical Surgical Clinic and Hospital, Inc. v. State Board of Health, 364 S.W.2d 755 (Tex.Civ.App. Dallas, 1963), and cases there cited.

Thus, the existence of an area for exercise of discretion by an administrative officer under delegation of authority does not render delegation unlawful where standards formulated for guidance and limited discretion, though general, are capable of reasonable application. Nichols v. Dallas, supra, and cases there cited. So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature's jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Commissioners Court of Lubbock v. Martin, supra.

Ex parte Granviel at 514 (citing Comm'rs Ct. of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App.-Amarillo 1971, writ ref'd, n.r.e); and Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App.-Dallas 1961)). Therefore, if the legislature has provided sufficient standards to guide the agency's discretion and the delegated power is...

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