C.S.H.B. 3164 78(R)    BILL ANALYSIS


C.S.H.B. 3164
By: Capelo
Environmental Regulation
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Until 1997, the predecessor agency to the Texas Commission on
Environmental Quality (TCEQ) and the Office of the Attorney General (OAG)
were required to be involved in a decision to criminally prosecute
violations of the Texas Clean Air Act, Chapter 382, Health and Safety
Code. Presently, no such process is required under any state environmental
crime provisions. A local prosecutor may file criminal charges under
Chapter 7, Texas Water Code, asserting violations of TCEQ rules without
the involvement, advice or consent of the TCEQ or the OAG. There is a
perception that an increasing number of prosecutions are inconsistent with
TCEQ policies, guidance and interpretation. Likewise, there is ample
evidence that matters more appropriately and historically addressed
through administrative penalty or civil remedies are being prosecuted
criminally, oftentimes with felony charges.  

HB3164 will reestablish a requirement that the TCEQ and the OAG confer and
recommend criminal prosecution of Texas environmental laws and regulations
before the initiation of prosecution. The legislation would only apply to
cases in which the potential defendant is permitted by the TCEQ. The bill
is designed to establish consistent, fair and logical procedural
requirements prerequisite to filing charges fro environmental crimes on
behalf of the State of Texas. The enactment of this law would not change
any applicable TCEQ rule or standard. It applies only to those regulated
entities that have sought to comply with the authorization and permitting
requirements of the TCEQ. 


RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly
granted to the Texas Commission on Environmental Quality in SECTION 3 of
this bill. 

ANALYSIS

SECTION 1. PURPOSE Provides that the purpose of this Act is to ensure
statewide consistency in the interpretation and enforcement of
environmental laws.  

SECTION 2. CRIMINAL ENFORCEMENT REVIEW

(a)The substitute amends the Water Code by adding Section 7.203 which
applies to a criminal prosecution of alleged environmental violations of
this code, the Health and Safety Code, or of any other statute, rule,
order, permit, or other decision of the commission within its jurisdiction
committed by a defendant holding a permit issued by the commission or
defendant employed by a person holding such a permit.  This section does
not apply to an environmental violation that clearly involves imminent
danger or death or bodily injury under an endangerment offense specified
in Section 7.252. 

(b) A peace officer shall notify the commission in writing of the alleged
environmental violation. Only after this notification, may a peace officer
refer a violation of this code to a prosecuting attorney.  Included with
the notification is a report describing the facts and circumstances of the
alleged criminal environmental violation.   
 
(c)The commission shall evaluate the report within 60 days after receiving
it from the peace officer. They will determine whether administrative or
civil remedies would adequately and appropriately address the alleged
environmental violation. 

(d)The commission shall issue written notification to the peace officer
that the alleged environmental violations is to be resolved through
administrative or civil means by the appropriate authorities.  If the
commission determines an alleged environmental violation exists and that
administrative or civil remedies are inadequate or inappropriate and
recommending criminal prosecution. 

(e) Any fine, penalty, or settlement recovered through prosecution subject
to this section ad brought in the name of the State of Texas shall be
apportioned 80 percent to the state to cover the costs of instituting the
procedures and requirements of this section; and 20 percent to any local
government significantly involved in prosecuting the case. 

SECTION 3.  TRANSITION

The Texas Commission on Environmental Quality, by rule, shall establish
procedures to fulfill requirements of this act within 6 months after the
effective date of this Act, by rule, to establish procedures to fulfill
the requirements of Subsections (a) through (d), Section 7.203, Water
Code, as added by this Act, and to ensure an objective and unbiased
process.  

SECTION 4. EFFECTIVE DATE 

Effective date: upon passage or September 1, 2003.

EFFECTIVE DATE

Upon passage, or, if the act does not receive the necessary vote, the act
takes effect September 1, 2003 

COMPARISON OF ORIGINAL TO SUBSTITUTE

Committee Substitute House Bill 7 modifies the original by removing the
ability of the commission or the executive director from consulting with
the Attorney General concerning possible criminal prosecution of any
alleged violation under this code, the Health and Safety Code, or any
other statute or permit that is within the commission's jurisdiction.