DAN MORALES 

ATTORNEY CENERAL 

Office of the Elttornep QBeneral 

$&ate of PCexae 

April 14,1998 

Mr. Barry R. McBee 

Chair, Texas Natural Resource 

Conservation Commission 

P.O. Box 13087 

Austin, Texas 7871 l-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 of the Texas Constitution (RQ-975) 

Dear Mr. McBee: 

You ask whether Water Code section 5.123,’ a recently enacted stat&? authorizing the Texas 

Natural Resource Conservation Commission (“TNRCC” or the “commission”) to grant exemptions 

to statutes and commission rules regarding pollution control or abatement, violates the suspension 

of laws’ and separation of powers4 provisions of the Texas Constitution. For the following reasons, 

we conclude that section 5.123 does not run afoul of these provisions. 

Chapter 5 of the Water Code establishes the TNRCC and sets forth its general powers and 

duties. Section 5.123 provides in pertinent as follows: 

(a) The commission by order may exempt an applicant from a 

requirement of a statute or commission rule regarding the control or 

abatement of pollution if the applicant proposes to control or abate pollution 

by an alternative method or by applying an alternative standard that is: 

(1) at least as protective of the 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) 

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(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 as the order prescribes. 

. . . 

(e) A violation of an order issued under this section is punishable as if it 

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 of the Texas Constitution provides that “[n]o power of suspending laws in this 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 is limited ~ or, in other words, that the delegation of authority 

is valid under article II, section 1 of the Texas Constitution. Thus, for example, in Sproles v. Binford 

the United States Supreme Court considered a section 28 challenge to a Texas 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 a constitutional delegation of legislative power. Id. This reasoning has been adopted by at least 

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 of agriculture to promulgate rules making 

exceptions to boll weevil eradication statute prohibiting cotton farming in regulated zones); State 

Bd. of Ins. 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 “if the applicant proposes to control or abate pollution 

by an alternative method or by applying an alternative standard that is at least as protective of the 

SMcDonald Y. Denton, 132 S.W. 823,825 (Tex. Civ. App. 1910, no writ). 

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Mr. Barry R. McBee - Page 3 (DM-474) 

environment and the public health as the method or standard prescribed by the statute or commission 

rule that would otherwise apply.” An order under section 5.123 does not authorize its holder to 

violate a pollution 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 of compliance 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 of Tex. Const. art. II, 5 1 infra 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 are not persuaded that there is a distinction 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 for obtaining an exemption 

must provide for public notice and for public participation in a proceeding involving an application 

for an exemption,6 a process akin to mlemaking procedures.’ Furthermore, each order must comport 

with the same basic standard that the approved alternative method or standard be “at least as 

protective of the environment and the public health.“* While we appreciate that it may be a greater 

challenge for the public to monitor and participate in an untold number of exemption proceedings 

than to monitor and participate in a few rulemaking proceedings, we do not view this as a tenable 

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 a case-by-case basis. See also Sum Houston Life 

Ins. Co., 344 S.W.2d 709 (condoning statute authorizing Board of Insurance Commissioners to make 

by order case-by-case exceptions to statutory tiling requirements). 

Section 5.123 is unique in its scope. Unlike the statutes at issue in the cases discussed above, 

it does not authorize the TNRCC to make exemptions to just one statute. Rather, it authorizes the 

commission to make exemptions to a broad class of statutes. We do not believe this difference is 

significant for purposes of section 28, however. Clearly, the legislature would not run afoul of the 

suspension of laws provision if it amended a particular pollution control or abatement statute to 

6Water Code 5 5.123(b). 

‘See Gov’t Code ch. 2001, subchap. B (Administrative Procedure Act provisions governing mlemaking). 

*See also discussion of local and special laws and equal protection guarantees infia pp. 5-6. 

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Mr. Barry R. McBee - Page 4 (DM-474) 

authorize the TNRCC to grant applications permitting compliance by alternative means that conform 

with a particular 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, it is not our role to evaluate the wisdom of the 

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 is a valid delegation of legislative authority. Article 

II, section 1, the separation of powers provision, requires that any delegation of legislative authority 

to an administrative agency be “‘reasonably clear and hence acceptable as a standard of 

measurement.“’ Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454,467 (Tex. 

1997). As the Texas Supreme Court recently stated, 

The Texas Legislature may delegate its powers to agencies established to 

carry out legislative purposes, as long as it establishes “reasonable standards 

to guide the entity to which the powers are delegated.” Railroad Comm ‘n v. 

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 of legislative authority, Lewellen, 952 S.W.2d at 467-68, except in cases where 

the delegation is so vague that it provides no legislative standards, id. at 468-69. 

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 ‘n of Texas 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 of Health 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. of Health, 364 

S.W.2d 755, 756-57 (Tex. Civ. App.--Dallas 1963, no writ) (upholding delegation of legislative 

authority to state board of health 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 of hospitals”); 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 of water engineers to determine whether permit application “detrimental to the 

public welfare”). 

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Mr. Barry R. McBee - Page 5 (DM-474) 

Section 5.123 authorizes the TNRCC to grant exemptions to pollution abatement statutes and 

rules to applicants who propose to abate pollution by alternative methods provided that the 

alternative method is “at least as protective of the environment and the public health as the method 

or standard prescribed by the statute or commission rule that would otherwise apply.” This 

delegation of authority articulates a broad standard comparable to the broad standards approved in 

the authorities cited above. While there may be some debate whether a particular alternative method 

satisfies the requirement that it be “at least as protective of the environment and the public health 

as the method or standard prescribed by the statute or commission rule that would otherwise apply,” 

we believe a court would conclude that this language satisfies the dictates of article II, section 1. 

Assuming section 5.123 does not authorize the TNRCC to suspend the law and is a 

permissible delegation of legislative 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 be made on a case-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 a limited 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 a part or the whole of the city of Houston, and, of 

course, it cannot 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 a local 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, a local law is one limited to a specific 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 1 GEORGE D. 

BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND 

COMPARATIVE ANALYSIS 273-277 (1977). 

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Mr. Barry R. McBee - Page 6 (DM-474) 

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The purpose of Section 56 is to “prevent the granting of special 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 of trading votes for the advancement of personal rather than public 

interests. Id. 

Maple Run at Austin 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 or to a particular person or class of persons. On its face, section 5.123 is not 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, it must 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 of whether a law is general OI special is whether 

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, 148 Tex. 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. at 947 

(citations omitted). 

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

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Mr. Barry R. McBee - Page 7 (DM-474) 

SUMMARY 

Water Code section 5.123, as enacted by Act ofMay 24,1997,75th Leg., 

R.S., ch. 1203, 5 1, does not violate article I, section 28 or article II, section 

1 of the Texas Constitution. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

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Prepared by Mary R. Crouter 

Assistant Attorney General 

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