The following article is linked on the front page of the TDCAA web site. Now, given that prosecutors are constitutionally authorized to make the decision whether to prosecute, why isn't this law an unconstitutional violation of the separation of powers?

TCEQ rejects criminal enforcement against Asarco
Times staff report

County Attorney Jos� Rodr�guez announced today in a news release that the Texas Commission on Environmental Quality (TCEQ) has rejected the County Attorney's request for criminal enforcement of Asarco's alleged criminal environmental violations.

Additionally, that decision now prevents any local law enforcement agency from taking further criminal action against Asarco on those violations. Under state law TCEQ must authorize a local prosecutor to pursue criminal environmental prosecutions.

Something doesn't seem right. What makes TCEQ so special?

JAS

I remember when they adopted this statute. It had something to do with someone in Austin thinking some prosecutor's office was too aggressive against environmental criminals. Maybe someone else remembers the specifics. Seems to me that if prosecutors have the power to prosecute environmental crimes, no one else outside of prosecution should be gatekeeping the cases. If the environmental agencies need to be the ones to decide for some public policy reason that is 'greater' than enforcing the criminal laws, perhaps the environmental agencies should also be the ones who actually do the enforcement and prosecution, not the local prosecutors.

Water Code Sec. 7.203 was passed in 2003 as SB 1265. Details about the bill can be found here:

SB 1265 (78R)

To my knowledge, this is the first time TCEQ has invoked its prohibition on prosecution.

Several prosecutors opposed passage of the bill for a variety of reasons, including its purported unconstitutionality. Those opponents were politely steamrolled by, shall we say, more "monied" interests. [ahem]

So goes the sausage-making process!

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Originally posted by A. Diamond:
I remember when they adopted this statute. It had something to do with someone in Austin thinking some prosecutor's office was too aggressive against environmental criminals. Maybe someone else remembers the specifics.

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If I remember correctly, this bill was a reaction to the Harris county DA's office being perceived as overly aggressive on environmental cases. "Someone" thought there was too much criminal enforcement when a civil penalty would do.

The prosecutor should go forward with charges if he has the evidence and resources to do so. The defense could challenge the law if convicted. I do not believe the law would be upheld.

Consider it this way, if the Leg could do this with environmental crimes, what would stop them from doing it with public integrity crimes that involve themselves? This is why prosecutors are a constitutionally separate office from the legislative branch. Remember the Alamo!

[This message was edited by JB on 02-28-08 at .]

I currently have pending a request for an AG opinion wherein TCEQ regulations invade the county's subdivision control with respect to septic sytstems on small lots. Basically, it amounts to an arrogant, bureaucratic fiat from TCEQ that ignores common sense. Could its "gatekeeping" be sourced to that same sort of attitude?

If our administrative agencies are going to flex newfound muscle in prosecution, why hasn't the Lottery Commission taken over our gambling cases? And if that newfound muscle is improper (i.e., unconstitutional), does that make the legislature the Brian McNamee of this sordid business?

I agree with Ken, I hope the prosecutor proceeds with the case. I do not believe this law will withstand a constitutionality challenge.


John L. Pool

I did a law review article of this exact statute and situation. It's unconstitutional in two separate ways--because it delegates power to TCEQ that they do not have (from the prosecutor) and takes away constitutional power that has been given to the prosecutor. I hope the prosecutor takes it on as well. THe TCEQ already has administrative fines, etc. that they have sole control over, so I don't see why they would have any say in the prosecution.

By analogy, the ALR hearings do not bar our prosecution for DWI if the administrative judges find no probable cause, or if they decide not to suspend someone's license.

I'm looking at one of these cases now.

Anyone out there prosecuted this type of case?

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Originally posted by Scott Brumley:
If our administrative agencies are going to flex newfound muscle in prosecution, why hasn't the Lottery Commission taken over our gambling cases? And if that newfound muscle is improper (i.e., unconstitutional), does that make the legislature the Brian McNamee of this sordid business?

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Or the Jose Conseco. See the Onion

http://www.theonion.com/content/news/canseco_hey_guys_who_wants_to_come

I certainly would not want to be accused of offering any improper inducements, but I bet there would be a lot of people in favor of awarding a Ken's cap to the prosecutor that gets this declared unconstitutional.

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I did a law review article of this exact statute and situation.

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What's law review? Was that the bunch that sent me a pamphlet explaining about the benefits of high-minded legal writing that concluded with, "but we're sure you'll find another more appropriate niche at our fine law school ... such as the bowling team. P.S. Please stay away from the law library."?

Maybe I should have avoided the nerdy reference to law review and just said..."I have extensively researched this issue....for lengthy discussion with my poker crowd."

Nah, cuz at least having to do a law review article gives you a reason for the research. Nearly all of us had to do some sort of writing requirement in law school, so there you go. Otherwise, you just look like you're reading the law for fun, and we all know that's just weird.

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Otherwise, you just look like you're reading the law for fun, and we all know that's just weird.

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Hey now, I resemble that remark.

Yeah we all know Gretch doesn't read the law for fun.

Sounds like TCEQ needs to lobby for another Constitutional amendment. But, more importantly, why in God's name would the TCEQ ever say that a law shouldn't be enforced? Is a civil penalty imposed paid to the TCEQ?

How do we follow the money here, and where does it lead?

So, I figured it was Friday, I've got time to read the law, for fun, channelling Rainwoman, and here's what I found right off the bat from Shannon's link:

Sec. 7.203. CRIMINAL ENFORCEMENT REVIEW.
(a) This section is applicable to criminal prosecution of alleged environmental violations of this code, of the Health and Safety Code, or of any other statute, rule, order, permit, or other decision of the commission that is within the commission's jurisdiction committed by a defendant holding a permit issued by the commission or a defendant employed by a person holding such a permit and that is related to the activity for which the permit was issued. This
section does not apply to an alleged environmental violation that clearly involves imminent danger of death or bodily injury under an endangerment offense specified in Section 7.252. Nothing in this section limits the power of a peace officer to arrest a person for an alleged offense.
(b) Before a peace officer, as that term is defined in Section 7.193 or Chapter 2, Code of Criminal Procedure, may refer any alleged criminal environmental violation by a person holding a permit issued by the commission or an employee of that person of this code, of the Health and Safety Code, or of any other statute,
rule, order, permit, or other decision of the commission that is within the commission's jurisdiction to a prosecuting attorney for
criminal prosecution, the peace officer shall notify the commission in writing of the alleged criminal environmental violation and include with the notification a report describing the facts and circumstances of the alleged criminal environmental violation. This section does not prohibit a peace officer from issuing a citation or making an arrest.
(e) Any fine, penalty, or settlement recovered through a prosecution subject to this section and brought in the name and by
authority of the State of Texas, whether recovered through any form of pretrial resolution, plea agreement, or sentencing after trial, shall be apportioned 70 percent to the state to cover the costs of instituting the procedures and requirements of Subsections (a)-(d) and 30 percent to any local government significantly involved in prosecuting the case. In a case where the procedures described in
this section do not apply, the provisions of Section 7.190 apply.

So, there are provisions that direct the fines away from the county where the violation occurred. AND it appears there is nothing stopping the arresting agency from arresting the defendant over and over again assuming the defendant continues the violation after the arrest.