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.
16.3221 of the Texas Water Code made it a crime. Texas Legislature decided violation of these rules were Class C. Now this wasn't passed in 1987 but 2001. As for the reasonableness of your regulations if they are consistent with the purposes described in the rest of the subchapter, you should have a good start. Most of the regulations have some basis in common law as well. In Texas I can't flood my upstream neighbor by building a dam or obstructing the natural flow of water across my property. Most of these regulations are some form of that.
FYI: I posted a comment in response to this thread in the criminal topic list.
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