Case Summary - State v. Michael Joseph Rhine

Michael Rhine burned crossties, fiberglass, tires, and pvc pipe, which violated sections 111.201 and 111.219(7) of the Administrative Code. These sections were promulgated under the rulemaking authority granted to the Texas Commission on Environmental Quality Health and Safety Code, making the conduct a violation of The Water Code. [I don't know what I find more confusing, that a violation of the clean air act is found in the Water Code or that the Water Code is not just for riparian rights anymore. The times they are a changin'.] Anyway, Rhine was charged with illegal outdoor burning.

Rhine filed a motion to quash, alleging that the delegation of authority to the TCEQ by the Legislature in the Health and Safety Code violated Article II, Section 1 of the Texas Constitution. This section basically requires that all branches of the government remain separate, but you can follow the link to check it out if you're curious. The court of appeals affirmed, holding that the statute did not amount to an improper delegation of legislative authority. The court of appeals essentially explained that the Legislature, which only meets every other year for a few months, can't be expected to practically and efficiently decide what materials should be banned from outdoor burning.

The CCA affirmed, also holding that the statute did not impermissibly delegate the legislature's rulemaking authority. Judge Johnson, writing for a five-judge majority, explained that generally the legislature can establish a policy and fix a primary standard, but delegate to another agency or branch the authority to work out the details. Even if the delegated agency has discretion, as long as there are standards formulated for guidance and limitation of that discretion, the delegation is not unconstitutional. Here, the statute delegated the power to TCEQ to "control and prohibit the outdoor burning of waste and combustible material" and to "include requirements concerning the particular method to be used to control or abate the emission of air contaminants from that burning." The standards sufficiently limited TCEQ's authority to deciding what materials, when burned, amounted to "air contaminants." It also limited TCEQ to exercising control over the places and conditions under which those materials may be burned. [Maybe it's just me, but these things don't seem like limitations at all. I mean, anything except air could be a contaminant, and control over when and where things can be burned leaves a wide open field . . . so to speak.]

Presiding Judge Keller concurred because the briefing in this case was transcendental in its effectiveness so she wanted to take some time to write thirty-one more pages on illegal outdoor burning and separation of powers. She's so wild. And yet Meyers joined this one, hmmm. Joined by five other judges (Judge Holcomb joined both opinions . . . the man is unstoppable!), Presiding Judge Keller explained that the Texas Constitution's separation-of-powers provision is not more strict simply because it's explicitly spelled out in the Texas Constitution while the concept is not spelled out in the federal Constitution. However, defense of the non-delegation line between the legislative and executive branches is almost non-existent in the federal system, so Texas defense would necessarily have to be more robust. [Clearly she has never seen the Houston Texans play.]

That said, Judge Keller rejected Rhine's argument that the legislature can never delegate the power to fix elements of a criminal offense. The CCA had, in past cases, upheld legislative attachment of criminal penalties to the violation of regulations in proper circumstances, namely when the administrative agency is acting under specific command of the Legislature in establishing rules. Presiding Judge Keller goes on to note that many other states have addressed the delegation question with respect to criminal penalties, but the weight of authority cut against Rhine's position. And, as a practical consideration, separation-of-powers is concerned with the government's relationship with itself not with its citizens, so it makes no sense to draw a distinction based upon whether a given regulation is criminal or civil. Such a distinction really only matters to the citizen affected by the regulation, it doesn't really change the scope of delegation. [I added that last editorial part in to try and internalize an understanding of the opinion.]

Finally, the concurrence set out to figure the scope of the Texas Constitutional provision dealing with the separation-of powers. Presiding Judge Keller noted that this Court and other courts have widely upheld such delegations so long as there are proper standards to guide administrative discretion. When the issues are more complex, the standards can be more general. Environmental regulation is, in a word, complex. And though standards can't be so broad that discretion is unbridled, the presence of procedural safeguards, such as pre-adoption public hearings and post-adoption judicial review, help ensure the agency conforms to those standards.

With this backdrop, Presiding Judge Keller proposed a rule for determining the constitutionality of a delegation of authority. It's okay so long as four conditions are met: 1) the delegation can, at least by implication, be characterized as the delegation of authority to make a factual determination relevant to the purpose of the statute, rather than simply a policy decision, (2) the statute contains standards, expressly provided or implied from an express statutory purpose, that are sufficiently specific to give guidance to the agency and to the courts as to what types of rules or other actions are and are not permissible, (3) pre-adoption procedural safeguards exist to ensure that the agency has the opportunity to consider whether the rule or other action conforms to the legislative standards, and (4) post-adoption judicial review is available to ensure that the agency rule or other action does in fact comply with the legislative standards. According to Presiding Judge Keller, and the other five concurring judges, this delegating statute satisfies these four requirements.

Here's a link to the CCA case info. Here's a link to the court of appeals case info. Here's a link to my post when the CCA granted discretionary review. Here's a link to the oral arguments.

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Well, I like Presiding Judge Keller's new proposed test because it provides more guidance than simply saying the legislature provided guidance and limitations. That kind of makes this a weird anomaly of an opinion because Judge Holcomb double-dipped. Does this mean, this test is what we look at or do we only have to look at whether there were goals and limitations? There was some overlap between the two opinions, as both said just that, but the concurrence seems to make clearer why we look at the purpose and how we look at the limitations. Or, maybe that's just a gloss. I just wish they could've combined both opinions for one big unanimous one. I mean, it's not like there's any real disagreement between the two opinions.