Unconstitutional Delegation of Prosecutorial Discretion in Texas: The Pollution of Environmental Violation Deterrents.

Authors

Suzanne M. Jost

Abstract

The split amongst Texas officials regarding how to address the growing problem of enforcing environmental laws can most clearly be seen in the legislation surrounding environmental crimes. The most notable aspect of the 2003 amendment to the Texas Water Code (TWC) requires permission from the Texas Commission on Environmental Quality (TCEQ) before criminal charges may be brought against permit holders for criminal violations. The purpose of TCEQ’s administrative penalties is to focus primarily on pushing companies into compliance with the code. Yet, the TWC amendment brings the entire spectrum of polluters, from corporate dumpers to individual litterbugs, under its primary jurisdictional umbrella. Nevertheless, the legislation, in attempting to curtail prosecution of polluters has violated the Texas Constitution. The 2003 amendment usurps discretionary powers formerly held by prosecutors, by moving mandated criminal standards under purely administrative control with no direct constitutional supervision. Proponents of the legislation providing TCEQ discretionary power cite the need for the laws to be enforced equally throughout the state, ensuring statewide consistency. Criminal prosecution, however, is considered a more compelling deterrent which will be weakened by Section 7.203 of the Texas Water Code. Even though TCEQ levies its fines, the threat of possible criminal prosecution is a greater incentive for companies to follow the law. Companies compute fines and permit payments into the cost of doing business and may feel the cost of these fines are preferable to the high expense of a cleanup. Conversely, there is no cost-benefit analysis available to compute the price of jail time or criminal records for violating environmental protection laws. The 2003 amendment increases the number of steps to bring charges against polluters. This in turn decreases the priority of environmental protection; ultimately making law enforcement officers less likely to make environmental prosecutions a priority.

Publisher

St. Mary's University School of Law

Recommended Citation

Suzanne M. Jost, Unconstitutional Delegation of Prosecutorial Discretion in Texas: The Pollution of Environmental Violation Deterrents., 36 St. Mary's L.J. (2005).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol36/iss2/5