SRC-AMY S.B. 1265 78(R)    BILL ANALYSIS


Senate Research CenterS.B. 1265
By: Armbrister
Natural Resources
8/6/2003
Enrolled

DIGEST 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.  Currently, no such process is
required under any state environmental crime provisions.  S.B. 1265
requires a peace officer to notify TCEQ in writing of the alleged
violation.  TCEQ is then required to evaluate the report, determine if an
environmental violation exists, and determine an adequate remedy.  This
bill only applies to cases in which the potential defendant holds a permit
by TCEQ or is employed by a person holding such a permit. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Commission on
Environmental Quality in SECTION 3 of this bill. 

SECTION BY SECTION 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.  AMENDMENT.  Amends Subchapter E, Chapter 7, Water Code, by
adding Section 7.203, as follows: 

Sec. 7.203. CRIMINAL ENFORCEMENT REVIEW.  (a) Provides that this section
is applicable to criminal prosecution of alleged environmental violations
of this code, of the Health and Safety Code, or of any other statute,
rule, order, permit or other decision of the Texas Commission on
Environmental Quality (TCEQ) that is within TCEQ's jurisdiction committed
by a defendant holding a permit issued by TCEQ or a defendant employed by
a person holding such a permit and that is related to the activity for
which the permit was issued.  Provides that it is an exception to the
application of this section that the alleged environmental violation
clearly involves imminent danger of death or bodily injury under an
endangerment offense specified in Section 7.252.  Provides that nothing in
this section limits the power of a peace officer to arrest a person for an
alleged offense. 

(b) Requires that before a peace officer, as that term is defined in
Section 7.193 or Chapter 2, Code of Criminal Procedure, refers any alleged
criminal environmental violation by a person holding a permit issued by
TCEQ or an employee of that person of this code, of the Health and Safety
Code, or of any other statute, rule, order, permit or other decision of
TCEQ that is within TCEQ's jurisdiction to a prosecuting attorney for
criminal prosecution, the peace officer notify TCEQ in writing of the
alleged criminal environmental violation and include with the notification
a report describing the facts and circumstances of the alleged criminal
environmental violation.  Provides that this section does not prohibit a
peace officer from issuing a citation or making an arrest. 

(c) Requires TCEQ, as soon as practicable and in no event later than the
45th day after receiving a notice and report under Subsection (b), to
evaluate the report and determine whether an alleged environmental
violation exists and whether administrative or civil remedies would
adequately and appropriately address the  alleged environmental
violation.  Requires TCEQ, in making its evaluation and determination, to
consider factors prescribed by Section 7.053.  Sets forth the actions to
be taken if TCEQ does not make a determination within the 45-day period
required by this subsection. 

(d) Requires TCEQ, if TCEQ determines that an alleged environmental
violation exists and that administrative or civil remedies are inadequate
or inappropriate to address the violation, to so notify the peace officer
in writing of the reasons why administrative or civil remedies are
inadequate or inappropriate and recommending criminal prosecution, and
authorizes the prosecuting attorney to proceed with the criminal
prosecution of the alleged violation.  Requires TCEQ, in all other cases,
to issue written notification to the peace officer that the alleged
environmental violation is to be resolved through administrative or civil
means by the appropriate authorities and the reasons why administrative or
civil remedies are adequate or appropriate.  Prohibits a prosecuting
attorney from prosecuting an alleged violation if TCEQ determines that
administrative or civil remedies are adequate and appropriate.  

(e) Requires any fine, penalty, or settlement recovered through a
prosecution subject to this section and brought in the name and by
authority of the State of Texas, whether recovered through any form of
pretrial resolution, plea agreement, or sentencing after trial, to be
apportioned 70 percent to the state to cover the costs of instituting the
procedures and requirements of Subsections (a)-(d) and 30 percent to any
local government significantly involved in prosecuting the case. Provides
that in a case where the procedures described in this section do not
apply, the provisions of Section 7.190 apply. 

SECTION 3.  TRANSITION.  Requires TCEQ, not later than six 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: upon passage or September 1, 2003.