State of Texas v. Rhine, Michael Joseph ( 2009 )


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  •                IN THE COURT OF CRIMINAL APPEALS
                               OF TEXAS
                                              NO. PD-0912-08
    
    
    
                                          THE STATE OF TEXAS
    
                                                    v.
    
                                  MICHAEL JOSEPH RHINE, Appellee
    
                ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                       FROM THE SECOND COURT OF APPEALS
                                 DENTON COUNTY
    
               K ELLER, P.J., filed a concurring opinion in which M EYERS, H ERVEY,
    and H OLCOMB, JJ., joined.
    
    
    
           We granted review to determine whether the penal offense with which appellee was
    
    charged—violation of outdoor burning regulations1 for which a criminal penalty is attached under
    
    the Water Code2—violates the separation-of-powers provision of the Texas Constitution.3 In support
    
    
    
           1
               See TEX . ADMIN . CODE, Title 30, Chapter 111.
           2
               T EX . WATER CODE §§7.177(a)(5), (b) and 7.187(1)(B), (2)(C).
           3
               T EX . CONST ., Art. II, §1.
                                                                        RHINE CONCURRENCE – 2
    
    of his ground for review, appellee argues that the court of appeals engaged in an improper “lockstep”
    
    analysis with federal decisional law that was based on a Texas Supreme Court case that made the
    
    same mistake. In a wide-ranging discussion, he quotes from James Madison and Thomas Jefferson,
    
    traces the development of the doctrine of separation of powers from John Locke to the Continental
    
    Congress, examines the historical developments surrounding the framing of the constitutions of the
    
    United States, Virginia, Kentucky, and Texas, and evaluates the jurisprudence of Texas and other
    
    states. From this discussion, appellee argues that Madison and Jefferson had rival conceptions of
    
    the doctrine of separation of powers. He contends that Madison’s more liberal, “balance of power”
    
    approach ultimately prevailed with respect to the United States Constitution, which has no express
    
    separation-of-powers provision, but that Jefferson’s formalist, strict separation approach has
    
    prevailed in many states, including Texas, that adopted an express separation-of-powers provision
    
    modeled after the one Jefferson formulated. Appellee argues that the strict separation approach
    
    prohibits the Legislature from delegating to an executive agency the ability to enact rules that fix
    
    elements of criminal offenses. He argues alternatively that, under either a restrictive or liberal
    
    approach, the legislative delegation fails to provide sufficient guidance to the administrative agency
    
    on what types of outdoor burning may be prohibited.
    
           Though the Court spends a great deal of time setting forth various statutory provisions and
    
    administrative regulations,4 it addresses in only the most cursory fashion appellee’s argument for a
    
    more restrictive approach to the doctrine of separation of powers, citing a few cases and saying that
    
    his claim of strict interpretation ignores precedent from this Court and the Texas Supreme Court.5
    
    
           4
               See Court’s op., passim.
           5
               Id. at 3.
                                                                          RHINE CONCURRENCE – 3
    
            We have stated that “[a]s a general proposition, reviewing courts ought to mention a party’s
    
    number one argument and explain why it does not have the persuasive force that the party thinks it
    
    does.”6 Especially considering the quality of the briefing in this case, and the potentially far-reaching
    
    consequences of our decision, it is essential to address appellee’s principal contentions. Since the
    
    Court does not do so, I shall.
    
                                          A. Preservation of Error
    
            But first I address a preservation-of-error argument advanced by the Texas Commission on
    
    Environmental Quality (“TCEQ”) in its amicus brief. Though the argument is raised for the first
    
    time on discretionary review, “preservation of error is a systemic requirement that must be reviewed
    
    by the courts of appeals regardless of whether the issue is raised by the parties,” and so inquiry even
    
    at this late stage may be appropriate.7 Moreover, we have “recognized the desirability of avoiding
    
    the adjudication of constitutional issues when at all possible,” and great care should be taken
    
    especially when resolution of the constitutional issue “threatens to overturn the acts of another
    
    branch of government.”8
    
            TCEQ contends that appellee has forfeited his right to urge his restrictive interpretation of
    
    the doctrine of separation of powers because he did not raise it before the trial court9 and because
    
    
    
            6
                Sims v. State, 
    99 S.W.3d 600
    , 603 (Tex. Crim. App. 2003).
            7
                Haley v. State, 
    173 S.W.3d 510
    , 515 (Tex. Crim. App. 2005).
            8
                Pena v. State, 
    191 S.W.3d 133
    , 136, 136-37 (Tex. Crim. App. 2006).
            9
             Appellee claims that the issue was raised because he objected at trial to the State’s reliance
    on federal decisional authority and the trial court suggested that federal authority was “persuasive”
    and “not mandatory on us.” I do not address this contention because, below, I accept his legal
    argument that he had no obligation to preserve error.
                                                                            RHINE CONCURRENCE – 4
    
    the court of appeals did not address it.10 It is true that, by relying solely upon federal constitutional
    
    authority at trial, an appealing party can forfeit a claim that the Texas Constitution provides more
    
    expansive protections.11 But appellee won at trial, so the appellate court could affirm on a legal
    
    theory not presented to the trial court.12 And because appellee did not even have to file a brief in the
    
    court of appeals, the failure of the court of appeals to address his legal contentions does not preclude
    
    us from doing so.13
    
                                             B. Separation of Powers
    
                          1. Is the Texas Constitutional Provision More Restrictive?
    
            The United States Constitution contains no express separation-of-powers provision.
    
    Separation of powers is implied through the federal constitution’s structure, dividing government
    
    into three branches, and through vesting into each branch its particular power, legislative, executive,
    
    or judicial, as the case may be.14 With respect to legislative power, the United States Constitution
    
    provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United
    
    
    
    
            10
               TCEQ does not dispute that appellee raised the issue before the court of appeals but claims
    that the court of appeals correctly refused to address the issue because he had failed to raise it at trial.
            11
               See Pena v. State, 
    285 S.W.3d 459
     (Tex. Crim. App. 2009)(by failing to raise it at trial,
    defendant forfeited claim that the Texas Constitution’s Due Course of Law clause provided more
    protection than Due Process under the federal constitution with respect to the destruction of
    potentially exculpatory evidence).
            12
                 Hailey v. State, 
    87 S.W.3d 118
    , 121 (Tex. Crim. App. 2002).
            13
             Rhodes v. State, 
    240 S.W.3d 882
    , 886 n.9 (Tex. Crim. App. 2007); Volosen v. State, 
    227 S.W.3d 77
    , 80 (Tex. Crim. App. 2007).
            14
                 U.S. Const., Arts. I, §1, II, §1, III, §1.
                                                                        RHINE CONCURRENCE – 5
    
    States.”15
    
            By contrast, the Texas Constitution contains the following express separation-of-powers
    
    provision:
    
            The powers of the Government of the State of Texas shall be divided into three
            distinct departments, each of which shall be confided to a separate body of
            magistracy, to wit: Those which are Legislative to one; those which are Executive
            to another, and those which are Judicial to another; and no person, or collection of
            persons, being of one of these departments, shall exercise any power properly
            attached to either of the others, except in the instances herein expressly permitted.16
    
    This has been identified as a “strict” separation-of-powers provision, and thirty-five states have such
    
    a provision.17 All other things being equal, this textual difference between the United States and
    
    Texas constitutions suggests that Texas would more aggressively enforce separation of powers
    
    between its governmental branches than would the federal government.
    
            That conclusion is buttressed by historical developments surrounding the framing of the
    
    United States and Texas constitutions. Madison is generally credited as the principal author of the
    
    United States Constitution, and he did indicate that the principle of separation of powers was of the
    
    utmost importance: “If there is a principle in our Constitution, indeed in any free Constitution more
    
    sacred than another, it is that which separates the legislative, executive and judicial powers.”18
    
    
            15
                 Id., Art. I, §1.
            16
             T    EX . CONST .,     Art. II, §1.
            17
              Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of
    Powers Ideals in the States, 52 VAND . L. REV . 1167, 1190-91 (1999). Five states have a “general”
    separation-of-powers provision, and the remaining ten states have no express separation-of-powers
    provision. Id. at 1191.
            18
              Fletcher v. Office of the Attorney General ex rel. Stumbo, 
    163 S.W.3d 852
    , 861 (Ky.
    2005)(quoting Madison, Speech on the Floor of the House of Representatives, June 22, 1789, in 1
    Annals of Congress 581).
                                                                        RHINE CONCURRENCE – 6
    
    Nevertheless, his arguments in defense of the Constitution in the Federalist Papers indicate that he
    
    was more concerned with checks and balances between the various branches than with maintaining
    
    strict separation. It was Madison’s view that the principle behind the doctrine of separation of
    
    powers was violated only when “the whole power of one department is exercised by the same hands
    
    which possess the whole power of another department.”19 He further contended that “a mere
    
    demarcation on parchment of the constitutional limits of the several departments is not a sufficient
    
    guard against” the tyrannical concentration of power.20 Rather, the three branches must be “so far
    
    connected and blended as to give to each a constitutional control over the others.”21
    
           Jefferson, too, was concerned with checks and balances, but he also wanted a strong
    
    statement concerning the separation of powers. In his Notes on the State of Virginia he said that “the
    
    powers of government should be so divided and balanced among several bodies of magistracy, as
    
    that no one could transcend their legal limits, without being effectually checked and restrained by
    
    the others.”22 Jefferson believed that the “legislative, executive and judiciary department should be
    
    separate and distinct, so that no person should exercise the powers of more than one of them at the
    
    same time” and a “barrier” should be “provided between these several powers.”23 Most importantly,
    
    Jefferson’s proposed constitution for Virginia, contained in an appendix to his Notes, included an
    
    
           19
             The Federalist Papers (Signet Classic edition 2003, ed. by Clinton Rossiter), No. 47, p.
    299 (emphasis in original).
           20
                Id., No. 48 at p. 310.
           21
                Id. at p. 305.
           22
              Notes on the State of Virginia (Selected Writings Jefferson 1979, ed. by Harvey C.
    Mansfield, Jr.), Query XIII: Constitution, p. 30.
           23
                Id.
                                                                          RHINE CONCURRENCE – 7
    
    express separation-of-powers clause that is almost identical to the one found in the Texas
    
    Constitution.24 The high courts in Kentucky and Louisiana have recognized Jefferson as the author
    
    of their similarly-worded separation-of-powers provisions.25 According to an account given by the
    
    Supreme Court of Kentucky, Jefferson told John Breckinridge and George Nicholas “that there was
    
    a danger in the federal constitution because the clause defining the powers of the departments of
    
    government was not sufficiently guarded, and that the first thing to be provided for by the Kentucky
    
    constitution should be to confine the judiciary to its powers, and the legislative and executive to
    
    theirs.”26
    
            In some contexts, the Supreme Court has recognized a vigorous role for the doctrine of
    
    separation of powers: “[T]he doctrine of separation of powers is a structural safeguard . . . a
    
    prophylactic device, establishing high walls and clear distinctions because low walls and vague
    
    distinctions will not be judicially defensible in the heat of interbranch conflict.”27 As recently as last
    
    
    
            24
            Notes on the State of Virginia (Penguin Classics 1999, ed. by Frank Shuffelton), paragraph
    immediately preceding heading entitled “I. Legislature,” p. 218, providing:
    
            The powers of government shall be divided into three distinct departments, each of
            them to be confided to a separate body of magistracy; to wit: those which are
            legislative to one, those which are judiciary to another, and those which are executive
            to another. No person, or collection of persons, being of one of these departments,
            shall exercise any power properly belonging to either of the others, except in the
            instances hereinafter expressly permitted.
            25
             Fletcher, 163 S.W.3d at 861; State v. All Pro Paint & Body Shop, 
    639 So. 2d 707
    , 712 n.7
    (La. 1994).
            26
                Fletcher, 163 S.W.3d at 861. The Kentucky court acknowledged that this account was
    first related in an 1898 Kentucky opinion by Judge Du Relle with no citation to authority. Id. at 861
    n.3.
            27
                 Plaut v. Spendthrift Farm, 
    514 U.S. 211
    , 239 (1995)(emphasis in original).
                                                                       RHINE CONCURRENCE – 8
    
    year, the Supreme Court invalidated a President’s action as intruding upon Congress’s exclusive
    
    authority to make law.28 The Supreme Court of Kentucky has remarked, “The United States
    
    Supreme Court has consistently allayed Jefferson’s purported fears.”29
    
           But with respect to the legislative delegation of power to executive agencies, the same
    
    Kentucky court characterized the Supreme Court’s enforcement of separation of powers as
    
    “toothless” and “feeble.”30 Though the Supreme Court has developed a nondelegation doctrine,31
    
    it has found a delegation of authority to an administrative agency to violate separation of powers on
    
    only three occasions, all of which were during the New Deal era.32 That was when the “court-
    
    packing” controversy occurred, after which the Supreme Court declined to overturn any more
    
    administrative legislation.33 “[T]he notion that the Constitution narrowly confines the power of
    
    Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930s,
    
    has been virtually abandoned by the Court for all practical purposes.”34 The Supreme Court of
    
    Florida has called the federal approach to the nondelegation doctrine a “nondoctrine,” saying that
    
    
    
    
           28
                Medellin v. Texas, 
    128 S. Ct. 1346
    , 1367-72 (2008).
           29
                Fletcher, 163 S.W.3d at 861 (citing cases).
           30
                Board of Trustees v. Attorney General, 
    132 S.W.3d 770
    , 782, 784 (Ky. 2003)
           31
                Panama Refining Co. v. Ryan, 
    293 U.S. 388
     (1935).
           32
              See Texas Boll Weevil Eradication Found. v. Lewellen, 
    952 S.W.2d 454
    , 467 (Tex. 1997);
    see also Barco Beverage Corp. v. Indiana Alcoholic Beverage Comm’n, 
    595 N.E.2d 250
    , 254 (Ind.
    1992).
           33
                B.H. v. State, 
    645 So. 2d 987
    , 990 (Fla. 1994).
           34
                Barco Beverage Corp., 595 N.E.2d at 254.
                                                                        RHINE CONCURRENCE – 9
    
    the Supreme Court has essentially abdicated any responsibility to act in the matter.35 Due to
    
    differences in the text of state and federal constitutions and the history of federal jurisprudence, at
    
    least some state courts have expressly declared that federal authority is not persuasive in this area
    
    of the law.36
    
            In a context other than legislative delegation, this Court has enforced the doctrine of
    
    separation of powers more aggressively than the United States Supreme Court has. In Meshell v.
    
    State, we held the Texas Speedy Trial Act unconstitutional because the time limits imposed on
    
    criminal prosecutions were an unlawful encroachment on the exclusive discretion of the
    
    prosecutor–a member of the judicial branch.37 By contrast, the federal Speedy Trial Act remains
    
    vital.38 There are several aspects to the doctrine of separation of powers. If Texas and federal
    
    jurisprudence differ in one aspect, the chances are good that they differ in other aspects as well. If
    
    Texas defends more vigorously the dividing line between the legislative and judicial branches,39 then
    
    
            35
                 B.H., 645 So. 2d at 992 n.3.
            36
              Id. at 990-92; Bloemer v. Turner, 
    281 Ky. 832
    , 838, 
    137 S.W.2d 387
    , 390 (1939); Board
    of Trustees, 132 S.W.3d at 781-82; Alexander v. State, 
    441 So. 2d 1329
    , 1335 (Miss. 1983). See also
    State ex rel. King v. Morton, 
    955 So. 2d 1012
    , 1020 n.10 (Ala. 2006)(observing that some
    commentators have suggested that textual divergence renders federal authority “not pertinent to a
    discussion of the requirements of a state constitution”). But see David v. Vesta Co., 
    45 N.J. 301
    ,
    323-24, 
    212 A.2d 345
    , 357 (1965)(“But a strict interpretation of the principle, rigidly classifying all
    governmental action as legislative, executive, or judicial was never intended by Montesquieu . . . by
    the founding fathers of our federal system, or by the drafters of our State Constitutions”); Boreali
    v. Axelrod, 
    71 N.Y.2d 1
    , 10 n.1, 
    517 N.E.2d 1350
    , 1354 n.1 (Ct .App.1987)(line of cases based upon
    Panama Refining has rightfully fallen into disrepute).
            37
                 
    739 S.W.2d 246
    , 253, 257 (Tex. Crim. App. 1987).
            38
                 See Zedner v. United States, 
    547 U.S. 489
     (2006).
            39
              See also Armadillo Bail Bonds v. State, 
    802 S.W.2d 237
    , 239-241 (Tex. Crim. App.
    1990)(separation-of-powers violation for legislature to require a delay of entry of judgment in bail
                                                                      RHINE CONCURRENCE – 10
    
    it would likely also defend more vigorously the line between the legislative and executive branches.
    
    Because defense of the nondelegation line between the legislative and executive branches in the
    
    federal system is almost nonexistent, it stands to reason that defense of that line in the Texas state
    
    system would be more robust.40
    
                          2. Are Criminal Sanctions Categorically Prohibited?
    
           I begin with appellee’s contention that the Legislature can never delegate the power to fix
    
    elements of a criminal offense. Appellee cites two Texas cases, Ex parte Humphrey41 and Ex parte
    
    Leslie,42 for the proposition that “the authority to define crimes, and to fix punishments for those
    
    crimes, is vested exclusively in the Legislature.” But both decisions recognized the ability of the
    
    Legislature to attach criminal penalties to the violation of a regulation under the proper conditions:
    
           Judicial sanction has often been given to the exercise of the power to, by law,
           prescribe the punishment for the violation of the regulations of a board or
           commission, upon the theory that, observing proper limitations, such an act is not
           obnoxious to the principle denying to the Legislature the power to delegate its
           authority.
    
                                                    ***
    
           The power to make laws is placed by the people through the Constitution upon the
    
    
    bond forfeiture proceedings).
           I recognize that the prosecutor is part of the executive branch in the federal system.
           40
              Appellee also cites the Texas constitutional convention debates of 1845 to show that the
    Texas framers were concerned about the principle of separation of powers in discussing whether the
    Secretary of State should be an elected or appointed office and whether to give the Governor the
    right to veto legislation. Having already accepted the proposition that the Texas Constitution
    enforces a stricter doctrine of separation of powers than the United States Constitution, I need not
    consider whether these debates indirectly lend further support to that proposition.
           41
                
    92 Tex. Crim. 501
    , 
    244 S.W. 822
     (1922).
           42
                
    87 Tex. Crim. 476
    , 
    223 S.W. 227
     (1920).
                                                                      RHINE CONCURRENCE – 11
    
           Legislature. The rights of individuals are guarded by restrictions touching the
           enactment and publication of laws, and the privilege is afforded of presenting by
           petition or appearance before the legislative committees opposition to proposed
           enactments affecting the property or the liberty of the citizen. A completed law, if
           penal in its effect, must define the act or omission denounced as criminal to some
           degree of certainty.
    
                                                   ***
    
           In conferring upon an instrument of government, such as the live stock sanitary
           commission, the power to make rules, the nonobservance of which constitutes a
           criminal offense, it is deemed necessary that the Legislature define the power and
           place limitations upon the authority to promulgate rules, to the end that they may not
           be lacking in the essential elements of a law denouncing an offense.43
    
           Moreover, early Texas caselaw contains examples of this Court upholding laws that
    
    criminally punish the violation of an administrative regulation. In Smith v. State, the defendant was
    
    prosecuted for driving cattle across a quarantine line.44 We held that the Legislature did not
    
    unconstitutionally delegate lawmaking authority to the Live Stock Sanitary Commission; rather, the
    
    Commission was acting “under specific command of the Legislature in establishing those lines
    
    whenever they deemed it was necessary to do so to protect the live stock of this state from splenetic
    
    fever, or infectious or contagious diseases.”45 In Williams v. State, the defendant was convicted of
    
    growing cotton in an area designated by the Pink Bollworm Commission as a regulated zone and in
    
    violation of regulations promulgated by the Commissioner on Agriculture.46 We held that the
    
    Legislature did not improperly delegate its authority:
    
    
           43
              Leslie, 87 Tex. Crim. at 478-79, 223 S.W. at 226-28; see also Humphrey, 92 Tex.
    Crim. at 505, 244 S.W. at 824 (quoting first two paragraphs from Leslie above).
           44
                
    74 Tex. Crim. 232
    , 
    168 S.W. 522
     (1914).
           45
                Id. at 234, 168 S.W. at 523.
           46
                
    146 Tex. Crim. 430
    , 
    176 S.W.2d 177
     (1943).
                                                                        RHINE CONCURRENCE – 12
    
           The generally accepted rule governing such matters now appears to be that a
           legislative body may, after declaring policy and fixing a primary standard, confer
           upon executive or administrative officers the power to fill up the details, by
           prescribing rules and regulations to promote the purpose and spirit of the legislation
           and to carry it into effect. In such cases the action of the Legislature in giving such
           rules and regulations the force of laws does not violate the constitutional inhibition
           against delegating the legislative function.47
    
           In reviewing the jurisprudence of other states, appellee comments that he “has discovered no
    
    decisional law, in either these States [with a strict separation-of-powers provision] or in those others
    
    that have less specific provisions, in which a State legislature has been constitutionally permitted to
    
    delegate to a state agency the legislative authority to define the elements of a criminal offense.”48
    
    He contends, however, that decisional law from other states is instructive, and he discusses a case
    
    from Kentucky,49 a case from Florida,50 and a Texas case that relies upon authority from Indiana,
    
    Missouri, and Alabama.51 His discussion of these cases reveals that they are relevant only to the
    
    extent that they advocate, in general, a restrictive approach to separation of powers—a proposition
    
    that I have already accepted.
    
           But, in fact, many states have addressed the delegation question with respect to criminal
    
    offenses, and the weight of authority is against appellee’s contention that the fixing of elements of
    
    criminal offenses can never be delegated. Cases from courts of last resort in eight states have
    
    holdings and contain language that might suggest that criminal offenses are simply off limits when
    
    
           47
                 Id. at 438, 176 S.W.2d at 183.
            48
                 Emphasis in appellee’s brief.
           49
                 Fletcher v. Commonwealth.
           50
                 Askew v. Cross Key Waterways, 
    372 So. 2d 913
     (Fla. 1979).
           51
                 Snodgrass v. State, 
    150 S.W. 162
     (Tex. Crim. App. 1912).
                                                                       RHINE CONCURRENCE – 13
    
    it comes to delegating authority to an administrative agency.52 But later cases in four of those states
    
    have held that such a reading is too broad and that delegation is permissible if certain conditions are
    
    met.53 A reading of the opinions in the remaining four states suggests that there may also be bases
    
    for distinguishing or limiting their holdings.54 And a number of other states have upheld legislative
    
    delegations that involve elements of criminal offenses.55 Some of these delegations occurred in
    
    
           52
               B.H., 645 So. 2d at 992-93 (escape from detention facility level 6 or above); Sundberg v.
    State, 
    234 Ga. 482
    , 484, 
    216 S.E.2d 332
    , 333 (1975)(controlled substances act); Howell v. State, 
    238 Ga. 95
    , 95-96, 
    230 S.E.2d 853
    , 853-54 (1976)(Dept. of Nat. Res firearm regulation); Bloemer v.
    Turner, 
    281 Ky. 832
    , 840, 
    137 S.W.2d 387
    , 392 (1939)(dog food regulation); State v. Broom, 
    439 So. 2d 357
    , 369 (La. 1983)(op. on rehearing)(explosives regulation); State v. Raccagno, 
    530 S.W.2d 699
    , 702-03 (Mo. 1975)(tax stamp regulation); State v. Gallion, 
    572 P.2d 683
    , 688-90 (Utah
    1977)(controlled substances act); State v. Grinstead, 
    157 W. Va. 1001
    , 1012-13, 
    206 S.E.2d 912
    ,
    920 (1974)(same); State v. Grimshaw, 
    49 Wyo. 192
    , 210, 
    53 P.2d 13
    , 19 (1935)(transporting goods
    without a permit).
           53
               Avatar Dev. Corp. v. State, 
    723 So. 2d 199
    , 203-04 (Fla. 1998)(failure to comply with
    environmental permit condition)(distinguishing B.H.); All Pro Paint & Body Shop,639 So.2d at 713-
    14 (hazardous waste)(distinguishing Broom); State v. Thompson, 
    627 S.W.2d 298
    , 302-03 (Mo.
    1982)(controlled substances act)(distinguishing Raccagno); Found. for Indep. Living v. Cabell-
    Huntington Board of Health, 
    214 W. Va. 818
    , 829-31, 
    591 S.E.2d 744
    , 755-57 (2003)(clean indoor
    air regulations)(distinguishing Grinstead).
           54
               Howell, 238 Ga. at 95, 230 S.E.2d at 853 (regulations could be made basis of criminal
    prosecution if the enabling statute “limited the power to promulgate rules . . . in harmony with what
    the Assembly has already declared to be a crime”); Bloemer, 281 Ky. at 840, 137 S.W.2d at 391-92
    (discussing adequacy of statutory standards); Gallion, 572 P.2d at 687 (delegation was to attorney
    general, a specific person within the executive department, separation-of-powers provision was
    directed at a “person” and did not apply to administrative agencies); Grimshaw, 49 Wyo. at 210-11,
    53 P.2d at 19 (no fixed standard where order or decision of agency could be overturned on review);
    but see Wyoming Coalition v. Wyoming Game & Fish Comm’n, 
    875 P.2d 729
    , 732 (Wyo.
    1994)(construing Grimshaw in dicta to mean that “an agency may not define a standard of conduct
    pursuant to which an individual might be adjudged a criminal”).
           55
               Ex parte McCurley, 
    390 So. 2d 25
    , 26-29 (1980)(controlled substances act); State v.
    Williams, 
    119 Ariz. 595
    , 598-99, 
    583 P.2d 251
    , 254-55 (1978)(food stamps); Curry v. State, 
    279 Ark. 153
    , 158-60, 
    649 S.W.2d 833
    , 836-37 (1983)(controlled substances act); People v. Lowrie, 
    761 P.2d 778
    , 780-84 (Colo. 1988)(sex acts in liquor establishment); State v. Kellogg, 
    98 Idaho 541
    , 542-
    45, 
    568 P.2d 514
    , 515-18 (1977)(controlled substances act); State v. Turmon, 
    417 Mich. 638
    , 643-53,
                                                                       RHINE CONCURRENCE – 14
    
    connection with a state’s controlled substances act, which carried felony penalties,56 and courts have
    
    observed that permitting delegation in that context is the “majority view” of those jurisdictions
    
    addressing the issue.57
    
           Appellee’s argument also runs up against a practical consideration. The regulation at issue
    
    has both civil and criminal penalties. The penalties themselves are statutory.58 Is an administrative
    
    rule any less “legislative” if it carries only a civil penalty rather than a criminal one? The criminal
    
    nature of the penalty makes a difference for many constitutional provisions that directly protect the
    
    citizen from the government: due process and the right to a jury trial, for example. But separation
    
    of powers is concerned with the government’s relationship with itself rather than with citizens who
    
    may be potential rule-breakers.
    
                        3. What is the scope of the Texas Constitutional provision?
    
    
    
    
    
    340 N.W.2d 620
    , 623-27 (1983)(same, but also discussing prior case involving criminal penalties
    attached to violation of open season declarations regarding birds, fish, and fur-bearing animals);
    State v. Cutright, 
    193 Neb. 303
    , 304-07, 
    226 N.W.2d 771
    , 773-74 (1975)(swimming in a restricted
    area)(but distinguishing between a legislative definition of the crime that incorporates a regulation
    and a statute that simply criminalizes the violation of a regulation); State v. Switzer, 
    22 Ohio St. 2d 47
    , 51-53, 
    257 N.E.2d 908
    , 911-12 (1970)(possession of undersized fish); State v. Peloquin, 
    427 A.2d 1327
    , 1329-31 (R.I. 1981)(controlled substances act); State v. Moschell, 
    2004 SD 35
    , P13-25,
    
    677 N.W.2d 551
    , 558-60 (2004)(hunting, taking, and transportation of wild animals)(criticizing
    Broom).
           56
               See McCurley v. State, 
    390 So. 2d 15
    , 16 (Ala. Crim. App. 1980)(punishment imposed
    was four years in penitentiary probated to twelve months in jail); Kellogg, 98 Idaho at 542, 568 P.2d
    at 515 (offense punishable by up to three years of imprisonment); Turmon, 471 Mich. at 653, 340
    N.W.2d at 627 (controlled substances act creates felonies, no meaningful difference from delegation
    perspective between felonies and misdemeanors).
           57
              Curry, 279 Ark. at 159, 649 S.W.2d at 837; Turmon, 417 Mich. at 648 n.4, 340 N.W.2d
    at 625 n.4.
           58
                See this opinion footnote 2 (criminal penalties); TEX . WATER CODE §7.102 (civil penalty).
                                                                      RHINE CONCURRENCE – 15
    
           In Field v. Clark, a late nineteenth-century case, the United States Supreme Court quoted a
    
    Pennsylvania decision for the distinction between a law that properly confers administrative authority
    
    and one that improperly delegates legislative authority:
    
           The legislature cannot delegate its power to make a law; but it can make a law to
           delegate a power to determine some fact or state of things upon which the law makes
           or intends to make, its own action depend. To deny this would be to stop the wheels
           of government. There are many things upon which wise and useful legislation must
           depend which cannot be known to the law-making power, and, must, therefore, be
           a subject of inquiry and determination outside of the halls of legislation.59
    
    This Court and the vast majority of other state courts of last resort have quoted from this passage
    
    with approval (including the high courts in Florida and Kentucky, upon which appellee relies
    
    most).60
    
    
           59
                
    143 U.S. 649
    , 694 (1892)(quoting Locke’s Appeal, 
    72 Pa. 491
    , 498 (1873)).
           60
               Williams, 146 Tex. Crim. at 438, 176 S.W.2d at 183; Monroe v. Harco, Inc., 
    762 So. 2d 828
    , 831 (Ala. 2000); State v. Arizona Mines Supply Co., 
    107 Ariz. 199
    , 205, 
    484 P.2d 619
    , 625
    (1971); Swanberg v. Tart, 
    300 Ark. 304
    , 311, 
    778 S.W.2d 931
    , 934 (1989); Kugler v. Yocum, 
    69 Cal. 2d
     371, 376, 
    445 P.2d 303
    , 306 (1968); People v. Gallegos, 
    644 P.2d 920
    , 929 (Colo. 1982); Kellems
    v. Brown, 
    163 Conn. 478
    , 500, 
    313 A.2d 53
    , 64-65 (1972); Avatar Dev. Corp., 723 So. 2d at 204;
    Telford v. Gainesville, 
    208 Ga. 56
    , 63, 
    65 S.E.2d 246
    , 251 (1951); Kellogg, 98 Idaho at 543, 568
    P.2d at 516; People ex rel. Adamowski v. Chicago Land Clearance Com., 
    14 Ill. 2d 74
    , 80, 
    150 N.E.2d 792
    , 796 (1958); Stanton v. Smith, 
    429 N.E.2d 224
    , 228 (Ind. 1981); AFSCME/Iowa Council
    61 v. State, 
    484 N.W.2d 390
    , 394 (Iowa 1992); State ex rel. Hawks v. Topeka, 
    176 Kan. 240
    , 246
    
    270 P.2d 270
    , 276 (1954); Fletcher, 163 S.W.3d at 862; All Pro Paint & Body Shop, 639 So. 2d at
    711; Kovack v. Licensing Board, Waterville, 
    157 Me. 411
    , 418, 
    173 A.2d 554
    , 558 (1961);
    Nottingham Village, Inc. v. Baltimore County, 
    266 Md. 339
    , 351, 
    292 A.2d 680
    , 686 (1972); Taylor
    v. Smithkline Beecham Corp., 
    468 Mich. 1
    , 9 n.7, 
    658 N.W.2d 127
    , 132 n.7 (2003); Hassler v.
    Engberg, 
    233 Minn. 487
    , 515, 
    48 N.W.2d 343
    , 360 (1951); Clark v. State, 
    381 So. 2d 1046
    , 1050
    (Miss. 1980); Thompson, 627 S.W.2d at 303; State v. Stark, 
    100 Mont. 365
    , 371, 
    52 P.2d 890
    , 893
    (1935); Searle v. Yensen, 
    118 Neb. 835
    , 842-43, 
    226 N.W. 464
    , 467 (1929); Villanueva v. State, 
    117 Nev. 664
    , 668, 
    27 P.3d 443
    , 446 (2001); Little Ferry v. Bergen County Sewer Authority, 
    9 N.J. 536
    ,
    543, 
    89 A.2d 18
    , 23 (1952); State ex rel. State Park & Recreation Comm’n v. New Mexico State
    Auth., 
    76 N.M. 1
    , 10, 
    411 P.2d 984
    , 991 (1966); Peacock v. County of Scotland, 
    262 N.C. 199
    , 203-
    04, 
    136 S.E.2d 612
    , 615 (1964); North Dakota Council of Sch. Adm’rs v. Sinner, 
    458 N.W.2d 280
    ,
    286 (1990); Switzer, 22 Ohio St. 2d at 52-53, 257 N.E.2d at 912; Burger v. Gorden, 
    380 P.2d 687
    ,
    690 (Okla. 1963); Savage v. Martin, 161 Ore. 660, 697, 
    91 P.2d 273
    , 288 (1939); Terry v. Pratt, 258
                                                                      RHINE CONCURRENCE – 16
    
           Beyond agreement on this passage, there are various approaches and nuances in the states
    
    with respect to the issue of nondelegation. One scholar has grouped the states into three broad
    
    nondelegation categories: weak, moderate, and strong.61 Notably, in the “strong” nondelegation
    
    category, he has included Texas, Florida, Arizona, Illinois, Kentucky, Massachusetts, Montana,
    
    Nebraska, Nevada, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South
    
    Dakota, South Carolina, Virginia, and West Virginia.62 Louisiana, the state other than Kentucky to
    
    recognize the Jeffersonian origin of its “strict” separation-of-powers provision, is categorized as a
    
    “moderate” nondelegation state.63 New York, Ohio, and Pennsylvania have no express separation-
    
    of-powers clause, New Hampshire and South Dakota have a “general” provision, and the remaining
    
    states in the “strong” category, like Texas, have a “strict” provision expressly requiring separation
    
    of the branches of government.64 Whether the characterization of how strongly various states enforce
    
    the nondelegation doctrine was correct when made or remains correct today is a difficult matter to
    
    ascertain without close familiarity with the jurisprudence of every state in the country. But an
    
    examination of the cases can reveal some common threads that are relevant to our inquiry.
    
    
    
    S.C. 177, 184, 
    187 S.E.2d 884
    , 887 (1972); John Morrell & Co. v. American Ry. Express Co., 
    45 S.D. 399
    , 404, 
    187 N.W. 724
    , 725 (1922); Gamble v. State, 
    206 Tenn. 376
    , 387, 
    333 S.W.2d 816
    ,
    821 (1960); State Highway Bd. v. Gates, 
    110 Vt. 67
    , 77, 
    1 A.2d 825
    , 829 (1938); Stuart’s Ex’rs v.
    Board of Sinking Fund Comm’rs, 
    123 Va. 224
    , 229, 
    96 S.E. 239
    , 241 (1918); Diversified Inv.
    Partnership v. Dep’t of Soc. & Health Servs., 
    113 Wash. 2d 19
    , 25, 
    775 P.2d 947
    , 950 (1989); Cowan
    v. County Comm’n, 
    161 W. Va. 106
    , 110-11, 
    240 S.E.2d 675
    , 678 (1977); State v. Wakeen, 
    263 Wis. 401
    , 409, 
    57 N.W.2d 364
    , 368 (1953); Grimshaw, 49 Wyo. at 205, 53 P.2d at 17.
           61
                Rossi at 1191-1201.
           62
                Id. at 1196-97.
           63
                Id. at 1198-1200.
           64
                Id. at 1196-97.
                                                                      RHINE CONCURRENCE – 17
    
           This Court and courts in other states have widely upheld the delegation of authority to an
    
    administrative agency so long as the Legislature enacts proper standards to guide administrative
    
    discretion.65 When the subject matter to be regulated is complex, courts have allowed the standards
    
    to be more general in order to afford sufficient flexibility to the agency and to take advantage of
    
    expertise.66 Environmental regulation in particular has been characterized as a complex field in
    
    which a large amount of administrative discretion is necessary. The Supreme Court of Florida
    
    explained:
    
           Clearly, environmental protection requires highly technical, scientific, regulatory
           schemes to ensure proper compliance with legislative policy. It would be difficult,
           if not impossible, to require the Legislature to enact such rules, regulations and
           procedures capable of addressing the myriad of problems and situations that may
           arise implicating pollution control and prevention.67
    
    Nevertheless, courts have also recognized that standards should not be so vague as to confer
    
    
    
           65
              See Williams, 146 Tex. Crim. at 438, 176 S.W.2d at 183; Walden v. Hart, 
    243 Ark. 650
    ,
    652, 
    420 S.W.2d 868
    , 870 (1967); Barco Beverage Corp., 595 N.E.2d at 253-54; State ex rel.
    Tomasic v. Wyandotte County, 
    264 Kan. 293
    , 303-04, 
    955 P.2d 1136
    , 1148 (1998); Board of
    Trustees, 132 S.W.3d at 782; Lewis v. State Dept. of Human Serv., 
    433 A.2d 743
    , 747-48 (Me.
    1981); Turmon, 417 Mich. at 644-45, 340 N.W.2d at 623-24; State v. Mathis, 
    315 Mont. 378
    , 382,
    
    68 P.3d 756
    , 760 (2003); Cobb v. State Canvassing Board, 
    140 N.M. 77
    , 89, 
    140 P.3d 498
    , 510
    (2006); Moschell, 2004 SD at P15-16, 677 N.W.2d at 558-59; Found. for Indep. Living, 214 W. Va
    at 830, 591 S.E.2d at 756.
           66
              Arizona Mines Supply Co., 107 Ariz. at 205, 484 P.2d at 625 (pollution standards); Curry,
    279 Ark. at 159-60, 649 S.W.2d at 837 (controlled substances act); People v. Holmes, 
    959 P.2d 406
    ,
    412 (Colo. 1998)(contraband at a detention facility); Avatar Dev. Corp., 723 So. 2d at 207 (pollution
    control and prevention); Kellogg, 98 Idaho at 543-44, 568 P.2d at 516-17 (controlled substances act);
    Tomasic, 264 Kan. at 305, 955 P.2d at 1148-49 (consolidation of city and county operations);
    Ashland Transfer Co. v. State Tax Comm’n., 
    247 Ky. 144
    , 160-61, 
    56 S.W.2d 691
    , 698
    (1932)(commercial traffic on public highways); All Pro Paint & Body Shop, 639 So. 2d at 716-17
    (hazardous waste); Lewis, 433 A.2d at 748-49 (subsurface sewage disposal systems); Peloquin, 427
    A.2d at 1330-31 (controlled substances act).
           67
                Avatar Dev. Corp., 723 So. 2d at 207.
                                                                        RHINE CONCURRENCE – 18
    
    discretion that is absolute,68 unbridled,69 open-ended,70 arbitrary,71 or uncontrolled.72
    
           In addition, a number of courts have held that procedural safeguards must accompany broad
    
    standards to ensure that the agency action conforms to those standards.73 The required procedural
    
    safeguards typically include a pre-adoption public hearing and post-adoption judicial review.74
    
    Procedural safeguards ensure that the administrative agency really is doing the will of the
    
    Legislature: The pre-adoption public hearing ensures that the administrative agency takes the
    
    legislative standards into account, engaging in factual determinations that relate to the legislative
    
    standards rather than simply dictating policy, and judicial review ensures that the administrative
    
    
    
    
           68
                Walden, 243 Ark. at 654, 420 S.E.2d at 870; Moschell, 2004 SD at P.17, 677 N.W.2d at
    559.
           69
                Lowrie, 761 P.2d at 782; Cobb, 140 N.M. at 89, 140 P.3d at 510.
           70
                Lowrie, 761 P.2d at 782; B.H., 645 So. 2d at 994.
           71
             B.H., 645 So. 2d at 994; Mathis, 315 Mont. at 383, 68 P.3d at 760; Cobb, 140 N.M. at 89,
    140 P.3d at 510.
           72
              Mathis, 315 Mont. at 383, 68 P.3d at 760; see also Walden, 243 Ark. at 654, 420 S.E.2d
    at 870 (“unregulated” or “undefined”); Moschell, 2004 SD at P.17, 677 N.W.2d at 559 (same).
           73
               Cottrell v. City and County of Denver, 
    636 P.2d 703
    , 709 (Colo. 1981); All Pro Paint &
    Body Shop, 639 So. 2d at 713; Turmon, 417 Mich. at 648, 650, 340 N.W.2d at 625, 626; Opinion
    of Justices, 
    368 Mass. 831
    , 837, 
    333 N.E.2d 388
    , 393 (1975); Boreali, 71 N.Y.2d at 10, 517 N.E.2d
    at 1354; Peloquin, 427 A.2d at 1331; Wyoming Coalition v. Wyoming Game & Fish Comm’n., 
    875 P.2d 729
    , 733-34 (Wyo. 1994). Colorado allows for the possibility that a delegation may be proper
    even if standards and safeguards can be found only at the administrative level, Cottrell, 636 P.2d at
    709-10, but such a thing has not been suggested in any other jurisdiction (as far as I am aware), and
    New Mexico has specifically stated that an agency’s “self-imposed restraints can in no way serve
    to supply what has been omitted.” Cobb, 140 N.M. at 89, 140 P.3d at 510.
           74
                See above footnote.
                                                                        RHINE CONCURRENCE – 19
    
    agency’s rules and other actions actually conform to the legislative standards.75 Of course, for
    
    safeguards to have meaning, the legislative standards must be sufficiently specific to allow the
    
    agency and the courts to determine whether the agency is carrying out the intent of the legislature.76
    
           Though the line of demarcation between a proper and an improper delegation may not be
    
    easy to discern,77 the branches should be kept as separate as possible while taking into account the
    
    practical necessities of life.78 The fact that the Legislature could have been more specific does not
    
    necessarily invalidate a delegation,79 however, and legislative standards can be implied from an
    
    express statutory purpose,80 consistent with the principle that we will employ a narrowing
    
    construction to save the constitutionality of a statute if it is amenable to such a construction.81 The
    
            75
             See Cottrell, 636 P.2d at 709 (safeguards ensure “that administrative action will be rational
    and consistent in the first instance and that subsequent judicial review of that action is available and
    will be effective”); All Pro Paint & Body Shop, 639 So. 2d at 713 (procedural safeguards
    requirement “ensures the agency exercises that discretion in accordance with the policy and
    standards prescribed in the enabling statute”).
           76
               See Avatar Dev. Corp., 723 So. 2d at 202 (quoting Askew, 372 So. 2d at 918-19)
    (delegation invalid when “neither the agency nor the courts can determine whether the agency is
    carrying out the intent of the legislature”); All Pro Paint & Body Shop, 639 So. 2d at 712 (adequacy
    of standards “prevents judicial review from becoming merely an exercise at large by providing the
    courts with some measure against which to judge the official action that has been challenged”).
            77
              Bloemer, 281 Ky. at 840, 137 S.W.2d at 391; Mathis, 315 Mont. at 385, 68 P.3d at 761;
    Boreali, 71 N.Y.2d at 11, 517 N.E.2d at 1355.
            78
              Mississippi Pub. Serv. Comm’n v. Mississippi Power & Light Co., 
    593 So. 2d 997
    , 999
    (Miss. 1991); see also David, 45 N.J. at 324, 212 A.2d at 357 (warning against use of separation-of-
    powers doctrine with “pedantic rigor” that would make “the modern administrative agency . . . an
    impossibility in our law”).
           79
                 Kellogg, 98 Idaho at 544, 568 P.2d at 517.
           80
             Tomasic, 264 Kan. at 305, 955 P.2d at 1148; All Pro Paint & Body Shop, 639 So. 2d at
    716; Opinion of Justices, 368 Mass. at 834-35, 333 N.E.2d at 392.
           81
                 Long v. State, 
    931 S.W.2d 285
    , 295 (Tex. Crim. App. 1996).
                                                                       RHINE CONCURRENCE – 20
    
    Supreme Court of Kentucky has explained that one important purpose of the nondelegation branch
    
    of the separation-of-powers doctrine is to ensure that the Legislature takes the political heat for its
    
    enactments rather than shifting blame to an unelected bureaucrat.82
    
           Application of these principles may be found in a number of cases, and I discuss a few of the
    
    significant decisions here. I begin with cases that have found a delegation to be unconstitutional.
    
    In Askew v. Cross Key Waterways, the Supreme Court of Florida addressed the constitutionality of
    
    the Florida Environmental Land and Water Management Act.83 That statute empowered “the
    
    Division of State Planning to recommend areas of critical state concern to the Governor and cabinet
    
    acting as the Administration Commission” and empower this Administration Commission to act on
    
    those recommendations.84 An area could be designated as “of critical state concern” if it had
    
    significant impact upon “environmental, historical, natural, or archaeological resources of regional
    
    or statewide importance,” was significantly affected by or had a significant effect upon “an existing
    
    or proposed major public facility or other area of major public investment,” or was a “proposed area
    
    of major development potential,” including “a proposed site of a new community.”85 This scheme
    
    violated separation of powers because it conferred upon the Administrative Commission “the
    
    fundamental legislative task of determining which geographic areas and resources are in the greatest
    
    need of protection.”86 The statute treated “alike, as fungible goods, disparate categories of
    
    
           82
                Board of Trustees, 132 S.W.3d at 784.
           83
                372 So. 2d at 914.
           84
                Id. at 914-15.
           85
                Id.
           86
                Id. at 919.
                                                                        RHINE CONCURRENCE – 21
    
    environmental, historical, natural, and archaeological resources of regional or statewide importance
    
    and all of Florida’s manifold resources within those vast categories,” so that a reviewing court could
    
    not possibly “ascertain whether the priorities recognized by the Administration Commission comport
    
    with the intent of the legislature.”87
    
            In Boreali v. Axelrod, the New York Court of Appeals addressed the constitutionality of
    
    regulations on the indoor smoking of tobacco.88             The Public Health Council promulgated
    
    “regulations prohibiting smoking in a wide variety of indoor areas that are open to the public,
    
    including schools, hospitals, auditoriums, food markets, stores, banks, taxicabs and limousines.”89
    
    The rules required restaurants with seating capacities of greater than fifty people to provide
    
    nonsmoking areas, and employers were required to provide smoke-free work areas for nonsmoking
    
    employees.90 Some areas were exempt from the regulations, including restaurants with seating
    
    capacities of less than fifty, conventions, trade shows, and bars.91 A waiver of the regulations could
    
    be obtained from the Commissioner “upon a showing of financial hardship.”92 The claimed authority
    
    for these regulations was a statute that authorized the Public Health Council to “deal with any matter
    
    affecting the . . . public health.”93 The New York court declined to say that the broad enabling statute
    
    
    
            87
                 Id.
            88
                 71 N.Y.2d at 7, 517 N.E.2d at 1352.
            89
                 Id.
            90
                 Id.
            91
                 Id.
            92
                 Id.
            93
                 Id. at 9, 517 N.E.2d at 1353 (ellipsis in original).
                                                                      RHINE CONCURRENCE – 22
    
    was itself an unconstitutional delegation of legislative authority, but the court concluded that the
    
    agency “stretched that statute beyond its constitutionally valid reach when it used the statute as a
    
    basis for drafting a code embodying its own assessment of what public policy ought to be.”94
    
           The court gave four reasons for its conclusion: First, the court observed that, while “acting
    
    to further the laudable goal of protecting nonsmokers from the harmful effects of ‘passive smoking,’
    
    the agency in reality “constructed a regulatory scheme laden with exceptions based solely upon
    
    economic and social concerns.”95 Second, the agency wrote on a “clean slate,” creating “a
    
    comprehensive set of rules without the benefit of legislative guidance.”96 Third, the agency “acted
    
    in an area in which the Legislature had repeatedly tried – and failed – to reach agreement in the face
    
    of substantial public debate and vigorous lobbying by a variety of interested factions.”97 Finally, no
    
    special expertise or technical competence in the field of health was involved in the development of
    
    the anti-smoking regulations.98
    
           In Ex parte Leslie, we addressed the constitutionality of a statute authorizing administrative
    
    action with respect to livestock.99 The defendant was prosecuted for failing to dip cattle that were
    
    in a quarantine zone.100 The relevant statute made it a criminal offense to fail to dip livestock “at
    
    
    
           94
                 Id.
           95
                 Id. at 11-12, 517 N.E.2d at 1355.
           96
                 Id. at 13, 517 N.E.2d at 1356.
           97
                 Id..
           98
                 Id. at 14, 517 N.E.2d at 1356.
           99
                 87 Tex. Crim. at 477-78, 223 S.W. at 227.
           100
                 Id.
                                                                        RHINE CONCURRENCE – 23
    
    such time and in such manner as directed in writing by the live stock sanitary commission.”101 On
    
    March 27th, the commission ordered the defendant to dip his cattle on March 29th between 7:00 a.m.
    
    and 1:00 p.m.102 Though the Legislature’s clear purpose was to protect livestock from diseases,103
    
    the statute in question imposed an affirmative duty on livestock owners to comply with an
    
    inspector’s order without providing any guidance concerning the “dates or intervals when cattle shall
    
    be dipped” or the amount of notice that an owner should have to bring his cattle into compliance.104
    
           Another example of a case in which the legislative policy was perhaps clear but the statutory
    
    standards were not is the Florida decision in B.H. v. State. In that case, a statute created the crime
    
    of “escape from any secure detention facility or any residential commitment facility of restrictiveness
    
    level VI or above.”105 The Department of Health and Rehabilitative Services was given the authority
    
    to define restrictiveness levels “in terms of broad categories based on ‘the risk and needs of the
    
    individual child,’ of which there can be no more than eight,” with no other meaningful limitations.106
    
    The Department created four risk levels, numbered 2, 4, 6, and 8.107 The Florida Supreme Court
    
    observed that the Department could have just as easily created risk levels numbered 1 through 4—in
    
    which case no facility would fall within the definition of the offense—or risk levels numbered 10,
    
    
    
           101
                 Id. at 479, 223 S.W. at 228.
           102
                 Id.
           103
                 See Smith, 74 Tex. Crim. at 234, 168 S.W. at 523.
           104
                 Leslie, 87 Tex. Crim. at 479-82, 223 S.W. at 228-29.
           105
                 645 So. 2d at 994.
           106
                 Id.
           107
                 Id.
                                                                        RHINE CONCURRENCE – 24
    
    20, 30, and 40—in which case all facilities would fall within the definition of the offense.108 Thus,
    
    the enabling statute failed to articulate reasonably definite standards, instead conferring unlimited
    
    and arbitrary discretion.109
    
            I turn now to some cases that have upheld a delegation as constitutional. I refer again to our
    
    decisions in Smith and Williams, respectively involving transportation of cattle across a quarantine
    
    line and the growing of cotton in a quarantine zone. The legislative policy of preventing the spread
    
    of disease to livestock or cotton was clear, the need for expertise and the ability to address conditions
    
    on the ground was evident, and the authority to designate zones based on the threat of disease
    
    infestation was reasonably specific.110
    
            A number of jurisdictions have upheld the delegation of authority to an administrator to
    
    designate a particular drug as a controlled substance, and prosecute possession of that substance as
    
    a crime.111 In most of these cases the statute contained a list of the following eight standards:
    
            (1) The actual or relative potential for abuse;
    
            (2) The scientific evidence of its pharmacological effect, if known;
    
            (3) The state of current scientific knowledge regarding the substance;
    
            (4) The history and current pattern of abuse;
    
    
    
            108
                  Id.
            109
                  Id.
            110
              See Smith, 74 Tex. Crim. at 233-34, 168 S.W. at 522-23; Williams, 146 Tex. Crim. at
    433-39, 176 S.W.2d at 179-83.
            111
               See McCurley, 390 So. 2d at 26-29; Curry, 279 Ark. at 155-60, 649 S.W.2d at 835-37;
    Kellogg, 98 Idaho at 542-44, 568 P.2d at 515-17; Turmon, 417 Mich. at 643-53, 340 N.W.2d at 623-
    27; Thompson, 627 S.W.2d at 300-03; Peloquin, 427 A.2d at 1328-31.
                                                                       RHINE CONCURRENCE – 25
    
           (5) The scope, duration and significance of abuse;
    
           (6) The risk to the public health;
    
           (7) The potential of the substance to produce psychic or physiological dependence
           liability; and
    
           (8) Whether the substance is an immediate precursor of a substance already
           controlled under this chapter.112
    
    The Michigan court referred to mandatory rulemaking procedures as further insuring against possible
    
    abuse of delegated power113 while the Rhode Island court pointed to the availability of judicial
    
    review.114
    
           The Supreme Court of Florida addressed the constitutionality of a pollution control statute
    
    that made it a criminal offense for a person “[t]o fail to obtain any permit required by this chapter
    
    or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or
    
    certification adopted or issued by the [Department of Environmental Protection] pursuant to its
    
    lawful authority.”115 In a purpose section, the legislation articulated that “pollution of the air and
    
    waters of this state constitutes a menace to public health and welfare,” noted various harmful effects,
    
    and declared a public policy to protect and improve the quality of air and water and to protect against
    
    
    
    
           112
              See McCurley, 390 So. 2d at 26; Curry, 279 Ark. at 158-59, 649 S.W.2d at 836; Turmon,
    417 Mich. at 646, 340 N.W.2d at 624; Thompson, 627 S.W.2d at 301 n.5; Peloquin, 427 A.2d at
    1331 n.7.
           113
                 Turmon, 417 Mich. at 648, 340 N.W.2d at 625.
           114
                 Peloquin, 427 A.2d at 1331.
           115
               Avatar Dev. Corp., 723 So. 2d at 201 (full name of agency provided in brackets in
    place of “department”).
                                                                       RHINE CONCURRENCE – 26
    
    the harmful effects of pollution.116 The statute also contained criteria requiring the department to
    
    consider a number of factors, including the effects of an activity on people, wildlife, navigation,
    
    erosion, fishing, recreation, and historical and archaeological resources, whether the activity was
    
    temporary or permanent, and the relative value of the functions being performed by areas affected
    
    by the activity.117 Though the prosecution at issue involved the violation of a permit condition, the
    
    court more broadly indicated that the Legislature lacked ability and expertise to enact “rules,
    
    regulations, and procedures” capable of addressing the “the myriad problems and situations”
    
    implicating pollution control, and that the provision of “criminal sanctions for the willful violation
    
    of administrative rules and regulations is of little consequence where it is the Legislature, and not
    
    the administrative body, that has declared such acts unlawful based upon express legislative
    
    policy.”118
    
            The final case I address is in contrast to the New York decision regarding the regulation of
    
    smoking. In West Virginia, the Legislature articulated in a purpose provision that it wished to have
    
    “a citizenry free from the use of tobacco.”119 In light of this articulated purpose, a sufficient basis
    
    for adopting anti-smoking regulations carrying criminal penalties existed under a statute permitting
    
    an agency to “adopt and promulgate and from time to time amend rules consistent with state public
    
    health laws and the rules of the West Virginia state department of health and human resources, that
    
    are necessary and proper for the protection of the general health of the service area and the
    
    
            116
                  Id. at 206.
            117
                  Id. at 206 n.8
            118
                  Id. at 207.
            119
                  Found. for Indep. Living, 214 W. Va. at 825-26, 830, 591 S.E.2d at 751-52, 756.
                                                                       RHINE CONCURRENCE – 27
    
    prevention of the introduction, propagation and spread of disease.”120
    
           From this discussion, I conclude that a delegation of authority to an administrative agency
    
    is constitutionally permissible under the separation-of-powers provision of the Texas Constitution
    
    if the following four conditions are met: (1) the delegation can, at least by implication, be
    
    characterized as the delegation of authority to make a factual determination relevant to the purpose
    
    of the statute, rather than simply a policy decision, (2) the statute contains standards, expressly
    
    provided or implied from an express statutory purpose, that are sufficiently specific to give guidance
    
    to the agency and to the courts as to what types of rules or other actions are and are not permissible,
    
    (3) pre-adoption procedural safeguards exist to ensure that the agency has the opportunity to consider
    
    whether the rule or other action conforms to the legislative standards, and (4) post-adoption judicial
    
    review is available to ensure that the agency rule or other action does in fact comply with the
    
    legislative standards. An agency’s action under this four-pronged approach is essentially an implied
    
    fact determination. As is usual with fact determinations, deference should be accorded on judicial
    
    review to the agency’s action.121 I now turn to the application of those conditions to the case at bar.
    
                               4. Does the outdoor burning delegation comply
                               with the Texas Separation-of-powers provision?
    
           The Legislature has provided that a criminal offense occurs if a person “intentionally or
    
    knowingly with respect to the person’s conduct, violates . . . a rule adopted under Chapter 382,
    
    Health and Safety Code.”122 Appellee was prosecuted for a rule adopted under §382.018, authorizing
    
    
           120
                 Id.
           121
                See Guzman v. State, Guzman v. State, 
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997); Manzi
    v. State, 
    88 S.W.3d 240
    , 242-44 (Tex. Crim. App. 2002).
           122
             T    EX . WATER   CODE, §7.177(a)(5).
                                                                       RHINE CONCURRENCE – 28
    
    administrative rules that “control or prohibit the outdoor burning of waste and combustible
    
    material.”123 The statute requires TCEQ to permit outdoor burning of waste that “consists of trees,
    
    brush, grass, leaves, branch trimmings, or other plant growth” when it is burned under certain
    
    conditions.124 Section 382.018 does not specifically mention other types of material, but some
    
    provisions within Chapter 382 are instructive.
    
           First, the Legislature expressly articulated the purpose of Chapter 382:
    
           The policy of this state and the purpose of this chapter are to safeguard the state’s air
           resources from pollution by controlling or abating air pollution and emissions of air
           contaminants, consistent with the protection of public health, general welfare, and
           physical property, including the esthetic enjoyment of air resources by the public and
           the maintenance of adequate visibility.125
    
    In its rulemaking section, Chapter 382 refers to adopting a rule “consistent with the policy and
    
    purposes of this chapter.”126 Second, the Legislature provided that TCEQ shall have the power and
    
    duty to “control the quality of the state’s air.”127 Third, the Legislature provided the following
    
    explicit standards for determining whether to adopt a rule under Chapter 382:
    
           The terms and provisions of a rule adopted by the commission may differentiate
           among particular conditions, particular sources, and particular areas of the state. In
           adopting a rule, the commission shall recognize that the quantity or characteristic of
           air contaminants or the duration of their presence in the atmosphere may cause a need
           for air control in one area of the state but not in other areas. In this connection, the
           commission shall consider:
    
    
    
           123
            T    EX . HEALTH   & SAFETY CODE, §382.018(a).
           124
                 Id., §382.018(b)-(d).
           125
                 Id., §382.002(a).
           126
                 Id., §382.017(a).
           127
                 Id., §382.011(a)(3).
                                                                       RHINE CONCURRENCE – 29
    
                  (1) the factors found by it to be proper and just, including existing physical
           conditions, topography, population, and prevailing wind direction and velocity; and
    
                  (2) the fact that a rule and the degrees of conformance with the rule that may
           be proper for an essentially residential area of the state may not be proper for a highly
           developed industrial area or a relatively unpopulated area.128
    
           The delegation of authority here can, at least by implication, be characterized as the
    
    delegation of authority to make a factual determination relevant to the purpose of the statute, rather
    
    than simply a policy decision. The Legislature has tasked TCEQ with determining how to safeguard
    
    the quality of our air. What practices threaten air quality is a factual determination. In determining
    
    that a practice should be prohibited, TCEQ impliedly determines that the practice threatens the
    
    quality of our air. In determining that a practice should be regulated, TCEQ impliedly determines
    
    that the regulation of that practice is needed to safeguard air quality.
    
           The statutory scheme also provides standards. TCEQ must take into account the quantity,
    
    characteristic, and duration of air contaminants in determining whether there is a need for air control
    
    in one area of the state but not other areas. If appropriate, the agency must consider physical
    
    conditions, topography, population, and prevailing wind direction and velocity, and the agency must
    
    consider the difference between residential areas, highly developed industrial areas, and relatively
    
    unpopulated areas. In addition, the purpose statement tasks TCEQ with protecting public health,
    
    general welfare, physical property, the esthetic enjoyment of air resources by the public, and the
    
    maintenance of adequate visibility.
    
           Therefore, a rule under the statutory scheme must promote air quality and be tailored to the
    
    facts of a particular geography, or if it is a statewide rule, then the activity that is prohibited or
    
    
    
           128
                 Id., §382.017(e).
                                                                      RHINE CONCURRENCE – 30
    
    regulated must be the kind that damages the quality of the air everywhere in the State of Texas, from
    
    the largest city to the remotest rural location.
    
            The statutory scheme also contains pre-adoption safeguards that give the agency the
    
    opportunity to consider information provided through public comment, either through Chapter 382
    
    or through the Administrative Procedure Act (APA).129 If the Chapter 382 procedure is followed,
    
    a public hearing must be held before a rule is adopted; notice of the date, time, place, and purpose
    
    of the hearing for a statewide rule must be published twenty days before the hearing in at least three
    
    newspapers whose combined circulation, in TCEQ’s judgment, will give reasonable circulation
    
    throughout the State; and any person may appear at the hearing and be heard.130 If the APA
    
    procedure is followed, the agency must give thirty days notice of the hearing by publication in the
    
    Texas Register,131 the notice must satisfy certain requirements which include matters relating to the
    
    content of the proposed rule,132 and the agency must afford interested persons the opportunity to
    
    comment on the proposed rule.133
    
            Judicial review is also available. It is possible that a TCEQ rule relating to outdoor burning
    
    could be challenged in a declaratory judgment action under the APA.134 But regardless of whether
    
    that is the case, when a violation of the rule has resulted in a criminal conviction, the propriety of
    
    
    
            129
                  See id., §382.017(d).
            130
                  Id., §382.017(a)-(c).
            131
             T     EX . GOVT . CODE   §2001.023.
            132
                  Id., §2001.024.
            133
                  Id., §2001.029.
            134
                  Id., §2001.038.
                                                                        RHINE CONCURRENCE – 31
    
    the rule can be reviewed on appeal.         Though deferential, such review can nevertheless be
    
    meaningful. For example, appellee argues that TCEQ could enact a rule banning cigarette smoking.
    
    But a statewide anti-smoking rule would clearly violate the legislative standards because such
    
    conduct does not, even under the most deferential review, pose a threat to the quality of the air in all
    
    portions of the state.135 I conclude that the Legislature did not unconstitutionally delegate its power
    
    in enacting the outdoor burning statute.
    
           The remaining question is whether TCEQ acted within the Legislature’s grant of authority
    
    in passing a rule that prohibited burning of the items in question. The rule in question136 seems to
    
    be a reasonable one designed to protect the quality of the air in any portion of the state.
    
    Consequently, I would deny appellee’s challenge and affirm the judgment of the court of appeals.
    
           I concur in the court’s judgment.
    
    Filed: September 23, 2009
    Publish
    
    
    
    
           135
              TCEQ has specifically authorized burning used “solely for recreational or ceremonial,
    purposes or in the noncommercial preparation of food, or used exclusively for the purpose of
    supplying warmth during cold weather.” TEX . ADMIN . CODE §111.207.
           136
                 See id., §111.219(7).