State v. Michael Joseph Rhine ( 2008 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-07-319-CR
    THE STATE OF TEXAS                                                   STATE
    V.
    MICHAEL JOSEPH RHINE                                              APPELLEE
    ------------
    FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    I. Introduction
    In one issue, the State of Texas asserts that the trial court erred by
    granting the Defendant’s Motion to Quash Information and thereby agreeing
    with Michael Joseph Rhine’s argument that the Texas Legislature’s delegation
    of certain duties to the Texas Commission on Environmental Quality (“TCEQ”),
    1
    … See T EX. R. A PP. P. 47.4.
    as conferred by section 382.018 of the Texas Health and Safety Code, violates
    the “nondelegation doctrine.” We reverse and remand.
    II. Factual and Procedural History
    Rhine admitted to starting a fire on July 8, 2005. The material contained
    in the fire included crossties, fiberglass, tires, and PVC pipe. On December 12,
    2006, Rhine was charged with violating subsection (a)(5) of section 7.177 of
    the Texas Water Code, entitled “Violations of Clean Air Act.” T EX. W ATER C ODE
    A NN. § 7.177(a)(5) (Vernon 2000). Rhine filed a motion to quash the
    information, alleging this provision of the Texas Water Code is void in that the
    legislature had unconstitutionally delegated authority to an executive branch
    agency in violation of the nondelegation doctrine. After hearing the argument
    of counsel, the trial court granted the motion. This appeal resulted.
    III. Background
    The United States Environmental Protection Agency has set standards for
    cleanliness of ambient air pursuant to the Federal Clean Air Act.        See 42
    U.S.C.A. §§ 7401-7671 (West 1995 & Supp. 2003). One result of that act is
    that states, including Texas, prepared written plans to meet these standards,
    including legal standards limiting the emissions of contaminants. See 
    id. § 7410(a)(2).
    Our state agency addressing the safeguarding of “the [S]tate’s air
    resources from pollution by controlling or abating air pollution and emissions of
    2
    air contaminants” is the Texas Commission on Environmental Quality. T EX .
    H EALTH & S AFETY C ODE A NN. § 382.002 (Vernon 2001).
    The specific violation with which Rhine was charged reads as follows:
    “(a) A person commits an offense if the person intentionally or knowingly, with
    respect to the person’s conduct, violates: . . . (5) an order, permit, or
    exemption issued or a rule adopted under Chapter 382, Health and Safety
    Code.” T EX. W ATER C ODE A NN. § 7.177(a)(5). That chapter of the health and
    safety code reads in part that “the commission by rule may control and prohibit
    the outdoor burning of waste and combustible material and may include
    requirements concerning the particular method to be used to control or abate
    the emission of air contaminants resulting from that burning.” T EX. H EALTH &
    S AFETY C ODE A NN. § 382.018(a) (Vernon Supp. 2007).
    Pursuant to the foregoing health and safety code provision, the TCEQ
    enacted provisions of the Texas Administrative Code, which read: “[n]o person
    may cause, suffer, allow, or permit any outdoor burning within the State of
    Texas, except as provided by this subchapter or by orders or by permits of the
    commission,” and has specifically prohibited the burning of “[e]lectrical
    insulation, treated lumber, plastics, non-wood construction/demolition materials,
    heavy oils, asphaltic materials, potentially explosive materials, chemical wastes,
    and items containing natural or synthetic rubber. . . .” 30 T EX. A DMIN. C ODE §§
    3
    111.201, 111.219(7) (West 2007). Burning prohibited materials is punishable
    by a fine of not less than $1,000 or more than $50,000, and/or confinement
    not to exceed 180 days. See T EX. W ATER C ODE A NN. § 7.177(b) (referencing §
    7.187(1)(B)&(2)(C)).
    Thus, pursuant to the Federal Clean Air Act, the Texas Legislature has
    sought by statute to control air pollution by prohibiting the outdoor burning of
    waste and combustible material, and by setting penalties therefor. In doing so,
    however, the legislature delegated authority to the TCEQ to determine precisely
    which materials should be placed on the burn ban list. It is this delegation that
    Rhine    successfully   argued   to   the   trial court was   prohibited   by   the
    “nondelegation doctrine.”
    IV. Standard of Review
    Here, the record shows that the trial court had the following before it, in
    ruling on Defendant’s Motion to Quash: the indictment, the motion to quash,
    the State’s Reply to Defendant’s Motion to Quash Information, and the
    arguments of counsel. “When the resolution of a question of law does not turn
    on an evaluation of the credibility and demeanor of a witness, then the trial
    court is not in a better position to make the determination, so appellate courts
    should conduct a de novo review of the issue.” State v. Moff, 
    154 S.W.3d 4
    599, 601 (Tex. Crim. App. 2004). Therefore, we conduct a de novo review of
    the trial court’s ruling. See 
    id. IV. The
    Nondelegation Doctrine
    A. Background
    The genesis of our nondelegation doctrine in Texas is Article II, Section
    1 of the Texas Constitution of 1876, which reads:
    Sec. 1. 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.
    T EX. C ONST. art. II, § 1. Simply put,“[t]he power to pass laws rests with the
    Legislature, and that power cannot be delegated to some commission or other
    tribunal.” Brown v. Humble Oil & Refining Co., 
    126 Tex. 296
    , 306, 
    83 S.W.2d 935
    , 941 (1935); see also Williams v. Castleman, 
    112 Tex. 193
    , 198-99, 
    247 S.W. 263
    , 265 (1922) (“[T]he primary rule of interpreting and construing the
    Constitution is to ascertain the intention of the people in adopting it, and [to]
    give it effect to that intention.”); accord Lanford v. Fourteenth Court of
    Appeals, 
    847 S.W. 581
    , 585 (Tex. Crim. App. 1993).
    5
    Eleven years ago, the Texas Supreme Court discussed the origin and
    application of this doctrine at length in Texas Boll Weevil Eradication
    Foundation, Inc. v. Lewellen, 952 S.W .2d 454 (Tex. 1997).            The court
    observed that, in our complex society, it is not possible for the Legislature to
    shoulder the burden of drafting the infinite minutiae required to implement every
    single law necessary to adequately govern the State of Texas:
    Yet, like many truisms, these blanket pronouncements [of the
    nondelegation doctrine] should not be read too literally. Even in a
    simple society, a legislative body would be hard put to contend
    with every detail involved in carrying out its laws; in a complex
    society it is absolutely impossible to do so. Hence, legislative
    delegation of power to enforce and apply law is both necessary and
    proper. Such power must almost always be exercised with a
    certain amount of discretion, and at times the line between making
    laws and enforcing them may blur.
    
    Id. at 466
    (citation omitted). The Court observed from a historical perspective,
    Even in its heyday, the nondelegation doctrine was sparingly
    applied, having been used by the United States Supreme Court to
    strike down a federal statute only three times. Since the Court
    retreated from its opposition to New Deal initiatives, it has
    consistently upheld congressional delegations. Texas courts have
    also generally upheld legislative delegations to state or municipal
    agencies. We most recently [noted that] . . . the Texas Legislature
    may delegate its powers to agencies established to carry out
    legislative purposes, as long as it establishes “reasonable standards
    to guide the entity to which the powers are delegated. Requiring
    the legislature to include every detail and anticipate unforeseen
    circumstances would . . . defeat the purpose of delegating
    legislative authority.” The separation of powers clause [T EX.
    C ONST. art. II, § 1] requires that the standards of delegation be
    6
    “reasonably clear and hence acceptable as a standard of
    measurement.”
    
    Id. at 467
    (citations omitted). The Court goes on to cite twenty-one separate
    Texas cases, both civil and criminal, regarding such delegation. 
    Id. at 467
    -68.
    When the nondelegation doctrine has been upheld in Texas, it has often been
    premised on a vagueness with regard to the reasonable standards provided by
    the Legislature, or involved delegations to the judicial branch. See, e.g., Tex.
    Antiquities Comm. v. Dallas County Comty. Coll. Dist., 
    554 S.W.2d 924
    (Tex.
    1977); Bullock v. Calvert, 
    480 S.W.2d 367
    (Tex. 1972); Chem. Bank & Trust
    Co. v. Falkner, 
    369 S.W.2d 427
    (Tex. 1963); Davis v. City of Lubbock, 
    160 Tex. 38
    , 
    326 S.W.2d 699
    (1959); Daniel v. Tyrrell & Garth Inv. Co., 
    127 Tex. 213
    , 
    93 S.W.2d 372
    (1936); Ex parte Leslie, 
    87 Tex. Crim. 476
    , 
    223 S.W. 227
    (1920); see also Ex parte Maynard, 
    101 Tex. Crim. 256
    , 
    275 S.W. 1070
    (1924); Ex parte Humphrey, 
    92 Tex. Crim. 501
    , 
    244 S.W. 822
    (1922); Int’l
    Ass’n of Firefighters, Local Union No. 2390 v. City of Kingsville, 
    568 S.W.2d 391
    (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.); In re Johnson, 
    554 S.W.2d 775
    (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.).
    7
    B. Public or Private
    An initial determination that must be made in deciding whether the
    nondelegation doctrine applies is whether the legislative delegation was to a
    public or private entity, because
    private delegations clearly raise even more troubling constitutional
    issues than their public counterparts . . . [since] the basic concept
    of democratic rule under a republican form of government is
    compromised when public powers are abandoned to those who are
    neither elected by the people, appointed by a public official or
    entity, nor employed by the government.
    
    Lewellen, 952 S.W.2d at 469
    .
    The State presents nine reasons why the TCEQ should be considered a
    public entity.2 Those reasons are as follows:
    (1) the commission is subject to the Texas Sunset Act, and unless
    continued in existence as provided in Chapter 5 of the Texas Water
    Code, the commission is abolished and the chapter would expire
    (See T EX. W ATER C ODE A NN. § 5.014 (Vernon 2000));
    (2) the commission is composed of three members appointed by
    the governor, with the advice and consent of the senate (See T EX.
    W ATER C ODE A NN. § 5.052 (Vernon Supp. 2007));
    (3) each member of the commission is an officer of the state, as
    the term is used in the constitution, and each member shall take
    the official oath of office (See T EX. W ATER C ODE A NN . § 5.055
    (Vernon 2000));
    2
    … Rhine does not address, and hence does not dispute, this assertion.
    8
    (4) the commission must comply with Section 2001.004 of the
    Government Code, by indexing and making available for public
    inspection all rules and other written statements of policy or
    interpretations formulated, adopted, or used by the commission in
    the discharge of its functions, and all final orders, decisions, and
    opinions (See T EX. W ATER C ODE A NN. § 5.121 (Vernon 2000));
    (5) the financial transactions of the commission are subject to audit
    by the state auditor in accordance with Chapter 321 of the
    Government Code (See T EX. W ATER C ODE A NN. § 5.171 (Vernon
    2000));
    (6) the commission shall have a seal bearing the words Texas
    Natural Resources Conservation Commission (now TCEQ) encircling
    the oak and olive branches common to other official seals (See T EX.
    W ATER C ODE A NN. § 5.179 (Vernon 2000));
    (7) the TCEQ Operating Fund is established in the treasury (See
    T EX. W ATER C ODE A NN. § 5.237 (Vernon 2000));
    (8) judicial review of commission acts is allowed (See T EX. W ATER
    C ODE A NN. § 5.351 (Vernon 2000)); and
    (9) the Water Code does not waive TCEQ’s sovereign immunity
    from suit (See Tex. Natural Res. Conservation Comm’n v. IT-Davy,
    
    74 S.W.3d 849
    , 859 (Tex. 2002)).
    In Lewellen, our supreme court enumerated several factors that it
    considered in determining whether a foundation was a public or private entity
    for purposes of the nondelegation doctrine. Those private and public factors
    are as follows:
    Private-
    1. the funds collected are not required to be deposited in the state
    treasury;
    9
    2. the funds collected are not subject to state purchasing or audit
    requirements;
    3. the board members are not required to take oaths of office; and
    4. no provision is made for administrative appeal from board
    decisions.
    Public-
    1. the commission is exempt from taxation and board members are
    afforded state indemnification;
    2. the board members, officers, and employees have official
    immunity except for gross negligence, criminal conduct, or
    dishonesty;
    3. the commission must adopt and publish its rules in accordance
    with state requirements;
    4. the commission may be dissolved by the Commissioner when its
    purpose has been fulfilled;
    5. the commission is subject to the Texas Sunset Act; and
    6. the Legislature specifically denominates the commission as a
    “governmental unit.”
    See 
    Lewellen, 952 S.W.2d at 470
    .
    Considering the purpose and spirit behind the private/public determination
    in Lewellen and the reasons urged by the State regarding the TCEQ’s public
    nature, we hold that for purposes of the nondelegation doctrine, the TCEQ is
    a public entity, and hence the heightened scrutiny applied to a private
    delegation is inapplicable.
    10
    V. Application
    A. Classifications
    There are at least six classifications of delegations of legislative
    responsibility which do not run afoul of the nondelegation doctrine enunciated
    in Article II, section 1 of our state’s constitution. See Hous. Auth. of City of
    Dallas v. Higginbotham, 
    135 Tex. 158
    , 171-72, 
    143 S.W.2d 79
    , 87 (1940).
    Rhine asserts that the first of these six classifications is the only one that is
    ever potentially applicable in this case, and that the nature of the delegation to
    the TCEQ does not fit under this sole possibility. That classification exists
    when “the legislature because of the nature of the subject of legislation cannot
    practically and efficiently exercise such powers.” 
    Id. at 171,
    143 S.W.2d at
    87. Rhine argues two reasons why the legislature’s delegation in this case
    under that circumstance fails: First, there is no evidence to suggest that “the
    nature of the subject of legislation” could not have been “practically and
    efficiently exercise[d]” by the Texas Legislature. Second, section 382.018 of
    the Texas Health and Safety Code provides no definitions, and with few
    exceptions, places no limitations upon the TCEQ’s authority to promulgate rules
    that establish criminal violations.
    11
    B. Standards in General
    Our supreme court has told us that for a commission to promulgate rules,
    regulations, and orders, it is necessary to have a well-defined standard or rule
    in the applicable statute. See 
    Brown, 126 Tex. at 306
    , 83 S.W.2d at 941.
    Likewise, the agency or commission must not exceed its rule making authority,
    that is, in “exercising the powers and the broad authority granted by the
    Legislature, the only requirement is that rules and regulations must be
    consistent with the Constitution and Statutes of this State.” Gerst v. Oak Cliff
    Sav. & Loan Ass’n, 
    432 S.W.2d 702
    , 706 (Tex. 1968); see Dallas County Bail
    Bond Bd. v. Stein, 
    771 S.W.2d 577
    , 580 (Tex. App.—Dallas 1989, writ
    denied); State Bd. of Ins. v. Deffebach, 
    631 S.W.2d 794
    , 798 (Tex.
    App.—Austin 1982, writ ref’d n.r.e.).
    The legislature may delegate to a subordinate body a duty to administer
    and enforce its legislative functions, but must insure that the statute delegating
    such power contains definite guidelines and must prescribe sufficient standards
    to guide the discretion conferred. In re 
    Johnson, 554 S.W.2d at 780-81
    . The
    standards must be reasonably clear and            acceptable as standards of
    measurement. Edgewood Indep. Sch. Dist. v. Meno, 
    917 S.W.2d 717
    , 741
    (Tex. 1995).
    12
    C. The Legislative Acts
    So what exactly was the TCEQ empowered to do? This is set forth in
    subchapter B of section 382 of the Health and Safety Code:
    (a) The commission shall:
    (1) administer this chapter;
    (2) establish the level of quality to be maintained in the
    state’s air; and
    (3) control the quality of the state’s air.
    (b) The commission shall seek to accomplish the purposes of this
    chapter through the control of air contaminants by all practical and
    economically feasible methods.
    (c) The commission has the powers necessary or convenient to
    carry out its responsibilities.
    T EX. H EALTH & S AFETY C ODE A NN. § 382.011. And, as previously discussed, the
    legislature promulgated the consequences for violating the rules and regulations
    set by the commission. See T EX. W ATER C ODE A NN. § 7.177.
    D. The Legislative Standards
    The overall policy and purpose of the Texas Clean Air Act, which confers
    on the TCEQ certain rule making authority, is set forth as follows:
    (a) 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
    13
    property, including the esthetic enjoyment of air resources by the
    public and the maintenance of adequate visibility.
    (b) It is intended that this chapter be vigorously enforced and that
    violations of this chapter or any rule or order of the [TCEQ] result
    in expeditious initiation of enforcement actions as provided by this
    chapter.
    T EX. H EALTH & S AFETY C ODE A NN . § 382.002(a), (b) (Vernon 2001).          The
    legislature has provided definitions of “air contaminant” and “air pollution”; has
    provided for various reporting procedures, such as instructing the commission
    to prepare and develop a plan for control of the state’s air, designate air quality
    control regions, obtain information to develop an inventory of air contaminants;
    and has given the commission certain powers to enable it to accomplish these
    tasks and implement its overall mission. See generally 
    id. §§ 382.003-.016.
    Specifically at issue here is the legislature’s delegation to the TCEQ of authority
    to control outdoor burning of waste and combustible materials.          See 
    id. § 382.018.
       In response, and pursuant to this delegation, the TCEQ then
    enumerated a short list of items that it prohibited from burning, and which, in
    part, Rhine was alleged to have violated. See 30 T EX. A DMIN. C ODE § 111.219
    14
    (West 2007) (entitled “General Requirements for Allowable Outdoor Burning.”) 3
    Rhine’s first complaint regarding the delegation is that there is no
    evidence that the nature of the subject of the legislation could not have been
    practically and efficiently exercised by the Texas Legislature. We disagree. We
    hold that it is neither practical nor efficient for the Texas Legislature, which
    meets every other year for a few months, to determine exactly what materials
    should be banned from outdoor burning, and under what circumstances,
    including the wind speed, time of day, and other minutiae related to curbing the
    legislatively-defined “air pollution.”
    Rhine’s second complaint is as follows:
    Section 382.018 of the Texas Health and Safety Code provides no
    definitions, and with very few exceptions places no limitations
    upon, the TCEQ’s authority to promulgate rules that establish
    criminal violations, including those amenable to prosecution under
    Texas Water Code, Section 7.177(a)(5).
    While Section 382.018 does mandate limited circumstances
    wherein the Commissioner “shall authorize outdoor burning”
    notwithstanding the delegation, and does describe limited
    circumstances wherein the TCEQ “may not control or prohibit out
    door burning,” the delegation does not contain sufficient guidance
    3
    … In addition, this code section also touches on certain notifications to
    the Texas Forest Service, exceptions for city ordinances, wind direction and
    meteorological factors, stationing of flag-persons on roads, and other
    meteorological and timing considerations including wind speed. 
    Id. 15 concerning
    what conduct may be prohibited (and made a criminal
    offense) under the power delegated.
    Again we disagree.       First, the key phrase in section 382.018(a), “air
    contaminants,” is defined in section 382.003(2). See T EX. H EALTH & S AFETY
    C ODE A NN. § 382.003(2). Second, section 382.018(b) discusses when and
    under what circumstances, the commission shall authorize outdoor burning. 
    Id. § 382.018(b).
    Third, section 382.018(c) limits the commission’s authority
    under section 382.018(b).      
    Id. § 382.018(c).
      Fourth, section 382.018(d)
    further limits the circumstances under which the commission can control certain
    types of outdoor burning under 382.018(b). 
    Id. § 382.018(d).
    Fifth, section
    382.018(e) requires notification of TCEQ under certain situations that involve
    the supervised burning of waste.      
    Id. § 382.018(e).
      W e hold that these
    limitations and guidelines, along with our reasoning addressing Rhine’s first
    complaint, compel us to the conclusion that his second complaint is without
    merit.
    16
    VI. Conclusion
    We sustain the State’s point and hold that the trial court erred by granting
    Defendant’s Motion to Quash Information based on the premise that there was
    an unconstitutional delegation of authority by the legislature to an executive
    agency in violation of Article II, Section 1 of the Texas Constitution of 1876.
    The case is reversed and remanded to the trial court for further proceedings.
    BOB MCCOY
    JUSTICE
    PANEL B:    DAUPHINOT, GARDNER, and MCCOY, JJ.
    DAUPHINOT, J. dissents with opinion.
    PUBLISH
    DELIVERED: May 1, 2008
    17
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-07-319-CR
    THE STATE OF TEXAS                                                        STATE
    V.
    MICHAEL JOSEPH RHINE                                                   APPELLEE
    ------------
    FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
    ------------
    DISSENTING OPINION
    ------------
    The trial court held that the Texas Legislature improperly delegated certain
    authority to an administrative commission, the Texas Commission on
    Environment Quality (TCEQ), with section 382.018 of the Texas Health and
    Safety Code. 4 I would affirm the trial court’s judgment. Because the majority
    does not, I respectfully dissent from the majority opinion.
    4
    … T EX. H EALTH & S AFETY C ODE A NN. § 382.018 (Vernon Supp. 2007).
    As the majority provides, the legislature established criminal penalties for
    violation of the TCEQ directives banning burning of certain items under certain
    circumstances.5      The items and circumstances change according to some
    formula known only to the TCEQ.             Apparently because the items and
    circumstances change so often, the majority concludes that
    it is neither practical nor efficient for the Texas Legislature, which
    meets every other year for a few months, to determine exactly
    what materials should be banned from outdoor burning, and under
    what circumstances, including the wind speed, time of day, and
    other minutia related to curbing the legislatively-defined “air
    pollution.” 6
    If the legislature cannot keep up with the constantly changing determination of
    what is unlawful, how does an ordinary person have notice of what is
    prohibited?
    Article III, § 1 of the Texas Constitution delegates to the
    Legislature law-making authority including the right to define crime
    and fix penalties therefor.
    It is well established that the fixing of penalties and the
    punishment for offenses under the penal laws of the State is within
    the exclusive domain of the Legislature.7
    This authority may not properly be delegated to or assumed by another branch
    5
    … Majority op. at 4, 13.
    6
    … 
    Id. at 15.
          7
    … Ex parte Hayward, 
    711 S.W.2d 652
    , 655 (Tex. Crim. App. 1986); see
    also T EX. C ONST. art. III, § 1.
    2
    of government or commission except where expressly permitted in the
    Constitution.8
    Were the penalty a sanction short of imprisonment, this improper
    delegation would be less dangerous. But the penalty for a violation of the
    TCEQ’s burn ban of the day is imprisonment for up to 180 days and/or a fine
    ranging from $1,000 to $50,000.9            Clearly this is an issue of improper
    delegation of penal legislation, yet the majority addresses the issue only in
    terms of civil law.     I submit that existing criminal law should at least be
    considered. But even if we look to the teachings of the Supreme Court of
    Texas, we are instructed that “[t]he power to make laws is vested through the
    Constitution in the Legislature. This power gives the Legislature the right to
    define crimes and the punishment therefor, and this is done by statute.” 10
    In     Ex parte Leslie, the Texas Court of Criminal Appeals invalidated a
    statute empowering the livestock commission to create a penal offense for
    failing to dip cattle for fever ticks, holding that the law failed to reasonably
    8
    … See Ex parte Humphrey, 
    92 Tex. Crim. 501
    , 
    244 S.W. 822
    , 824
    (1922).
    9
    … See T EX. W ATER C ODE A NN. §§ 7.177(b), 7.187(1)(B), (2)(C) (Vernon
    2000).
    10
    … Dendy v. Wilson, 
    179 S.W.2d 269
    , 273 (Tex. 1944).
    3
    guide the commissioner in defining the elements of the offense.11
    Because the legislature has delegated to the TCEQ—a commission created
    by the executive branch—the authority to define the elements of a crime that
    carries a penalty of up to 180 days’ confinement, I would hold, as did the trial
    court, that this is an improper delegation of authority granted only to the
    legislature by our Constitution and affirm the trial court’s judgment. Because
    the majority does not, I respectfully dissent.
    LEE ANN DAUPHINOT
    JUSTICE
    PUBLISH
    DELIVERED: May 1, 2008
    11
    … Ex parte Leslie, 
    87 Tex. Crim. 476
    , 
    223 S.W. 227
    , 227, 230 (1920).
    4