This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
S.B. No. 1265
AN ACT
relating to prosecution of environmental crimes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. PURPOSE. The purpose of this Act is to ensure
statewide consistency in the interpretation and enforcement of
environmental laws.
SECTION 2. AMENDMENT. Subchapter E, Chapter 7, Water Code,
is amended by adding Section 7.203 to read as follows:
Sec. 7.203. CRIMINAL ENFORCEMENT REVIEW. (a) 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
commission that is within the commission's jurisdiction committed
by a defendant holding a permit issued by the commission or a
defendant employed by a person holding such a permit and that is
related to the activity for which the permit was issued. This
section does not apply to an alleged environmental violation that
clearly involves imminent danger of death or bodily injury under an
endangerment offense specified in Section 7.252. Nothing in this
section limits the power of a peace officer to arrest a person for
an alleged offense.
(b) Before a peace officer, as that term is defined in
Section 7.193 or Chapter 2, Code of Criminal Procedure, may refer
any alleged criminal environmental violation by a person holding a
permit issued by the commission 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 the commission that is
within the commission's jurisdiction to a prosecuting attorney for
criminal prosecution, the peace officer shall notify the commission
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.
This section does not prohibit a peace officer from issuing a
citation or making an arrest.
(c) As soon as practicable and in no event later than the
45th day after receiving a notice and report under Subsection (b),
the commission shall 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. In making its evaluation and
determination, the commission shall consider the factors
prescribed in Section 7.053. If the commission does not make a
determination within the 45-day period required by this subsection:
(1) the appropriate prosecuting attorney may bring an
action for criminal prosecution; and
(2) notwithstanding Subsection (e), the commission or
the state is not entitled to receive any part of an amount recovered
through a prosecution brought by that prosecuting attorney.
(d) If the commission determines that an alleged
environmental violation exists and that administrative or civil
remedies are inadequate or inappropriate to address the violation,
the commission shall notify the peace officer in writing of the
reasons why administrative or civil remedies are inadequate or
inappropriate and recommending criminal prosecution, and the
prosecuting attorney may proceed with the criminal prosecution of
the alleged violation. In all other cases, the commission shall
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. A
prosecuting attorney may not prosecute an alleged violation if the
commission determines that administrative or civil remedies are
adequate and appropriate.
(e) 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,
shall 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. In a case where the procedures described in
this section do not apply, the provisions of Section 7.190 apply.
SECTION 3. TRANSITION. Not later than six months after the
effective date of this Act, the Texas Commission on Environmental
Quality by rule shall 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. This Act takes effect
immediately if it receives a vote of two-thirds of all the members
elected to each house, as provided by Section 39, Article III, Texas
Constitution. If this Act does not receive the vote necessary for
immediate effect, this Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1265 passed the Senate on
April 25, 2003, by the following vote: Yeas 29, Nays 0; and that
the Senate concurred in House amendments on May 21, 2003, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1265 passed the House, with
amendments, on May 5, 2003, by the following vote: Yeas 84,
Nays 56, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor