My county made a regulation in 1986 that made it a class C misdemeanor to store items within a flood plain. The county sited Texas Water Code section 16.315 and section 16.318 and this states that a political subdivision may adopt and promulgate reasonable rules and regulations which are necessary for the orderly effectuation of the respective authorizations herein.
1. Does anybody know of case law that would support the county regulation?
2. Does anybody have case law that states making a regulation a class C misdemeanor is considered a reasonable rules and regulations?
I have to defend against a motion to quash and dismiss that states this action by the county is unconstitutional.
I am not a lawyer but are you sure it is really a class C misdemeanor and not a municipal ordinance?
The reason I ask is that I know of one small city with a disorderly conduct ordinance that is pretty much ripped word for word from 42.01 and violations have the same penalty range as a class C. I have heard it referred to as a class C in casual conversation even though it technically isn't a class C.
Thanks for the reply.
It is not a municipal ordinance. The wording in the regulation states class C misdemeanor. Cities get there authority to pass ordinances from a different section in the Texas Government Code.
There are a number of flood control statutes, many of which are geographically or population specific. See for example, LGC 240.905 Land Use regulation for flood control in the trinity river basin.
[I copied this over to the civil forum as well.]
I handled a case regarding a statute that granted similar authority to an agency to promulgate rules and regulations which resulted in a criminal offense (outdoor burning). The motion to quash was based on the defendant's allegations that the legislature improperly delegated authority to the agency to promulgate rules. Look at State v. Rhine, 297 S.W.3d 301 (Tex. Crim. App. 2009). I'm not sure if this is helpful with your issue, but if I can be of any assistance, done't hesitate to let me know.
It is my understanding that there can be no criminal penalty for violation of a county ordinance or a state agency rule unless a statute provides a criminal penalty. However, I have no authority to cite and I don't recall how/where I got that idea.
In Rhine, the statute at issue actually gave the agency (TCEQ) the authority to promulgate rules and regulations. But the statute read that any violation of such rule or regulation was an offense punishable as..blah, blah, blah. So yes, the statute actually identified the offense and punishment; the agency did not set that up. The agency, however, properly had the authority, as set out in the definitions and perameters within the statute, to enact the rules and regulations which could result in a crimianl offense.
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