### DAN MORALES

ATTORNEY CENERAL 

# Office oftheElttornep QBeneral $&ate of PCexae April 14,1998
Mr. Barry R. McBee Chair, Texas Natural Resource Conservation Commission P.O. Box 13087 Austin, Texas 7871l-3087 Opinion No. DM-474 Re: Whether Water Code section 5.123, as enacted by Act of May 24, 1997, 75th Leg., R.S., ch. 1203, § 1, violates the suspension of laws and separation of powers provisions ofthe Texas Constitution (RQ-975)
Dear Mr. McBee: You askwhether Water Code section 5.123,’ arecently enacted stat&? authorizing the Texas Natural Resource Conservation Commission (“TNRCC” orthe “commission”) to grant exemptions to statutes and commission rules regarding pollution control or abatement, violates the suspension oflaws’ and separation ofpowers4 provisions ofthe Texas Constitution. For the following reasons, we conclude that section 5.123 does not run afoul ofthese provisions. Chapter 5ofthe Water Code establishes the TNRCC and sets forth its general powers and duties. Section 5.123 provides in pertinent asfollows:

(a) The commission by order may exempt an applicant from a requirement of a statute or commission rule regarding the control or abatement ofpollution ifthe applicant proposes to control or abate pollution by an alternative method orby applying an alternative standard that is: (1) atleast asprotective ofthe environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply; and (2) not inconsistent with federal law,

‘ As enacted by Act of May 24, 1991,7Sth Leg., RX, ch. 1203, !j 1, 1997 Tex. Sess. Law Serv. 4621,462l.

‘See id.

‘Tex. Const. art. I, $ 28.

‘Tex. Const. art. II, 9 1.Mr. Barry R. McBee - Page 2 (DM-474)

- (b) The commission by rule shall specify the procedure for obtaining an exemption under this section. The rules must provide for public notice and for public participation in a proceeding involving an application for an exemption under this section. (c) The commission’s order must provide a specific description of the alternative method or standard and condition the exemption on compliance with the method or standard asthe order prescribes.

. . . (e) Aviolation ofanorder issued under this section ispunishable asifit were a violation of the statute or rule from which the order grants an exemption. We begin with your question about the prohibition against suspension of laws. Article I, section 28 ofthe Texas Constitution provides that “[n]o power ofsuspending laws inthis State shall be exercised except by the Legislature.” Section 28 prohibits the legislature from delegating the power to suspend laws.’ Courts have held that section 28 does not preclude the legislature from authorizing an administrative agency to grant exceptions to statutory requirements, however, provided that the agency’s discretion islimited ~ or, in other words, that the delegation ofauthority isvalid under article II, section 1ofthe Texas Constitution. Thus, forexample, inSproles v.Binford the United States Supreme Court considered asection 28challenge to aTexas statute that generally prohibited the operation of overweight and oversize vehicles but authorized the former Texas Highway Department to grant carriers time-limited permits to transport overweight or oversize commodities “as cannot be reasonably be dismantled” under certain conditions. Sproles v.Binford, 286 U.S. 374,380 n.l,397 (1932). The court concluded that “the authority given to the department is not to suspend the law, but is of a fact-finding and administrative nature.” Id. at 397 (citing Trimmier Y.Carlton, 296 S.W. 1070 (Tex. 1927)). The court went on to conclude that the statute was aconstitutional delegation oflegislative power. Id. This reasoning has been adopted by atleast two Texas courts faced with section 28 challenges to statutes authorizing administrative agencies to grant exceptions to statutory requirements. See Williams v.State, 176 S.W.2d 177 (Tex. Crim. App. 1943) (upholding statute authorizing commissioner ofagriculture to promulgate rules making exceptions to boll weevil eradication statute prohibiting cotton farming in regulated zones); State Bd. ofIns. v. Sam Houston Life Ins. Co., 344 S.W.2d 709 (Tex. Civ. App.--Austin 1961, no writ) (upholding statute authorizing former Board of Insurance Commissioners to make exceptions to statutory tiling requirements). Section 5.123 authorizes the TNRCC to grant exemptions to statutory and regulatory pollution control or abatement requirements “ifthe applicant proposes to control or abate pollution by an alternative method orby applying an alternative standard that is atleast asprotective ofthe
SMcDonald Y.Denton, 132 S.W. 823,825 (Tex. Civ. App. 1910, no writ).

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environment and the public health asthe method or standard prescribed by the statute orcommission rule that would otherwise apply.” An order under section 5.123 does not authorize its holder to violate apollution control or abatement statute. Rather, it authorizes the holder to comply with the statute by another means that conforms with a legislatively prescribed standard, The power delegated to the TNRCC is not the power to suspend statutes but rather to determine whether alternative methods ofcompliance satisfy the legislatively prescribed standard. We see no reason why the legislature cannot delegate this authority to an administrative agency, provided that the prescribed standard is sufficiently clear. See discussion ofTex. Const. art.II, 5 1infra pp. 4-5. A brief submitted to this office suggests that Williams v. State, cited above, must be distinguished because in that case the Commissioner of Agriculture was authorized to make exceptions by rule whereas in this case the TNRCC is authorized to grant exemption orders on a case-by-case basis. We disagree. First, we arenot persuaded that there isadistinction for purposes of section 28 between a statute authorizing an agency to make general exceptions to a statutory requirement by rule and one authorizing an agency to make specific exceptions to a statutory requirement by order. Section 5.123 mandates that TNRCC procedures forobtaining an exemption must provide forpublic notice and forpublic participation inaproceeding involving an application for an exemption,6 aprocess akin tomlemaking procedures.’ Furthermore, each order must comport with the same basic standard that the approved alternative method or standard be “at least as protective ofthe environment and the public health.“* While we appreciate that itmay be agreater challenge for the public to monitor and participate in anuntold number of exemption proceedings than to monitor and participate in afew rulemaking proceedings, we do not view this as atenable objection under section 28. Moreover, the section 28 cases cited above do not suggest that the manner in which an agency is authorized to make exceptions to statutory requirements is significant. The Williams v. State opinion does not make this distinction. Moreover, in Sproles v.Binford the United States Supreme Court clearly condoned legislation authorizing the state highway department to make exceptions to general law by permits granted on acase-by-case basis. See also Sum Houston Life Ins. Co., 344 S.W.2d 709 (condoning statute authorizing Board ofInsurance Commissioners tomake by order case-by-case exceptions to statutory tiling requirements). Section 5.123 isunique inits scope. Unlike the statutes atissue inthe cases discussed above, itdoes not authorize the TNRCC to make exemptions tojust one statute. Rather, itauthorizes the commission to make exemptions to abroad class of statutes. We do not believe this difference is significant forpurposes of section 28, however. Clearly, the legislature would not run afoul ofthe suspension of laws provision if it amended aparticular pollution control or abatement statute to

6Water Code 55.123(b).

‘See Gov’t Code ch. 2001, subchap. B (Administrative Procedure Act provisions governing mlemaking). *Seealso discussion of local and special laws and equal protection guarantees infia pp. 5-6.

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authorize the TNRCC to grant applications permitting compliance by alternative means that conform with aparticular standard. The potential magnitude of statutes and commission rules affected by section 5.123 does not transform the statute into a suspension of laws. While the broad scope of section 5.123 may have unique policy implications, itisnot our role to evaluate the wisdom ofthe legislature’s policy choices. Based on the cases discussed above, we conclude that section 5.123 does not authorize the TNRCC to suspend laws and thus does not violate article I, section 28. Next, we address whether section 5.123 isavalid delegation oflegislative authority. Article II, section 1,the separation ofpowers provision, requires that any delegation oflegislative authority to an administrative agency be “‘reasonably clear and hence acceptable as a standard of measurement.“’ Texas Boll WeevilEradication Found., Inc. v.Lewellen, 952 S.W.2d 454,467 (Tex. 1997). As the Texas Supreme Court recently stated,

The Texas Legislature may delegate itspowers to agencies established to carry out legislative purposes, aslong asitestablishes “reasonable standards to guide the entity to which the powers are delegated.” Railroad Comm ‘nv. Lone State Gas Co., 844 S.W.2d 679,689 (Tex. 1992) (quoting State v. Texas Mm. Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App.--Houston [lst Dist.] 1978, writ dism’d)). “Requiring the legislature to include every detail and anticipate unforeseen circumstances would defeat the purpose of delegating legislative authority.” Id. Edgewoodlndep. Sch.Dist. v.Meno, 917 S.W.2d 717,740 (Tex. 1995). Texas courts have generally upheld delegations oflegislative authority, Lewellen, 952 S.W.2d at467-68, except in cases where the delegation is so vague that itprovides no legislative standards, id. at468-69. More particularly in the area of environmental and public health regulation, courts have concluded that broad standards provide sufficient guidance for administrative agencies to properly exercise delegated legislative authority. See, e.g.,Railroad Comm ‘nofTexas v.Lone Star Gas Co., 844 S.W.2d 679 (Tex. 1992) (approving standards delegating authority to Railroad Commission to prevent waste and promote conservation); Trapp v.Shell Oil Co., 198 S.W.2d 424,438 (Tex. 1946) (upholding legislative delegation of authority to Railroad Commission to conserve oil and gas); Med-Safe, Inc. Y.State, 752 S.W.2d 638, 640 (Tex. Civ. App.--Houston [lst Dist.] 1988, no writ) (upholding delegation of authority to Department ofHealth to license solid waste disposal sites to “safeguard the health, welfare and physical property of the people” and to “protect the environment”); Beall Medical Surgical Clinic & Hosp., Inc. v. Texas State Bd. ofHealth, 364 S.W.2d 755, 756-57 (Tex. Civ. App.--Dallas 1963, no writ) (upholding delegation of legislative authority to state board ofhealth to license hospitals to “promote the public health and welfare by providing for the development, establishment, and enforcement of certain standards in the construction, maintenance, and operation ofhospitals”); Clark v.Brisoe Irrigation Co., 200 S.W.2d 674, 682-85 (Tex. Civ. App.--Austin 1947, writ dism’d) (upholding delegation of legislative authority to board ofwater engineers to determine whether permit application “detrimental to the public welfare”).

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Section 5.123 authorizes the TNRCC to grant exemptions topollution abatement statutes and rules to applicants who propose to abate pollution by alternative methods provided that the alternative method is “at least asprotective ofthe environment and the public health asthe method or standard prescribed by the statute or commission rule that would otherwise apply.” This delegation ofauthority articulates abroad standard comparable to the broad standards approved in the authorities cited above. While there may be some debate whether aparticular alternative method satisfies the requirement that itbe “at least asprotective ofthe environment and the public health asthe method or standard prescribed by the statute orcommission rule that would otherwise apply,” we believe acourt would conclude that this language satisfies the dictates ofarticle II, section 1. Assuming section 5.123 does not authorize the TNRCC to suspend the law and is a permissible delegation oflegislative authority, you also ask if“the exemption [may] be granted on a case-by-case basis, as contemplated by [section 5.1231, or would it have to be a ‘general’ suspension?’ We agree that section 5.123 contemplates that exemptions will bemade on acase-bycase basis, but are not sure of the nature of your concern. Following your question, you cite McDonald v.Denton, 132 S.W. 823 (Tex. Civ. App. 1910), a case involving a City of Houston attempt to permit prostitution in alimited area, which explores the legislature’s authority to suspend laws:

- It is the general rule that the Legislature, although given the power of suspending the operation of the general laws of the state, must make the suspension general, and cannot suspend them for individual cases or for particular localities. The Legislature of Texas itself could not have suspended such laws in apart or the whole ofthe city ofHouston, and, of course, itcannot empower the municipal government to do so. Id. at 824-25. In addition to articulating the principle that only the legislature may suspend the law, McDonald also recognizes the limitation on legislative power embodied in article III, section 56 of the Texas Constitution -the prohibition against legislative enactment of local and special laws. Given that you have already asked whether section 5.123 suspends the law, we assume you intend to ask whether section 5.123 is alocal or special law contrary to article III, section 56. The Texas Supreme Court recently explained the meaning of the terms “local law” and “special law” as follows:

While the terms “local law” and “special law” have at times been used interchangeably, alocal law isone limited to aspecific geographic region of the State, while a special law is limited to a particular class of persons distinguished by some characteristic other than geography. See 1GEORGE D. BRADEN,

THE CONSTITUTION

OFTHE STATE OFTEXAS:ANANNOTATED AND COMPARATIVE

ANALYSIS

273-277 (1977).

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-
The purpose ofSection 56isto“prevent the granting ofspecial privileges and to secure uniformity of law throughout the State as far as possible.” [Miller v. El Paso County, 150 S.W.2d 1000, 1001 (Tex. 1941).] In particular, it prevents lawmakers from engaging in the “reprehensible” practice oftrading votes for the advancement ofpersonal rather than public interests. Id. Maple Run atAustin Mm. Util. Dist. v.Monaghan, 931 S.W.2d 941, 945 (Tex. 1996).9 Section 5.123 does not limit eligibility for pollution control or abatement exemptions to a specific geographic region orto aparticular person or class ofpersons. On its face, section 5.123 isnot a local or special law. We note, however, that the TNRCC, when adopting procedures for obtaining exemptions, granting exemptions, and monitoring compliance with exemption orders, must apply and enforce the law equitably. While the TNRCC is not the legislature and thus is not directly subject to article III, section 56, itmust apply and enforce section 5.123 consistent with state and federal equal protection guarantees.‘O

wile the legislature is authorized to make classifications for legislative purposes,

“the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect to the public purpose sought to be accomplished by the proposed legislation.” Miller, 150 S.W.2d at 1001-02. “The primary and ultimate test ofwhether alaw is general OIspecial iswhether there is a reasonable basis for the classification made by the law, and whether the law operates equally on all within the class.” Rodriguez Y.Gonzales, 148Tex. 537,227 S.W.2d 791,793 (1950). Monaghan, 931 S.W.Zd at 945. Thus, “the ultimate question under Article III, Section 56 is whether there is a reasonable basis for the Legislature’s classification. The significance of the subject matter and the number of persons affected by the legislation are merely factors, albeit important ones, in determining reasonableness.” Id. at947 (citations omitted).

‘me requisites of article III, section 56 and equal protection guarantees are quite similar. See id.

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SUMMARY Water Code section 5.123, as enacted byAct ofMay 24,1997,75th Leg., R.S., ch. 1203, 5 1,does not violate article I, section 28 or article II, section 1ofthe Texas Constitution.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee

- Prepared by Mary R. Crouter

Assistant Attorney General

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