Bcca Appeal Group, Inc. v. City of Houston, Texas

GROUP, BCCA APPEAL

INC., Petitioner, HOUSTON, Texas,

CITY OF

Respondent

NO. 13-0768

Supreme Court of Texas.

Argued September April

OPINION DELIVERED:

Rehearing September Denied Macey Espinosa Rodriguez,

Cristina Stokes, Kuryla, Matthew L. Reasoner LLP, TX, An- Baker Botts Houston Evan L.L.P., Young, Baker Botts Austin drew TX, for Petitioner. Kathy Gulley, Kristine D. Pat-

Aundrea LLP, rick, L. & Bruns Bertrand Gibbs II, Attorney, Sr. Assistant Pourteau Feldman, Lynn M. David Donna Edmund- son, City Attorney, Lee Houston Judith Chief, Section, Ramsey, Litigation General Fons, Stevenson, Lynette Mary As- Beth City Attorney, City sistant of Houston Le- gal Department, Higgason, Robert W. City Attorney, Houston Senior Assistant TX, for Respondent. Levin, D’Andrea, Arthur As-

Han M. C. General, Black- sistant Solicitor James D. General, lock, Attorney Office Wisdom, Law, T. Christina Wisdom PLLC, Brooke-Davidson, Carrick C. Gui- da, Flores, PC, James P. Sulli- Slavich & TX, van, LLP, King Austin Spalding Owens, At- County Rock Assistant Harris Jr., torney, Ryan, Harris Reed Vincent TX, County Attorney, for Amicus Houston parties. Curiae JUSTICE GREEN delivered the Court, in opinion which CHIEF HECHT, JUSTICE JUSTICE WILLETT, JOHNSON, JUSTICE GUZMAN, JUSTICE JUSTICE LEHRMANN, DEVINE, JUSTICE and in joined, and which JUSTICE BROWN III(B) Boyd joined as to Parts and Justice IV. the Texas whether

We decide (the Act) Air Clean Act Act’s already regulated Texas facilities were not mechanisms Wa- enforcement Houston, Tex., Act. air-quality preempt ter under the Houston ORDinance (Feb. (codified ordinance, 19, 1992) as the Houston ordi- Ordi and whether 21-164). Initially, incorporate can -Texas Commission nance con nance (TCEQ) Quality cooperated on Environmental rules with tracted as their current form amended TCEQ-permitted emissions ensure Because the Houston ordinance’s City’s future. borders complied sources within the provisions enforcement inconsistent City inspected law. emis require- the statutory enforcement sources, sions enforcement referred cases ments, registration ordinance’s re- TCEQ, pursued to'the civil enforce quirement makes what the Act unlawful pursuant ment the Water Code. See approves, judgment we reverse 7.351-.360. The Water appeals preemption court of as to and ren- contract with the ended in judgment Appeal Group. der BCCA cooperative arrangement its did However, we that the conclude ordinance’s TCEQ, because the desired enforce incorporation of rules does not vio- Act on its own “due nondelegation late the doctrine the Tex- TCEQ’s lax perceive[d] what to be en judgment as Constitution and affirm the (Tex. forcement efforts.”1496 appeals regard. court of the in that 2013, App-Houston pet. grant [1st Dist.] 2007, ed). In amended the 1992 Background I. to its own air-quality establish 1967, Legislature In the Texas enacted regulatory-compliance program Act, which is as Texas now codified adopted pro a fee to fund schedule Safety Chapter Health 382. Code Houston, Tex., gram. Ordinance Safety §§ 382.001- Code Health (Feb. 14, 2007) (amending Chapter 21 of TCEQ The Act empowers .510. ad- Ordinances). the Code The 2007 . minister and enforce the Act. Id. expanded the 1992 amendment ordinance’s 382.011; 5.001(2), §§ WateR scope regulation to include facilities ,013(a)(ll). end, To subject TCEQ regulation sources TCEQ adopt authorized rules for Act it under the and made “unlawful” regulating quality. air Tex. Health & operate facility the City’s inside borders 382.017(a). The facility registered unless the with was promulgated See 30 Tex Ad- such rules. Code,of Tex, City. Houston, ORDINANCES §§ 1.1-351.104. min. Code (2007). 21, VI, 21-162(a) 2, § ch. div. See, Furthermore, city. e.g., Houston a home-rule amendment incor is Concrete, specific of Hous., porated promulgated S. Crushed LLC rules (Tex.2013). 676, Act, 1992, In than pursuant referring rather City óf air-quality pollution regula Houston an to “air control laws and enacted regulate pollution generally, previously. ordinance to air it from tions” had Id. Hackney, Ryan opinion/editorials/article/Protecting-their- See also Note: Don’t Mess Houston, own-Industry-group-s-lawsuit-is-1665173. Texas: Air Act and The Clean Rev, 639, that, Preemption, php) (noting explaining City’s in 88 Tex. L. State/Local Editorial, ordinance, (2010) (quoting Protecting enactment of the the Houston Their mayor "applaud Industry Group's Is he fed- Own: Latest said would state and Lawsuit Ef- occurred,” regulation but Undercut eral without Houston’s fort Enforcement of Regulations, regulation, such Clean Air HOUS. to take the CHRON. “the needs 23, citizens”). (Mar. 2008), http://www.chron.com/ protect actions can its that it 21-164, Act, 21-164(a). or authorized state rule as amended Section (2) order; facility That the is states that certain or au- compliance approval such they currently “as are and as incorporated 21-164(d). Ap- BCCA thorization.” changed from time to time.” they to include a peal Group amended its suit challenge to the 2008 amendment. We Group operate Appeal BCCA members refer to the 2007 and 2008 amendments manufacturing plants integrated chemical collectively as “the Ordinance.” area. Houston Those refineries Group City filed Appeal BCCA and the extensively regulated by the plants are summary cross motions for traditional to the Act. TEX. pursuant judgment. In the trial court March 382.011, §§ HEALTH & SAFETY CODE granted Appeal Group’s motion and BCCA .023, February .051-059. BCCA motion, concluding that denied the seeking suit a declara- Appeal Group filed the Ordinance violates the Texas Constitu- tory judgment the 2007 amendment is Act, tion, preempted by there- Act, invalid and unenforceable under the result, As a trial fore unenforceable. Code, Texas Constitu- the Water and the Group’s granted Appeal court BCCA re- Appeal Group sought tion.2 also an BCCA quest injunction, enjoining injunction against the 2007 amendment’s enforcing the from Ordinance. 7, 2008, May enforcement. while the On pending, City passed an addi- suit was appeals the trial court reversed air-quality tional amendment to the ordi- judgment judgment court’s and rendered nance, that a violation of the providing City, concluding in favor of that the unlaw- incorporated TCEQ rules “shall be Ordinance was the Act and consistent with HOUSTON, TEX., ful.”3 ORDINANCE the Water Code and that the Ordinance 2008). 7, (May violation 2008-414 Such nondelegation did not violate the doctrine court,4 prosecuted municipal would be by incorporating of the Texas Constitution $2,000 per fines way between rules in as to include $250 with such (f). 21-164(c), (e), day of violation. In future amendments. 496 at 13. Furthermore, Court, Appeal Group the 2008 amendment made this BCCA asserts prosecution defense to it trial arguments it an “affirmative as did at the same prosecuted regarding preemption that con- court under section and nondele- (1) activity gation. first the Or- Approved dition has been: We address whether 2008-414, § Appeal Group with 21- 2. Three BCCA members are Houston, Tex, Ordinance 164(c). subject The trial court con- to the ordinance. standing Appeal Group has cluded that BCCA air-quality ordinance 4.While Houston challenge ruling the Ordinance. That was court,” "municipal City does not use the term appealed. 6 ri. 3. not 496 S.W.3d at guidance posted on the web- documents prosecut- sites confirm that violations will be replaced 3. amendment the earlier 2008 FAQ municipal About ed court. Draft "Civil, sentence, and criminal administrative Changes City Houston Air Pollu- to the of imposed by pursued sanctions law shall be Program Registration Or- tion Abatement exist,” where determined to violations are dinance, City Sustainability, of Hou. Office of statement, "It be unlawful for shall www.greenhoustOntx.gov/pdf/ordinance- any person operated operate or cause to be registration-faq.doc; Responsibili- Mandated any ties, facility comply [state that does not of Health & Human Servs. 7 Hous. Dep't (2014), Compare pollution http://www.houstontx.gov/health/ air laws].” control Hous- Responsibilities.pdf. Mandated- 21-164(b), ton, Tex., 2007-208, Ordinance

7 is Act preempted by dinance and the extent that is inconsistent with Subsequently, we address the preempting Water Code. state statute particu that nondelegation of Con- subject doctrine the Texas lar matter. Dali. Merck’s & Con Ass’n, incorporation stitution and the Ordinance’s cessionaire’s 852 S.W.2d at 491. course, of general rules. “Of city law and a ordi

nance repugnant will be held to each any other if other reasonable construction II. of Standard Review leaving both in effect can be reached. parties both move for “When words, other both will be enforced summary judgment the trial court possible under reasonable construc other, grants one motion and denies the Fall, tion. ...” City Beaumont v. of here, summary judg we review both sides’ 202, 206 (Tex.Com.App. S.W. judgment ment evidence and render 1927). Furthermore, entry “[t]he the trial court should have rendered.” S. legislation state into a field does Crushed, Concrete, LLC, 398 S.W.3d at 678. automatically preempt city that field from Traditional summary judgment proper regulation; regulation, local ancillary when genu the movant establishes that no in harmony general scope ine issue of material fact exists and the purpose enactment, of the state accept judgment movant is entitled as a matter Comeau, able.” Brookside Vill. v. 166a(c). of law. Tex. R. P. Crv. (Tex.1982). A. Powers a Home- Appeal Group argues BCCA Municipality Rule expressly preempted by Ordinance is 382.113(b) possess Home-rule cities section of the Act implicitly power of self-government and look to preempted by comprehensive structure Legislature not for grants authority, but the Act its and Water Code enforcement authority. provisions. for limitations on their In Lower Colorado River Au 51.072(a); Marcos, thority Dali. San we stated Tex. Loc. Gov’t Code Merck’s & Concessionaire’s Ass’n v. power limitation on the of home “[a] Dali, (Tex. by general rule cities law ... 1993). The express Texas Constitution mandates arising either an limitation or one no any by implication,” “shall contain we have but never delin provision inconsistent with the Constitu eated the distinction between the two. 523 State, (Tex.1975). 641, Instead, tion of or general of the laws 645 S.W.2d we by Legislature of Legislature’s enacted on State.” focus whether the intent XI, 5(a). Therefore, § art. provide a a appears limitation with “un Tex. Const. city’s See, home-rule is clarity.”5 e.g., ordinance unenforceable mistakable Dali. preemption similarly analysis regulation 5. Federal turns with a ex- federal law or to the legislative Cipollone Liggett on intent. v. impossible comply tent it is with both or Inc., 504, 516, Group, 2608, 505 U.S. 112 S.Ct. by obstructing Congress’s the state law ob- (1992). 120 L.Ed.2d 407 jectives as reflected the federal law. preempted ways: law State in three Carter, 533, Corp. BIC Pen v. 346 S.W.3d 537 (1) expressly, by specifically a federal law (Tex.2011). preemption While federal law law; (2) preempting impliedly, by provides fully developed more standards scope regulation of a federal or law indicat- analysis express implied preemption, ing Congress intended the law or federal preemption body federal is distinct a of case field; regulation exclusively occupy directly law that this Court has not relied on (3) impliedly, by conflicting or the state law 8 Ass’n, Abutahoun v. Dow 852 results.” & Concessionaire’s absurd

Merck’s (Tex.2015) Co., 42, 491, (stating Legisla- 494 “if 463 46 at Chem. S.W.3d 5.W.2d Comm’n, subject 325 preempt (citing Lottery matter Tex. S.W.3d ture chooses 635). it clari- ... must do so with unmistakable concluding express language

ty,” and “the Preemption III. Ordinance give compels this court [the statute] Legislature’s effect to the clear intent— Appeal Group BCCA contends preempted”); Tyra is the Ordinance following parts of the Ordinance that the (Tex. Hous., 626, 628 (1) preempted: en the Ordinance’s 1991) (stating [Legislature must ex- 21-164(c) “the in forcement mechanism section subject press (2) its withdraw (f); [to intent through regis the Ordinance’s city’s clear a home-rule domain] from requirement, corresponding tration language,” unmistakable and conclud- fee, of “facility,” which and the definition ing language of is both [the statute] “[t]he register. establishes who must Hous unmistakable”). op ORDINANCES, 21-161(a) clear and Because ton, Tex., determining an critical whether inquiry -162, -163, -164(c)-(f), (“facility”), -166. preempted is is whether preempted to the The Ordinance preemptive in- Legislature expressed its extent that is inconsistent with state law. lan- through tent clear and unmistakable Ass’n, Dali. & Concessionaire’s Merck’s 492, begin statutory construc- guage, we Furthermore, 852 “[w]hen S.W.2d Const, XI, analysis. See tion express an ordinance sever- contains 5(a); Dali. & Concessionaire’s Merck’s clause, ability pre severability clause Ass’n, 852 at 491. S.W.2d interpreting the vails when ordinance.” Bates, 406 549 Hous. v. S.W.3d Statutory Construction

B. (Tex.2013) (citing Tex. Gov’t Code 311.032(a), any which states: “If statute statutory review construc We severability, provision contains a Sews., Energy Crosstex novo. de prevails provision interpreting that stat Inc., Plus, 389 L.P. v. Pro S.W.3d ute.”). an express contains Ordinance (Tex.2014). “In construing statutes our Therefore, severability any provi clause.6 give is to primary objective effect preempted that are not affect the sions do Lottery Legislature’s intent.” validity remaining portions of the DeQueen, v. First State Bank Comm’n Ordinance (Tex.2010). other ordinances. Hous ini We op 1, 1-8; ton, Tex., ch. meaning of text ORDINANCES tially plain look to the Bates, see at 549. intent, legislative expression as the sole supplied dif “unless the A. Enforcement Mechanisms definition, a different meaning ferent context, Group Appeal from asserts meaning apparent BCCA compre- Act lay lead to out a plain meaning would and the Water Code applying analyzing preempts by judg- the whether a statute clared unconstitutional valid when ordinance, city’s any competent or of of court ment decree jurisdiction, unconstitutionality such shall severability 6. The Ordinance's clause states: any remaining phrases, affect of the sentences, sections, paragraphs, The claus- clauses, sentences, paragraphs sections and severable, phrases es and of this Code are of Code. this clause, sentence, any phrase, para- and if ch, 1, § 1-8. Houston, Tex,, Code of Ordinances graph or section of this shall Code de-

9 regime, (providing [TCEQ] enforcement endow the that “[t]he initiate hensive may authority an action TCEQ chapter with statewide under this to substantial enforce discretion, provisions specifically and address of this the code and Health and participate Safety cities enforcement. encompasses how Code [which the Act]”). Appeal Group argues the Ordi- BCCA must We determine whether the parallel nance’s enforcement mechanism Act the Code reflect and Water unmistak- preempted. ably legislative and thus We inconsistent clear intent to limit the agree. City’s authority to enact to an ordinance and, the air-quality enforce state standards Statutory Regime

1. The so, the whether Ordinance’s enforcement provisions Act are inconsistent Chapter of the Water the statu- 7 Const, XI, tory provisions. See. Tex. together the operate provide Code en- 5(a) § (providing that no city mechanisms for a ordinance forcement violation rule, any “shall Act, order, provision contain TCEQ or inconsistent permit the . State, with the Constitution of the levels. or government both the and local general the laws provides: by Legisla- enacted The Act State”); ture of this Lower Colo. River (a) municipality powers [AJ has Auth., 523 (quoting 645 S.W.2d by as are law in rights otherwise vested Geron, Sweetwater v. 552 municipality to: (Tex.1964),which states: “The intention (1) nuisance; abate a impose such limitations (2) enact and ordinance enforce ”). must ‘appear clarity.’ with unmistakable pollu- control air and abatement of tion, ordinance, any or other not in- Chapter 7 pro the Water Code or chapter consistent with this TCEQ may pursue vides viola rules commission’s or orders. Act, orders, TCEQ or tions rules or (b) An ordinance enacted a munici- TCEQ-issued permit by assessing ad pality chap- be consistent penalties or authorizing ministrative civil and or- ter and commission’s rules or action. Code WateR _ ders 7.002, .073,' .101-.102, §§ .051, .105, .203. Safety (em- circumstance, § & In TCEQ 382.113 each is afford Tex. Health Code added).7 Thus, phasis expressly great the Act ed discretion evaluate the viola recognizes municipality’s power to enact tion the appropriate penalty and determine ordinance, 7.002, .053, .203; §§ remedy. enforce an such an see but Safety 382.025(a) § cannot be with the inconsistent & Code Health (“If provisions or or or- statutory [TCEQ] pollu determines air analyzing statutory provi- exists, [TCEQ] may ders. order preemption look analysis, sions for our we action indicated the circumstances condition.”). Chapter the Act itself as well control as The Legislature Code, how the charged responsi which establishes has Water bility administering Act is enforced. See Tex Health the Act 382.011; given powers 7.002 necessary “the Tex WateR 28, 2001, 7.001(1); May Leg., Code defines as 7. The Water "Commission” Act 77th R.S., 18.01, Texas Natural Resource Conservation ch. Tex. Gen. Laws (TNRCC), 1985; Farming name Commission but TNRCC's see FPL Ltd. v. Envtl. Process- changed L.C., (Tex. agency’s ing part Sys., was 308 n. 2 review. See 2001 sunset 2011). Code Tex Water 7.051(a). § of the Water responsibili- Section 7.073 carry out its convenient Safety person any “If states: a violates Code ties.” Health Code Tex. [TCEQ’s] juris or 382.011(c). Furthermore, rule within the statute § as Governor (1) diction, brief, [TCEQ] may: assess the in his Greg explained amicus Abbott pen an against person the administrative voluntary TCEQ remedia- often seeks (2) alty subchapter; this and order under referring the compliance without and corrective action.” Id. person take TCEQ’s enforce- alleged violation to the TCEQ § a may The conduct hear 7.073. division, can be most effec- ment which (1) and, order, may: that a ing by find long- and way to remediation tive achieve penal a violation occurred and assess compliance. term (2) occurred ty; that a violation has find accord, TCEQ may, on its own seek The assessed; penalty that a should but brought action through civil an remedies (3) or that no violation has occurred. find by attorney general. Tex. WateR Safety 7.058; Id. See Tex. Health & (TCEQ authori- enforcement 7.002 Code 382.023(b). Therefore, TCEQ Code (“Subchapter §§ D: ty); id. 7.101-.111 penalty, a if it finds a need not assess even Penalties”). Alternatively, in a sub- Civil determining pen a whether violation. Others,” the Water chapter titled “Suit assessed, TCEQ must alty should be government, a local authorizes Code nature, consider factors include the though attorney, its to institute a civil own circumstances, extent, gravity of the relief, injunctive for suit district court act; history extent prohibited both, against person or a who penalty, civil violations; previous degree culpabil §Id. To committed a violation. 7.351. do violator; ity alleged of the the demonstrat so, government’s governing body the local violator; alleged good ed faith authorizing adopt must first a resolution gained through viola benefit economic TCEQ power, the exercise tion; necessary to the amount deter future joined “necessary as a and indis- violations; “any matters that other §§ party.” Id. 7.352-.353. The pensable may require.” justice Water bring thus a allows added), §§ In classi (emphasis 7.053 .058. TCEQ’s in- ensuring action still while fying compliance history, a site’s pro- in the civil enforcement volvement TCEQ’s categorizes executive vio director ceedings.8 moderate, major, or minor lations as If municipality a has not instituted significance. Admin. Code 60.2(a), (d). provisions, “major a lawsuit the above A violation” includes under TCEQ may penal “any assess an administrative included a criminal con violation Act, viction, ty against person required prosecutor who violated the which order, TCEQ permit prove culpable or or a a mental state or a rule issued level the conviction.” TCEQ the Act. intent secure under making money purposes; governments, City, of those such as the Local TCEQ through participate petition- in enforcement enter- also recommendations to the ing private property inspect air public or agency rulemaking; ing appealing sharing in- the results of its emissions and order, decision, ruling, act of the other spections when the with the TCEQ by filing petition the district court information; entering requests co- such into County. of Travis Tex. Health & operative agreements other 382.032(a), .0622(d), 111, .112, §§ .115. governments performance local for the of air- prior contract with the included enforcement, management, quality inspection, these functions. aid, technical and education and to transfer 60.2(d)(1)(E). Thus, § TCEQ report describing has the the facts and circum- authority to determine whether a violation stances of alleged criminal environ- 7.203(b); § mental has in fact occurred violation.” Id. and the discretion to see Code CRiM. (defining that violation 2.12 “peace decide whether warrants an Proc. officers”). As soon practicable penalty, and no considering administrative various later forty-five days than factors, receiving after including prior history. criminal notice, TCEQ “shall If evaluate the TCEQ an assesses administrative report and determine alleged whether an penalty, payment of penalty such “is full environmental violation exists and wheth- complete satisfaction the violation er administrative or civil remedies would penalty for which the pre is assessed and adequately appropriately address the any cludes other civil or penalty criminal alleged environmental violation.” for the same violation.” Tex. Water Code 7.203(c). § In deciding WateR Code instance, § In that no 7.068. other action whether administrative or civil remedies against can be sustained the violator. See appropriate, would be TCEQ shall summary, id. government a local may consider the factors listed in section 7.053 institute civil suit accordance with the .203, 7.053, §§ Water Code. If statute, but if TCEQ does and the TCEQ determines that civil or admin- assesses an penalty, administrative the lo istrative remedies are appropriate, government cal precluded from any fur provide shall written notice to the 7.051(a), §§ ther action. See id. .068. peace “that alleged officer environ- Regarding enforcement, criminal mental violation is to through be resolved provides person the Water Code that “[a] administrative or civil means ap- an commits offense the person inten 7.203(d). propriate § authorities.” Id. If or tionally knowingly, respect does not make a determination conduct, person’s violates” various air per forty-five days, or determines that an mitting order, permit, statutes or “an or alleged violation exists and administrative exemption adopted issued or a rule under or civil inadequate are or inap- remedies Act, Chapter [the in] Health and propriate provides peace notice to the 7.177(a); Code.” Id. see id. office recommending prosecution, (relating prosecution 7.203 to criminal of only may prosecuting then attorney a permit-holder’s alleged violation of the proceed prosecution against with criminal Act, TCEQ promulgated under the (d) (“A permit-holder. 7.203(c), Act, or permits); orders or prosecuting attorney may prosecute 7.001(2) (defining “permit” to include a alleged [TCEQ] violation if the deter- “license, certificate, registration, approval, mines that or administrative civil remedies authorization”). form of other Each Thus, adequate appropriate.”). day separate of such conduct constitutes the statute mandates administrative and offense, punishable and such offenses are possible, civil remedies whenever and the by specific periods, fines confinement charged with the discretion to as imposed under the statutes creating make that determination before crimi- 7.186, .187(a). §§ the offense. Id. nal proceeding may Before move forward. See peace officer an alleged refer id. viola tion to a prosecuting attorney, peace 2. The Ordinance notify [TCEQ]

officer “shall in writing alleged criminal environmental vio incorporates by The Ordinance refer- lation and include with TCEQ’s the notification a regulatory ence the standards

12 River clarity.” Lower to Act. mistakable Colo. Houston, adopted pursuant so, VI, Auth., we at 645. To do 523 S.W.2d ch. art. Tex., Code of Ordinanoes intent, Legislature’s 21-164(a). ascertain §2, The Ordinance makes div. of the plain language starting with the any person operate for to it “unlawful a by viewing the statute as statute and any facility that does operated to be cause whole, specific provisions just not as comply requirements [the with the not Tyra, See S.W.2d isolation. mandates TCEQ rules]” and incorporated statute); (analyzing plain language of the a that State v. Associated Metals Minerals punish- of this section shall be [violation (Tex.1982) 407, 410 Corp., 635 S.W.2d upon by first a fíne of not able conviction whole). (reading the as a ana statute than than nor more less $250.00 intent, we thus consider lyzing preemptive $1,000.00. pre- If the has been violator together the Water Code the Act with section, viously this a convicted under of the Act. See provisions for enforcement punisha- this shall be violation of section § (providing that 7.002 Water $1,000.00 by of than ble a fine not less initiate an under [TCEQ] may action “[t]he $2,000.00. nor more than of this chapter provisions to enforce (e). 21-164(c), Houston Under and code and Health code, culpable mental is municipal Act]”); encompasses Associated [which required to secure conviction: Corp., 635 & Minerals S.W.2d Metals or in any in this Code ordinance When Act (reading predecessor to the 409-10 city an act is ... de- made Legis concluding that the as a whole and ..., yet culpa- to no clared be unlawful Air for the Texas Control lature intended an prescribed mental state is as ele- ble agency predecessor Board — of necessary ment conviction that authority to the sole issue have —to act, con- person then a shall be unlawful ceilings); see permits set emission and committed unlawful sidered have Melton, 158 Tex. also Weslaco if he it acted with act can shown (1957) (explaining knowledge respect to the nature demonstrates the 'that statute itself “[t]he or to circumstances sur- his conduct part on the intention rounding his conduct. milk grades provide establish 6.02(f) 6(b); see therefore as well as the specifications Tex. Penal Code 1— (“An by municipal offense ordi- labeling defined of the same to the end unifor State”); dispense prevail throughout not the re- mity nance shall Vill, at 796 culpable of a mental state Brookside quirement exceeding fine referenced state punishable (explaining offense is ar preempted specific [$500.00].”). legislation federal The Ordinance thus treats regulation of mobile homes-con eas incorporated TCEQ violation of the struction, safety, installation-but requiring cul- a criminal matter state, regulation “ancillary to and harmo local resolved in mu- pable mental purpose ny general scope court. nicipal enactment, acceptable,” is the state Analysis the lo regulating therefore ordinance preempt homes must determine whether a cation mobile was We ed). legislative on a munic is unenforceable limitation home-rule The Ordinance and, therefore, it inconsistent air-quality the extent is ipality’s power enforce state XI, Tex, preempted. “un appears with standards Const. 5(a); Dali. Merch.’s& Concessionaire’s ment when inconsistent with Ass’n, 852 at 491. requirements. Code’s Water language of section 382.118 of inquiry Our then is whether the unmistakably the Act expresses Act, Ordinance inconsistent with the Legis lature’s desire to preempt any orders, TCEQ ordinance rules or or the Water “inconsistent” Act or with a Code’s enforcement of the Act. Ap BCCA TCEQ or rule order. HEALTH peal argues TEX. Group the Ordinance’s § SAFETY CODE 382.113. That section provisions criminal enforcement are incon provides “municipality that a pow has the statutory sistent with the requirements for rights ers and as are otherwise vested by criminal enforcement action under the Act. municipality the to ... enact Each law and violation of air-quality standards un an enforce ... not inconsistent the der Ordinance is also a violation cov chapter or [TCEQ’s] Act, with rules or by ered its provi enforcement orders,” sions, and “[a]n ordinance enacted a TCEQ’s and the rules. See Tex. municipality must (when §§ be consistent [the person 7.177 a com Watee Code [TCEQ’s] and the Act] rules Act), .203(a) and orders.” mits an offense under the 382.113(a)(2), (b) § added). Id. (emphasis (TCEQ’s criminal enforcement review is recognizes Because the statute a munici applicable to prosecution criminal of al pality’s “powers rights and as are other leged violations); environmental 30 law,” wise vested not grant §§ does 1.1-351.1Ó4; Houston, Admin. Code municipalities any specific authority ORDINANCES, 21164(a). § Tex., Code regard enacting to enforcing Therefore, or air pollu any enforcement of Ordinance ordinances, tion the Legisla indeed violations is also subject to enforcement grant ture does to authority home-rule under state law. Water Code section 7.203 only cities but limits cities’ requires permit-holder’s home-rule that a alleged au vio § thority. 382.113(a); Id. see Dali. lation be reported writing Ass’n, Merck.’s & Concessionaire’s TCEQ before referral prosecuting at 490-91. Section attorney 382.113 does prosecution. criminal just that —it municipality’s power 7.203(b). limits § The statute Watee air-quality enact ordinances to grants TCEQ those forty-five days to deter that are consistent with the Act TCEQ mine whether a actually violation exists orders, rules and and' likewise limits a and whether or administrative civil reme municipality’s power enforcement to en adequately dies would appropriately forcement “not inconsistent with” the Act address violation instead criminal TCEQ or or 7.203(c). orders. Tex. Health & prosecution. A gov local 382.113(a)(2). Here, may proceed ernment prose with criminal expressed (1) its to lim intent cution if TCEQ no makes it a city’s power home-rule in clear and enforcement mechanism determination language. id.; unmistakable See during forty-five days, (2) Dali. those Ass’n, Merck’s & Concessionaire’s decides that administrative or civil Furthermore, at when look remedies would not adequately appro ing statutory regime whole, priately as a violation and issues address including the Code’s Water enforcement written notice recommending criminal provisions, the Legislature clearly (d). prosecution. 7.203(c)(1), limited city’s ability Ordinance, contrast, air-quality enforce stan allows- criminal criminally, dards allowing prosecution such alleged enforce- an violation without chance, TCEQ, TCEQ, given the determines report

requiring written civil or remedies would an administrative giving opportunity without the situation. See appropriately wheth- address report and determine review exists, (“Payment without an administrative violation id. 7.068 er a in fact satisfac- complete its discre- full and allowing to exercise is penalty penalty administrative tion of for which determine whether violation appropriate. civil precludes or civil remedies are other assessed violation.”). ch. for the same Houston, Tex., penalty criminal Code of ORDINANCES Thus, 21-164(c)-(f). VI, 2, § authorizing prosecution div. even By primarily Ordinance converts what an adminis- determines when re- and civil enforcement remedy penalty administrative even no trative or civil —or primarily crim- gime remedy, state law into a under appropriate all—to be the removing pri- regime, inal enforcement TCEQ’s moots discre- City effectively authority from mary enforcement authority to select an TCEQ’s tion and the enforce- agency that can ensure consistent imper- That is enforcement mechanism. Concrete, LLC, that placing the state and ment across missible. See S. Crushed health authority (“[T]he in the of the local express lan- hands 398 S.W.3d 679 officer, municipal court city personnel, 382.11[3](b) to compels of section us guage Although the Water Code allows judges. Legislature’s intent give effect to the clear bring to civil suits governments local city may pass that a not an ordinance enforcement, TCEQ requiring decision.”). be [TCEQ] effectively moots a ignores a joined party, Ordinance in And stands direct contravention authority provides prosecut- that enforcement Legislature’s that “[a] directive criminal without only for enforcement ing attorney may prosecute alleged not TCEQ involvement. [TCEQ] violation determines or civil remedies are ade- administrative that the Ordinance’s City The contends quate appropriate.” Tex Watee this inconsis- resolves affirmative defense 7.203(d). § provides: tency. The Ordinance prosecu- It to is an affirmative defense Finally, prosecution the Ordi- under prosecut- that the tion under section conviction, in a “criminal nance results (1) activity has been: ed condition prove a require[s] prosecutor which Act, by the state authorized Approved or state,” culpable mental therefore escalat- (2) order; That the rule or state ing “major the violation to a violation” any such facility compliance is in history. compliance the site’s 30 Tex. Ad- Act, or authorization under the approval 60.2(d)(1)(E); § Tex., Houston, min. Code order. state rule l-6(b). Such histo- Ordinances, Code of 21-164(d). into consideration when ry taken This does resolve First, appropriate TCEQ determines inconsistency for two reasons. violation, any action for future TCEQ given course of requires that the statute “major significantly esca- violation” whether opportunity decide 30 penalty lates the a site will receive. enforcement prosecution appropriate is the The Or- 60.2(g)(1)(A). as a prosecution, not mechanism before Tex. Admin. Code dinance, therefore, Legisla- thwarts the prosecution. See defense WateR prevail 7.203(b). Second, “uniformity shall ture’s intent the affirmative throughout the state.” See Wesla- facility from protect defense does co, at 19-20. prosecution the Ordinance when the under

15 ” Through provisions requir- the various er remedies.’ correctly The main- ing tains, to consider fac- numerous relying on Black’s Dictionary, Law relating to tors the circumstances of each that a remedy cumulative is “a remedy violation, including jus- “matters that party available to another addition tice require,” Legislature ex- remedy that remains in still Cu- force.” pressed its clear intent have the Dictionary remedy, mulative Black’s Law determine the remedy in appropriate ev- (10th ed.2014) (emphasis added); see ery §§ case. See Tex. WateR Code 7.053 Co, Mann, Union Cent. Ins. Life (listing the factors the must consid- (1941) (con- er), .058 (requiring TCEQ to consider cluding that destroy “cumulative” does not 7.053). the factors listed section More- legal right thereto”). “in but is addition over, by giving discretion mistaken, however, in conclud- determine whether administrative or civil ing that “remedies are cumulative” are adequate remedies appropriate to essentially exception creates an to preemp- violation, address a ex- tion law “un-preempting” an ordinance pressed its clear intent favoring consistent regardless of inconsistency its with the Act use of enforcement mechanisms across the and the Water Code. The use of “cumula- 7.002, .051, .203(d). .068, §§ state. id. remedy” tive thus indicates that properly The Ordinance is inconsistent leg- with the existing enacted law still remains in force. intent favoring islative statewide consisten- Dictionary 1485; See see Black’s Law cy enforcement, which relies on TCEQ Comm’n, also Acker v. Tex. Water discretion to an appropriate select enforce- (Tex.1990) (“A 3Ó1 statute ment mechanism for each violation. -See presumed to by have been enacted 7.203(d). §id. that We conclude the Ordi- [L]egislature complete with knowledge provisions, nance’s enforcement section existing it.”). law and with reference 21-164(c) (f), through inconsistent Courts applying statutory a cumulative- statutory requirements for criminal provision, here, remedies such as the one prosecution and statutory pro- scheme applied have init reference laws exist- viding options, other enforcement and we ing at the time of the statute’s enactment. therefore that provi- hold the enforcement See, e.g., Co., Union Cent. Ins. Life sions preempted. Ordinance are (holding S.W.2d at 481 “protest that Const, XI, 5(a); § See Tex. art. Tex. statute’s” use of the word “cumulative” Safety § 382.113. Health & Code means the statute is in addition to the existing right of reimbursement taxes Because the statute authorizes demanded, wrongfully not intended to de- penalties civil and states that “remedies stroy legal right). said, that We have not cumulative,” ... are City argues it is however, that provi- a cumulative-remedies precluded not enacting from its own en n sion can save an otherwise inconsistent forcement mechanisms addition to the preemption. ordinance cannot from We Water Code’s enforcement provisions. See conclude that 7.004 acts as an section ex- The con 7.004. Tex. Code WateR ception rather, preemption analysis; express provisions tends that “the legislative evinces the intent then- un-preemptive [Water have Code] [an] ef or existing lawfully fect ... laws setting than otherwise [because] [r]ather created forth the ‘exclusive remedy1... abrogated by remedies are not [Water Water remedies are Code’s] ‘cumulative all oth- provisions. Code See Code Water contain rects that no ordinance “shall § 7.004.9 any provision inconsistent argues be City further The Legislature of by the general laws enacted exempt a Code “does not cause the Water XI, 5(a). Const, A this State.” being or complying with sub person from power lacks to enforce municipality thus law,” ject has both to other inconsistently with air-quality pre civil remedies as authority to seek orders, Act, or the TCEQ’s author Code scribed the Water provisions. See Code’s enforcement Water through crimi ity enforce the Ordinance id.; 382.113. Tex. Health Tex, prosecution. nal WateR grant purports An ordinance that section, however, cannot be This 7.005. power can- municipality enforcement such to enact grant authority other as a read in this case The Ordinance stand. Act or inconsistent with the laws that are authorizing criminal just does explains It instead the Water Code. notice to the requiring prosecution without may violating the Act also violate conduct TCEQ, requiring that the without (e.g., body law separate and distinct forty-five days to whether have determine nuisance). common Even conduct law occurred, and without a violation has re- the Act constitute complying with still TCEQ’s to deter- gard discretion law, such some other a nuisance violate prosecution is the mine whether ordinance, municipal and the violator as a remedy. only adequate appropriate exempt from lawsuit based would Moreover, provi- no makes Ordinance simply on because another cause action for civil enforcement or enforcement sion Act. complying he was through remedies —mecha- administrative expressly ad- Act nisms favored under power municipality’s to enforce dressed the Ordi- orders. Because rules and standards, “a providing that air-quality authorize provisions nance’s enforcement rights power the as municipality City air-quality to the state’s the enforce by the munici- law in are otherwise vested a manner that is inconsistent standards in .., pality an ordinance the to enforce provisions, enforcement statutory with the ... pollution of control and abatement air provisions of those the conclude that we Act or the with [the not inconsistent preempted. are Ordinance orders,” TCEQ’s] Health & 382.113(a)(2) persuaded (emphasis are We Code added). Furthermore, inconsistency is re- argument that di- Constitution merely of Code clar- judicial opinions "section 7.004 Water one 9. Two administra- away opinion section 7.004. Each from tive reference ifies does not take that Code previously-existing common clarifies law that remedies common-law to landowners their abrogated by rights the Water were not grant rights; it does not addi- enforce them Discovery provisions. See enforcement In re Application Pilgrim’s rights”); Pride tional S,W.3d (Tex. Inc., 898, Operating, 903 1999-0421-UIC, Corp., 2003 WL No. (ex- 2007, orig. proceeding) App.-Eastland 25649069, (Tex. Office of Admin. at *40 State right plaining aggrieved parties to have a that 4, 2003) (explaining Hearings that June bring litigate their in suit and causes of action injection party claiming wastewater appropriate sec- an court because Water Code trespass or a nuisance would constitute a right private of a refers to "the tion 7.004 litigate in court because those claims any pursue corporation to avail- or individual "[sjuch rights preserved, law common remedy”); City able common law Domel injection-well permit does not relieve S.W,3d 349, Georgetown, (Tex.App.- permittee liability”). of civil a denied) pet. (explaining that Austin provision man- The suggests the Ordinance’s that our solved dissent construc- is dating cooperation. provision That re- Ordinance unreasonable contrary precedent. preemption our quires City health officer to will hold an We be consistent conduct an for the program effective any with laws if “reasonable con- of air ... pollution abatement [which] in leaving struction both effect can be [cooperating shall include reached.” Dali. Concession- Merck’s attorney county, city and with state and Ass’n, at 491 (emphasis aire’s officers, offices, departments and federal added). A upon construction relies prosecution in agencies filing city to opt authori- out of enforcement legal actions civil and en- granted ty it under the ordinance-authori- pollution quality forcement of and air air we ty is hold with state inconsistent law-is law, regulations. standards rules and reasonable, hardly par- however. This is ticularly Houston, Tex., where, ch. such as true a case of Ordinances VI, 1, 21-146(3). coopera- recognized, the court of appeals art. div. as City response is enacted the tion mandate at the Ordinance directed officer, statutory person scheme the requiring health to co- viewed lax.10 496 at 17. rely We cannot operate the enforcement violations. on the to exercise decline its more See id. But nowhere does Ordinance stringent authority enforcement under require city city other officials attor- very reason the Ordinance —the Ordinance neys, prosecute who under the violations consistency exists—to Ordinance, find between the cooperate TCEQ. statutory Ordinance and the enforcement ch.2, VII, (pro- See id. div. scheme. viding attorney charged city City in representing “all actions Furthermore, the dissent dismisses the court”; thus, proceedings before legislative goal uniformity of statewide city attorney prosecutes violations un- enforcement, asserting that ordinances are Ordinance). promise

der the Such subject on preemption field based cooperation hardly remedies the Ordi- state laws. on City The dissent relies authorization of criminal enforce- nance’s Brookside Village to conclude that field ment, which directly at odds with the preemption apply does not and the crux of statutory requirement prosecut- consistency, the issue is which can attorney TCEQ ing the to exercise allow City achieved the allowing to enforce to if its determine other reme- way discretion in the Ordinance that does not vio- appropriate. are dies See requirements. late the statutory 496 Water 7.203(d) (“A prosecuting attorney (citing City at S.W.3d 16-17 Brookside of prosecute- alleged Vill, 796). an if violation 633 explained S.W.2d We in at [TCEQ] City that determines administra- that Village regula- Brookside local or adequate is acceptable tive civil remedies tion when state has en- appropriate.”). tered a field of legislation regu- the local Ordinance, Mayor] One commentator noted: chose to has enact [the “applaud said he would state and federal delays in with enforcement ac- [F]rustrated that, TCEQ regulation if it But occurred. without City monitors tions after re- violations, to City actions ported pollution air take that it can needs protect to its citizens.” amended its contract with so that 639, 644, bring Hackney, supra independently (quot- at it could suit for such note 647 Editorial, 1), ing why supra explaining violations.... note

18 or inadequate inappropriate, or after harmony” in with “ancillary to and lation is such a determi- TCEQ failed make 633 at 796. legislation. the state S.W.2d forty-five days). We find nation within here. For the reasons That is the case legal applica- dissent’s support no above, not in Ordinance is explained language of” the “extent comprehensive enforce- harmony with the Ordinance, Brook- however. See under the Act and the Water ment scheme Vill., (explaining at side 633 796 S.W.2d ancillary; in- Code. Nor is the Ordinance that no conflict existed between federal stead, attempts circumvent extent, acts that “to an TCEQ’s statutorily mandated discretion construction, as to preempted field stringent enforcement of air- allow more homes” safety, and installation mobile through criminal en- quality standards regulated because the ordinance issue in court. municipal forcement homes); In re the location mobile San- uphold Finally, the would dissent (Tex.2002) (hold- chez, 81 S.W.3d provisions of the Ordi the enforcement an ing that no conflict existed between limiting on a construction nance based “expressly al- Election Code statute that only that criminal prosecution would allow home-rule cities establish lows proper notice after the receives requirements in mu- application their own forty-five days either fails act is- and the ordinance at nicipal elections” that a oc timely or determines violation that); sue, just which did Tex. Indus. En- civil that curred and administrative Energy v. CenterPoint ergy Consumers inappro inadequate remedies would Elec., LLC, Hous. resulting in a recommendation for priate, law, (Tex.2010) prior (explaining that case at 11. prosecution. criminal on agency’s relied own sever- which no dissent’s call quarrel have We rule, ability a Public Utili- had invalidated air-quality for enforcement the state’s only timing ty rule Commission law, re standards consistent with state rule, of the not the interest rate portion prosecution criminal for cases serving rule). al- Never have we portion failed to act or has which the applicability re- tered an ordinance’s prosecution. criminal recommended city’s authority under constructed 7.203(c), (d). But we in- patent to eliminate order WateR disagree suggestion the dissent’s consistency. contrary, To we have pre can the Ordinance from we save con- clear “an ordinance which made into the emption by reading language Or legisla- flicts or is inconsistent with state simply is not there. dinance impermissible.” City tion is Brookside invalidate the Ordi 796; have us Vill., dissent would see that it allows nance “to the extent” Beaumont, (holding at 206 S.W. prosecution inconsistent essentially directly re- an ordinance fail”). statutory safeguards ensuring to state law “must We pugnant discretion, advocating for a essentially re provi- the enforcement cannot invalidate “to the Ordinance extent” write sions of the Ordinance “to the ex- (in inconsistency. 496 at 15 they that S.W.3d as uti- tent” that will inconsistent rather, City prosecutor having that can structing by City; lized held prosecution by under criminal that the enforcement authorized proceed with law, is inconsistent with state the Ordinance after the receives Ordinance provi- timely that we must hold that the enforcement proper notice determines impermissible, Ordinance are would sions civil remedies administrative and

19 will of Legislature violate the as ex- The court of appeals concluded pressed Chapter section 382.113 and that 7 permitting pro concurrent Code, the Water and are thus cess preempted was not by relying on preempted. State, Unger v. which held that a municipal making ordinance unlawful drill an oil summary, Legislature has enact- gas or well within the limits without a comprehensive regulato- ed and flexible city-issued drilling permit was ry regime investigation for possible into preempted by legislation granting the Tex violations of the Act and consistent en- authority Railroad Commission to issue air-pollution forcement the state’s laws. drilling permits for such wells. 496 The specific enacted require- State, at 19 (citing Unger S.W.3d v. prosecution ments criminal of a viola- 811, (Tex.App.-Fort S.W.2d Worth rules, orders, the Act or or refd)). pet. The court of appeals permits. The Ordinance the City allows mistakenly Unger termed a “writ refused” requirements, circumvent those creat- incorrectly case and therefore ing a concluded parallel enforcement mechanism that the case the precedential had TCEQ’s without deference to the value statutori- Supreme ly Court case. 19. Unger mandated discretion. Id. at Legislature’s The Court, was not by intent administrative reviewed this and civil as the reme- stated, applied possible appeals dies be court of by whenever but the Court the discretion of the by Criminal Appeals. Unger, thwarted the Ordinance’s discretionless criminal en- (reflecting Unger was provisions. forcement We conclude that appealing a criminal conviction which was provisions, Ordinance’s enforcement jurisdiction under of the Court of 21-164(e) (f), through section are inconsis- Appeals). Criminal A petition by refused statutory procedural tent with the require- the Court of Appeals Criminal does not ments for prosecution as reflected carry precedential the same weight as a Thus, Act and the Water Code. or petition by writ refused this Court. 21-164(c) (f) section through of the Ordi- App. (“If Compare Tex. R. P. 69.1 four preempted. nance is judges the Court of Appeals] [of Criminal grant

do not vote to a petition for discre Registration Requirement B. and Fees review, tionary petition the ... is re App. 56.1(c) (“If fused”), with Tex. R. P. “It Ordinance states: shall be un- Supreme Court ... determines any person lawful for to operate or cause appeals’ the court of judgment is correct operated any facility to be unless there is a legal principles registration facility” announced City. opinion correct, HOUSTON, TEX., are likewise the Court CODE OF ORDI- petition[,] will refuse the VI, 2, § NANCES ch. [and] [t]he div. 21- 162(a). court of appeals’ opinion ... The Act has the states: “An same precedential opinion value as an municipality enacted be consis- Court.”); Supreme State, chapter tent with this see [TCEQ’s] and the Sheffield rules and orders and 814 (Tex.Crim.App.1983) make un- curiam) (per approved (emphasizing a condition or act or au- “that the sum lawful mary chapter petition thorized under refusal of a for discretionary [TCEQ’s] orders.” Tex. Health & review Court of Criminal Appeals] [the 382.113(b) value”). (emphasis Thus, is of no precedential Unger add- ed). dispose does not of this issue. Antonio v. Adjustment San City argues that its The Ordinance’s (Tex.2002). Wende, registration

requirement separate of a statutory principles or the Act Under well-settled does not make unlawful what construction, statutory begin require- we with the TCEQ permits, but that the Shumake, 199 ministerial, language itself. State v. pro- is a administrative ment (Tex.2006). “If the identify polluters stat- that will cedure and must unambiguous, Act ute is clear and we inspections that and the fund according to their common municipality apply to its words TCEQ expressly allow a resort[ing] to rules meaning without Safety See Tex. conduct. & Code Health 382.111(a) construction.” Id. (power inspec- §§ conduct to .113(a) ordinance). tion); to enact (power reg- to requires The Ordinance facilities Furthermore, Act enables while City by filing application ister with the facilities, to TCEQ permits issue to registration corresponding paying abridge it City contends that does Houston, Tex., fee. Ordinanoes, Code of municipalities require reg- authority to -162, -163, 21-161, §§ -166. “It shall identify subject to to en- istration entities or any person operate unlawful § id. 382.051 forcement efforts. any facility unless operated to be cause (power permits). The ar- City’s issue Id. registration facility.” for the there is a unavailing are do not guments save 21~162(a) added); id. (emphasis § see preemption. the Ordinance from “facility” “registra- § (defining tion”). prosecuted Appeal Group points out that a Such violations BCCA fine not municipal a facility’s operations complying with the Act court and result $1,000 a nor more than TCEQ none- than rules and orders would less $250 conviction, $2,000 for a up first theless be made unlawful the Ordinance 21-162(a), § subsequent conviction. Id. facility register if that failed to (c). day registration consti- registration Each without City or fee. See pay Hous- 21-162(d). § 21161(a) separate §§ Id. tutes offense. ton, Tex., Ordinanoes, Code -162, Thus, -163, BCCA (“facility”), -166. recognizes- the Act While the reg- Appeal Group argues, the Ordinance’s ordinances, authority to enact requirement preempted be- istration un Legislature supplies a limitation with unlawful a condition or “make[s] cause cannot clarity ordinance mistakable —an approved act or authorized under [the Act] approved a condition or act make unlawful orders,” [TCEQ’s] or in direct or the rules Act or or orders. under the rules Safety Act. violation & Health 382.113(b); Health 382.113(b). agree. We S.W,3d Concrete, LLC, 398 see Crushed S. (“The acknowledges city’s plain language Act at 679 section 382.113(b) unmistakably air forbids ordinances control right enact (1) nullifying from that .is authorized two the ordi an act pollution with limitations: [TCEQ’s] or rules [Act] not be inconsistent with either nance must orders.”). Act, orders; (2) or Under the or or Act rules authority to air emis con has the authorize “make unlawful a sions, authority includes the approved or authorized under which issue act dition air con permits for sources of [TCEQ’s] or orders.” and enforce Act] [the 382.113(a)(2), (b). ad apply taminants. 382.051. The We operat pre-construction permits, principles same used to construe statutes ministers special permits, and “other municipal ing permits, to construe ordinances. Bd. of Thus, unless, a necessary.” facility TCEQ ration of as permits rules remains have, permit TCEQ the may by Appeal Group argues, incorpo issued BCCA such operate City’s it ration the allowing to the violates Texas within Constitution. II, may compliance in jurisdiction, and be full 1 (guaranteeing See Const. 5(a) permit conditions, separation XI,' yet powers); the facili- of id. art. facili- ty’s operation (creating authority). will if the home-rule be unlawful The court registered City. not also the of ty incorporation concluded that the appeals has 21- was because the Court of Criminal Houston, Tex., ORdinances, lawful Code of Concrete, 162(a). Appeals “already upheld Legisla Southern has the Crushed LLC, the air-quality rulemaking denied Southern Crushed ture’s of delegation municipal permit application authority Concrete’s to enforcement [the] though TCEQ previously TCEQ”; TCEQ adopted the even had is- the rules the air-quality permit authorizing incorporated con- sued an codified the Administrative facility. provisions implement at to powers struction of there, delegated The which to Legisla issue and duties it restrictions, imposed ture; City’s location incorporation made unlaw- of those act approved by pursuant ful an is to that delegation rules lawful consequently preempted. was ex- to Id. We Ordinance remains con ensure city plained “a ordi- law. pass sistent with state at 22. effectively [TCEQ] agree nance that moots de- incorpo We Ordinance’s cision,” which of is ration of precisely effect rules does not unconstitu registration requirement city tionally delegate the council’s lawmak City’s requirement ing power. 679. The case. facility operate register that a to The incorporates Ordinance ten

lawfully effectively of moots the effect chapters of Ad found TCEQ permit that has been issued and they currently ministrative Code “as are facility operate lawfully. Ac- allows they may changed and as from time re- cordingly, registration Ordinance’s time ... as if in this written word word quirement preempted by the Act. HOUSTON, TEX., section.” CODE OF registration requirement Because is ORDINANCES, 21-164(a). Ap BCCA Act, preempted we need ad- argues that peal Group the Ordinance’s fines, accompanying fees, dress defi- adoption of future amendments unconstitu “facility.” of nition Houston, Tex., tionally lawmaking core delegates power 162(c)- 21-161, §§ ORDINANCES, to, from council TCEQ. The (d), -163. We hold that the Ordinance nondelegation doctrine the Texas Con 21-161, provisions registration in sections stitution states: 21-162, 21-163, and 21-166 preempted. are of the powers Government shall into State Texas be divided Incorporation of Rules IV. departments, three distinct each only to preempted separate The Ordinance is shall confided to a which body magistracy, extent that the Act inconsistent with wit: Those which one; or the Water See Dali. are are Legislative Merck’s those which Code. Ass’n, another, at 491. those Concessionaire’s Executive which Therefore, another; provi no person, while the are enforcement Judicial 2i-164(c) persons, being of the Ordinance in sions section collection one (f) through preempted, incorpo departments, shall these exercise Thus, City of the Tex. Gov’t Code 311.027. attached either power properly adoption of others, argues, the Ordinance’s except in the instances herein from time to they may changed as be rules expressly permitted. not violate the permissible time is and does Const, II, nondelega- § 1. “The sec- separation-of-powers doctrine. While sparingly,” be used should doctrine directly tion 311.027 does relate should, possible, when read and “courts doctrine, nondelegation Legisla- it is the as delegations narrowly uphold their validi- acts, legislative referencing its ture own Eradication Tex. Boll ty.” Weevil statutory principles note that used we Lewellen, 454, Found., Inc. 952 S.W.2d v. construction of govern construction also (Tex.1997). 475 Adjustment Bd. ordinances. of of of Group agrees that Appeal Antonio, BCCA 92 at 430. There- San S.W.3d existing statute currently to a reference fore, of municipality’s incorporation reen- constitutional, argues but that would be is constitution- actments amendments incorporation the Ordinance’s to that ally permissible, delegation if the changed from time they may “as agency permissible. is separation-of-powers is a violation to time” nor Appeal Group Neither BCCA city impermissibly delegates it because to, City has directed us and we have lawmaking power. core The council’s found, constitu- addressing cases Carlton, explained which cites Trimmier tionality city’s of a home-rule ordinance give effect to the intention that courts will expressly incorporates agency adopts act Legislature where an rules, exist, they they may as along act with amendments there another Therefore, we amended the future.11 to, subsequent will and the amendments analogous look to law to the crux case 572, 1070, 116 296 1074 apply. S.W. issue, city dele- current whether (1927). This codified: principle been gate lawmaking authority its to a state otherwise, a expressly provided “Unless may.12 it agency, conclude that any portion a statute reference Co., reenactments, revisions, Light v. Texas all Kousal Power applies rule related, distinguish- but statute or rule.” we addressed or amendments delegation power. parties Id. at 742. is cited both lawful But 11. Ex Parte Elliott distinguished by appeals. 973 the court the court never reached issue of whether 737; 737, (Tex. laws, adoption incorporation of future 1998, refd). pet. App.-Austin It neither rules, have or amendments thereto would directly controlling nor does address agree We therefore been constitutional. Elliott, a relevant issue here. In Ex Parte appeals with the court of Ex Parte Elliott waste,” defined state statute "hazardous inapposite. allegedly prohibit- "essential element” of conduct, or listed ed as "solid waste identified Melton, we held an 12. In Weslaco v. by the administrator of as a hazardous waste "adopts ordinance valid word for word the United States Environmental Protection requir- form of tire milk ordinance short Dispos- Agency Solid Waste under the federal ing suggested pasteurization as and recom- Act, by the Resource Conserva- al as amended United Public Health mended States Recovery Act of as amended.” tion and Although Service.” S.W.2d at Elliott, The Ex Parte 973 S.W.2d at 738-39. nondelegation princi- Court did not discuss Appeals held the state Third Court of raised, they implic- ples as were not the Court adopted by reference the federal act statute delegation itly accepted of core thereunder, regulations promulgated and the lawmaking power council to an from the the statute which were in effect on date enacted, agency. was and the statute not an un- was able, issue. 142 Tex. at 285. No present such limitation is here. (1944). Instead, delegated the the statute recognizes governmental fixing regu- function of ability to enact an long ordinance so itas lating utility municipali- rates to home-rule is not inconsistent with the Act or TCEQ explained, ties. Id. The Court “[W]hen so rules or orders. Tex. Health & it delegated, by must be exercised the 382.113. agency or municipality to in- whom Similarly, both cases BCCA Appeal trusted for the of people, benefit its and Group relies on for proposition the a they delegate cannot it to anybody else.” city may not delegate the transaction of Similarly, Hill, in City Galveston v. of city distinguishable. business are In De- City’s we held that the contract awith Soto Development, Wildwood Inc. v. private entity “must involve the redele- Lewisville, the of Appeals Second Court of gation governmental of or legislative func- concluded there no was evidence that the trustees,” [city] tions of the of board which city attorney had been by authorized the delegated was the task of managing and city council to city, act bind the and thus controlling the Galveston Wharves. 519 city the attorney’s pre-suit statements in a 103, (Tex.1975). 104-05 S.W.2d The stat- letter to developer binding were not on mandated, ute in Hill “If city oper- 814, city. 184 S.W.3d 826 (Tex.App. ating a under Home Rule Charter and said 2006, -Fort pet.). Worth no In Whittington provisions Charter requiring contains Austin, v. City case, an eminent domain of improvements facilities man- and the intent to condemn the land was ex aged trustees, controlled board of pressly nondelegable by legislative and provisions then the of such Charter shall constitutional limitations. 174 S.W.3d followed.” Id. at 104. The denied) 900 (Tex.App.-Austin pet. in Galveston included its charter (relying Antonio, on Burch v. City San Wharves, “[t]he Galveston and the income (Tex.1975), which therefrom, and revenue shall be man- fully held that “home rule given cities are not aged, controlled, and operated maintained to' authority delegate power Thus, Board Trustees.” ac- eminent domain agencies” to subordinate cording to the statute and Galveston in view limitations of the specific Charter, setting of rates and determi- civil grant statutes that and define the policies, nation of being governmental city’s power of eminent domain and re functions, were for the reserved board quire city’s governing body itself trustees delegated and could not be away. condemn property). DeSoto Wildwood Kousal, Id. at 105. In Legislature Development deals with an individual at specifically delegated governmental func- tempting to city ap without city bind municipalities, tion to disallowing a redele- proval, Whittington express involves gation from municipality anyone constitutional statutory limitations. Kousal, Hill, else. In 179 S.W.2d at 285. Inc, DeSoto Development, Wildwood Legislature prescribed that the func- 826; S.W.3d at Whittington, at 174 S.W.3d performed must be according to a city Neither ease involves council charter, city’s specifically and the charter delegating authority agency to a state perform mandated who must the function. statutory where no limitation exists.

Hill, cases, In 104-05. both specific provided limitations A through municipality stat- home-rule does city ute or prevented charter delega- not derive its to enact power ordinances id.; Kousal, tion at issue. See from Legislature. 179 S.W.2d Dali. March’s & 21-163, 21-161, 21-162, Ass’n, 490- those sections 852 S.W.2d at Concessionaire’s art, 21-166, XI, 5(a). therefore preempted In 91; see Tex. Const. Accordingly, reverse we words, not dele unenforceable. Legislature does other cities; judgment part appeals’ a home- court legislative power gate declaratory Con relief judgment render rule looks R. power opinion. on its only for stitution limitations consistent with App. 60.2(c). Regarding incorpo- Dali. March’s enact ordinances. P. Ass’n, 490- found Ordinance Concessionaire’s ration 5(a). XI, Here, 21-164(a), 91; appeals’ see Tex. Const. the court section provisions or constitutional statutory no is affirmed. judgment incorporation of limit the fact, comprehensive Act’s

rules. opinion BOYD JUSTICE filed city to an statutory scheme enact allows dissenting part. the Act “not with ordinance inconsistent” BOYD, dissenting in part. JUSTICE Tex, or rules orders. Health & (b). 382.113(a)(2), The City adopted an ordi- The Houston TCEQ the given au Legislature has problem pollu- air nance to address the Act, thority administer Among other area. tion the Houston necessary or con “powers TCEQ has things, the Ordinance: carry responsibilities.” out its venient (1) facilities that emit prohibits certain Therefore, 382.011(c). when Id. violating from airborne contaminants they currently adopted as rules pollution air control certain “state amended, they may as be exist and laws,” express- which the Ordinance complied the Act’s man with Ordinance they currently ly incorporates “as must not be incon any ordinance date that they may changed and as are TCEQ’s rules and ensured sistent with the (the Incorpo- from time to time” ongo on an consistency be maintained that Provisions); ration Houston, Tex., Code of ing basis. See (2) operat- from the facilities prohibits ORDINANCES, 21-164(a). they ing city limits unless -within When, here, recog as statute registered have city’s authority to enact ordinances nizes (the Registra- registration paid fee authorizing an statute as consistent Provisions); and tion pro agency’s an and orders well as rules (3) offense to makes a criminal violate statute, authorizing mulgated under prohibitions the state these unless agency’s that incorporates that ordinance conduct activi- has authorized they may be they exist and as Provisions). (the ty Prosecution nondelega not violate the amended does tion of the Texas constitution. doctrine ch. Houston, Tex., Code of ORDINANCES (2008). VI, 21-162, 21-164, §§ art. Conclusion

V. Incorporation holds Court Provisions are but appeals erroneously held valid and enforceable The court Registration Provisions and Prosecu- not preempted was the Ordinance For not. the reasons clarity.” We hold that Provisions are with “unmistakable explains, agree I Incor- provisions that the in the Court the Ordinance’s enforcement (f), 21-164(c) enforceable through poration and the Provisions are section Ordi- not, I including Registration Provisions provisions, registration nance’s join parts tion, opinion those the Court’s Legislature. not from the Id. Home- judgment. rule cities “look grants power, but on limitations

My disagreement with the Court’s hold power.” their at any 490-91. And ing Prosecution Provisions are legislative to limit attempt a home-rule unenforceable somewhat but sub subtle city’s power fails it expresses unless stantively significant. The Court renders intent “with clarity.” unmistakable Id. at judgment for BCCA Appeal Group declar ing that the Prosecution Provisions are

completely preempted and unenforceable Home-rule cities have constitutional au in their entirety they permit because thority to 490-91; enact ordinances. ways to act in that are inconsistent see XI, 5. Unlike Const. notes, with state law. But as the Court “a statutes, which are unenforceable when general law and a will federal laws Congress indicate that “in repugnant any held to each if other tended the regulation federal law or other leaving reasonable construction both exclusively occupy field,” BIC Pen words, can effect be reached. other Carter, Corp. (Tex. both will be possible enforced that be 2011), city subject ordinances are not under reasonable construction.” Ante state-law “field preemption.” “The entry Fall, (quoting City Beaumont v. 116 of of state into a legislation field of 314, 202, (1927)). Tex. 291 206 S.W. And does not automatically preempt that field even if the ordinance cannot reasonably be from city regulation; regulation, local an construed to inconsistency, avoid an it is cillary to in' harmony general and with the “only unenforceable to the extent that it is scope purpose enactment, and of the state inconsistent with the statute.” Ante at 8 acceptable.” City Brookside Vill. v. (citing Dall Merck’s & Concessionaire’s Comean, (Tex.1982). 633 S.W.2d Dallas, City Ass’n v. 862 S.W.2d Thus, that the Legislature passed has stat (Tex.1993)). view, my the Prosecu agencies utes and state have enacted rules tion reasonably Provisions can be con addressing pollution air does not automati only strued as permitting prosecutions cally prohibit City from adopting ordi that are consistent with state law. toAnd same, nances that do the even if Legis they the extent construed, cannot be so lature intended to “occupy that field” of precedents our require us to invalidate law.

them to that extent. Because the city But subject ordinances are to “con general Court renders declaration that flict preemption.” The Texas Constitution the Prosecution completely Provisions are expressly prohibits “any provi [ordinance] unenforceable, preempted respect I sion inconsistent with the Constitution of fully from portion dissent State, or of general laws enacted opinion. Court’s Legislature 'of this State.” XI, § Const. If 5. an ordinance “at I. tempts to regulate .subject matter [that]

Preemption Standards a state preempts,” statute the ordinance is city, As a home-rule unenforceable, of Houston but only.“to the extent it possesses power “the full government.” self conflicts with the state statute.” In re Sanchez, Da ll Merck’s & Concessionaire’s (Tex.2002). 81 S.W.3d Ass’n, 852 at 490. It derives that subject laws, On the of air-pollution power directly from the Texas Constitu expressly provided has oth- only to that extent and enforce an ordinance unenforceable

cities can “enact and remain enforceable. pollu of air erwise the control and abatement tion,” is “not long so as the ordinance or agency state statutes inconsistent” with Requirements A. The State-Law rules. Tex. Health The state statutes authorize both 382.113(a)(2). local authorities to enforce the state’s whether the extent We must decide through laws administrative air-pollution the Prosecution Provisions are which suits, prosecu- civil penalties, with state laws or rules that “inconsistent” city air-pollution A in which an tions. of air the “control and abatement address occurring or is violation occurred begin pre- Id. pollution.” We seeking against suit the violator file a civil valid, sumption that the Ordinance is relief, penalties, civil both. injunctive may only it inconsistent with a state find 7.351(a). city’s WateR respective provisions if

law rule body first governing adopt a resolu- “any other susceptible reasonable suit, authorizing and the suit must Beaumont, 291 construction.” on the Texas Commission Environ- include cannot find inconsis- S.W. at We Quality (TCEQ) “necessary as a mental tency “fact or condition” exists that §§ indispensable party.” 7.352- municipality’s pas- “would authorize .353. sage Broolcside the ordinance.” diligently If a has not filed or is not Vill, if the at 792-93. Even suit, prosecuting TCEQ may civil regulates subject matter that Ordinance penalties against the assess administrative preempts, state law we can invalidate the 7.051(a)(2). If violator. only to extent it is Ordinance penalty, an administrative the vio- assesses Sanchez, inconsistent with the state law. penalty payment precludes lator’s at 796. penalty or for the any other civil criminal II. § TCEQ Id. 7.068. The same violation. attorney general ask the to file a also Enforceability of the Prosecution relief, seeking injunctive pen- civil suit civil Provisions alties, both, TCEQ must refer and that The Court holds the Prosecution attorney general to the if the the matter with the “statu- Provisions are inconsistent violator received more administra- two tory requirements for criminal enforce- penalties air-pollution tive for violations Air Act ment” under the Texas Clean and the preceding the same site within two (the re- the Texas Water Code state-law (b)(6). 7.105(a), § years. Id. Comparing Ante at quirements). enforcement, Provisions, criminal Regarding I do statutes to the Prosecution officer, provides any peace includ- agree the laws are inconsistent law ing working agencies, may for state Provisions can be those because the Prosecution to an appropriate prose- a violation reasonably permit refer construed prosecution. for criminal cuting attorney pursue prosecutions when 7.203(d); § §id. Id. see also 7.193. How- doing so is consistent with the state-law event, ever, referring violation to a local requirements. in before And give prosecutor, peace officer must reasonably construe extent we could alleged violation to written notice the Prosecution Provisions be consistent 7.203(b). § TCEQ. No later than they are Id. requirements, with the state-law notice, forty-five days receiving after an affirmative prosecution defense to TCEQ must determine whether a vio- complies conduct with a state exists, so, lation and “whether statute, rule, adminis- or order that approves or adequately trative or civil remedies would 21-164(d). § authorizes the conduct. Id. appropriately alleged and address the en- requires The Ordinance “health 7.203(c). vironmental violation.” Id. officer” to “conduct an program effective for the pollution abatement air within If the determines that a violation city,” that program must require exists and that pen- administrative or civil “[c]ooperat[ion] officers, with ... state ... alties would adequately appropriately offices, departments, agencies in violation, address the and then notifies the filing prosecution of legal peace actions officer of those determinations with- civil and criminal enforcement pollu- of air forty-five days, prosecutor no pur- can laws, air quality rules[,] charges against sue criminal standards the violator. 7.203(c)-(d). 21-146(3). regulations.” Id. But if My time- ly peace TCEQ’s disagreement notifies the officer of the -with the Court’s decision in determination administrative or civil this case centers on its construction of penalties inadequate Provisions, or inappropriate, these particularly on the issue or if provide fails to notice of of they reasonably whether can be con- the required within for- determination strued to be consistent with the state-law ty-five-day period, prosecuting “the attor- requirements.

ney may proceed prose- with the criminal alleged

cution violation.” C. Reasonable Construction 7.203(d). The Court identifies ways numerous require- The Court reads these state-law which it believes the Prosecution Provi- ments to “mandate[] administrative and sions are inconsistent with the state-law civil remedies criminal prosecutions] [over effort, requirements. It no makes howev- possible,” whenever ante at give and to er, to determine “any whether other rea- sole discretion to “if decide sonable construction” of the Prosecution appropriate,” other remedies are ante at Provisions alleged would eliminate the in- general, 17. In purposes least require- consistencies with the state-law preemption analysis, I have no issue effect,” ments and thus reading “leav[e] with the Court’s both these state-law precedent our requirements. requires. City own of Beaumont, Properly S.W. 206. con- B. The Prosecution Provisions strued, the Prosecution Provisions do not “require,” “allow,” or many “authorize” of

The Prosecution Provisions make it “un- complains. the actions of which Court any person operate lawful for or cause even Provisions And could be con- operated any facility to be that not does require comply strued authorize those requirements” with the of ac- tions, they pollution reasonably air can state’s laws. construed to Houston, Tex., VI, permit not § Code of ORdinances ch. art 21- or authorize the actions when 164(c). Any doing such is a so conduct criminal would be inconsistent with the punishable” requirements. ig- violation that “shall be state-law The Court by a fine, each day violating precedent and nores our that requires conduct own us continues “shall separate constitute a of- to enforce both requirements the state-law 21-164(e)-(f). However, § fense.” Id. it and the “if Prosecution Provisions that be prosecution state criminal when any reasonable construc- authorizes possible under it. law forbids tion.” prosecution as 2. Criminal 1.Mandatory enforcement criminal “only” remedy Court Prosecution The asserts that the The Court asserts that the Ordinance any violation ... “treat[ Provisions ] only prosecution for criminal “provides matter,” 12, suggesting ante at criminal involvement,” and con- without they automatically require that criminal it is therefore inconsistent cludes every violation. The Court prosecution preference for other remedies state law’s me, say, does is not clear to administrative pen- such as civil suits and Provisions of Prosecution which Again, 14. fails alties. Ante at the Court imposes this Court effect. The believes sup- specify language it believes identify I is the only possible language can of the ports this construction Prosecution says shall be unlawful” “[i]t Provision Provisions, I To the can find none. facility comply operate that does contrary, the Prosecution Provisions ex- requirements. Hous- with state-law addressing pressly recognize methods for ch. TON,Tex., art of Ordinances Code prosecution. other than criminal violations 21-164(c) VI, (2008). This is not sub- Tex., ch. Houston, Code Ordinanoes different, however, stantively from the 21-146(3) VI, § (requiring coopera- art says person commits state statute “[a] ageneies in state and other if the person an offense” violates the filing legal actions for prosecution air-pollution state’s laws. Water 21-146(5) (re- enforcement); “civil” id. §§ Both the Prosecution 7.177-.183. encourage quiring city program to “volun- declare Provisions and state statute tary cooperation preservation in the illegal, certain conduct is but neither regulation purity of the at- outdoor every vio- requires prosecution criminal mosphere”); (providing id. lation. other appli- Ordinance is “cumulative all pros- permits statute criminal regulations”). Nothing cable laws and ecution when the determines pro- the text of the Prosecution Provisions penalties or civil that administrative prosecution that criminal is the vides or the inadequate inappropriate, violation, remedy light “only” for a forty- fails to make determination within requirements pro- Ordinance’s 7.203(e)-(d). light days. five remedies, recognizing visions non-criminal requirement the Ordinance’s con- reasonably can Provisions City’s air-pollution program abatement other than strued authorize remedies “dutfy]” cooperate “shall include” prosecutions. criminal officials and state TCEQ’s Bypassing discretion- prosecution” “filing and ary role charges, Houston, Tex., Ordi- 21-146(3) VI, (2008), § that the Prosecution The Court asserts ch. art nances statutory reasonably bypass TCEQ’s the Provisions can Provisions the Prosecution permit prosecutions appropriate discretion to determine the only be to construed the remedy Specifically, for violation. with the state-law re- that are consistent “author- Nothing in Prosecution Court asserts the Provisions quirements. the requir- prosecution prosecution criminal criminal without mandates Provisions ize TCEQ, requiring to ing less or the without every requires violation—much notice lations, TCEQ forty-five days they have give to do not TCEQ determine whether a violation has oc- authority exclusive to ap- “determine the curred, regard and without to TCEQ’s propriate in case.” Ante remedy every at to discretion determine whether adminis- 15. expressly law State authorizes cities or civil penalties adequately trative would to “enact and enforce an ordinance for the appropriately and address the situation.” control and abatement of pollution,” air so ‘ Ante at 27. Again, the Court fails to long as the ordinance is “not inconsistent” identify any language that authorizes the with state agency statutes or rules. pursue to prosecution a criminal Safety 382.113(a)(2). Health violation of any state law under of these notes, And as the Court itself state law circumstances. Because the Prosecution expressly permits city to to choose file a not expressly specifical- Provisions do against civil suit seeking injunc- violator ly prohibit prosecutions, such the Court relief, tive penalties, both, civil or construes the Provisions to allow them. 7.351(a), expressly pro- Wateb Ante 29. at from assessing hibits adminis- just But as the Prosecution Provisions penalties trative long city as as the not expressly specifically prohibit do diligently pursuing suit. prosecutions, they such expressly do not 7.051(a)(2). Although city specifically require permit or them name the as a “necessary indis- either. light the Provisions’ silence id. pensable party,” 7.353, TCEQ’s issue, on the it is equally as reasonable authority to proper choose the relief construe the permit prosecu- Provisions greater suit is no city than that of the who tions after the TCEQ has received event, filed the suit. in any And these statutory notice and either failed to re- provisions prevent from deter- spond forty-five days timely within con- mining “an administrative or civil reme- cluded that penalties administrative or civil dy penalty even no at all—to be the adequate or appropriate. would —or ante appropriate remedy,” light at when a And require- the Ordinance’s ment that the enforcement chosen to file a civil program suit. duty of cooperating include with state uniformity 5. “Statewide enforce- agencies in prosecutions, ment”

would the more reasonable construc- tion. The Court asserts that the Prosecution TCEQ’s legislative Provisions undermine intent authority exclusive de- remedy termine “favoring consistency statewide in enforce- ment, which relies on TCEQ discretion The Court asserts that the Prosecution appropriate select an enforcement mecha- Provisions are inconsistent state- nism each violation.” Ante 15. It requirements law because state law ex- “legisla- unclear where Court finds this presses a “clear intent to have the ante goal of uniformity,” tive statewide the appropriate remedy determine ev- .in Court fails cite Health ery case.” Ante at 15. point This is one Code, Code, Water I disagree on which con- Court’s statutory provision support its conclu- requirements. struction the state-law sion that Although grant favored “state- TCEQ great state laws in dealing air-pollution uniformity discretion with vio- wide of in the enforcement” enactment, acceptable.” City Ante at 17.1 the state is suggests. manner the Court Vill., 796; at see Brookside 633 S.W.2d of Group’s argu- Accepting Appeal BCCA City Responsible v. also Richardson of are Prosecution Provisions ments that the Tex., 17, 19 Dog Owners 794 S.W.2d of by “comprehensive struc- preempted a (Tex.1990) (“[T]he legis- fact that the mere 7, ture,” “comprehensive a ante at addressing a a sub- lature enacted law 31, at the Court regime,” enforcement ante subject not matter ject does mean that the Legislature “the has enact- concludes that there is completely preempted. is When regulatory comprehensive ed a and flexible city a no conflict between a state law and regime investigation for ... and consistent void.”). ordinance, is not the ordinance air-pollution of enforcement the state’s harmony a “Ancillary to and with” stat- 19, laws,” agencies at have ante that state simply ute “not inconsistent with” means im- authority to and discretion” “statewide Compare Ancillary, statute. such rules, Blace’s plement statutes and their ante (10th 2009) (“Supple- ed. Law DICTIONARY extensively regu- “plants and that are subordinate.”), mentary; Harmony, agencies under the lated” the state accord; conformity.”), (“Agreement or id. rules, at 6. if all of statutes and ante Even Inconsistent, (“Lacking agree- with id. true, provide at best a that were would compatible among parts; ment not concluding that the Prosecution basis claim.”). fact or another preempted because the Provisions are analysis preemption The focus of expressed an intent to “oc- our Legislature has a air-pollution Legislature of enforce- thus not on whether the cupy the field” had uniformity of city subject goal are not of enforce ment. But ordinances “statewide ment,” but on the Prosecution preemption” on state whether to such “field based with, op entry of the state into a field Provisions are inconsistent laws. “The with, automatically posed ancillary harmony to and in legislation ... does state law. To the extent that the Prosecu city regulation; from preempt field (and ancillary to in harmo- tion Provisions are inconsistent with regulation, local with) thus, ancillary to or general scope purpose harmonious ny with the Melton, "nothing upheld in the quotes City the ordinance because 1. The Court Weslaco (1957), ordi- statute ... a conflict" create[d] 19-20, nance, support its assertion that Ordinance id. at and tire ordinance did statutes,” Legislature's ‘unifor- “thwarts the intent that id. at "not run counter to State ” throughout mity prevail the state.’ shall field-pre- 22. confirms that Weslaco However, City pro- Ante at 14. Weslaco emption permit state statute to does not support In vides no for the Court’s assertion. unenforceable; city in- render a Weslaco, the Court determined that the stead, expresses even an intent if the statute Legislature uniform intended establish field, preempt en- ordinance is labeling grades standards for of milk because except forceable to the extent it conflicts with "the statute itself the intention demonstrate^] the statute. part provide of the on the that, a mini- Weslaco establishes grades specifica- milk and establish mum, provide statutory Court must ba- labeling tions as well as therefor finding "legislative goal of statewide sis for uniformity prevail same the end that shall authority.” See 308 S.W.2d at 19. And even State,” throughout intent and ”[t]hat so, legislative if Court able to do such to the emer- also revealed reference [was] Provi- intent does not render Prosecution gency of the Act.” 308 S.W.2d at 19. clause 19-20, sions unenforceable. id. at See language, the Court concluded Based on that field, The Prosecution Provisions are unenforceable ... so "pre-empted that the statute they with state law. grading labeling inconsistent of milk is far as the Sanchez, re 81 S.W.3d at 796. But the Court nevertheless concerned.” Id.

31 law, they state are See must unenforceable. construe to be consistent with state Vill., City if any 796. S.W.2d laws “reasonable construction leav of Brookside But if the are ancil ing reached,” Prosecution both effect Provisions can- Ball. law, lary harmony they Ass’n, Merck’s & Concessionaire’s if are enforceable-even (as at 491. I do not the Court purportedly uniformity” desires “statewide asserts) “suggest[ con ] [the Court’s] comprehensive “a enforcement re under struction of the Ordinance is unreason gime.” See id. able.” Ante at preemption 17. Under our precedent, question is not whether City’s compli-

6. “Reliance” on the construction that leads to an inconsistency ance unreasonable, but whether a construc Finally, Court asserts can- we tion that an inconsistency avoids is reason not reasonably construe the Prosecution For explained, able. the reasons I con permit only prosecu- Provisions to those clude that it is reasonable to construe tions that are consistent with the state-law Prosecution only permitting Provisions as requirements rely because we “cannot on prosecutions that are consistent City to decline to exercise its more requirements. with the state-law stringent authority enforcement under Ordinance.” Ante at as- 17. Court Inconsistency D. The “Extent” serts that “construction that relies Even there were some sense in which upon city opt out the enforcement we could not reasonably construe authority granted it under permit Prosecution only Provisions hardly Ante at reasonable.” prosecutions those that are consistent with These assertions demonstrate that requirements, state-law the Prosecu- Court misunderstands our task in deter- Provisions would whether, which, completely mining and the extent to As unenforceable. the Court itself ac- the Prosecution Provisions are inconsistent knowledges, even if cannot the Ordinance requirements. with the state-law By rea- reasonably be construed avoid an incon- sonably construing the Provisions to au- sistency, it “only is unenforceable prosecutions thorize only compliance extent that it is inconsistent with the Act law, with state confirm we would that the or the 31(citing Water Code.” Ante at grant City any Ordinance does not Ass’n, Dali. Merck’s & Concessionaire’s stringent authority.” “more enforcement 490-91). 852 S.W.2d at naively Ante at 17. hope We need on rely City to do less than the Prose- The Court concludes that the Ordinance allow, cution Provisions because under statutory is “inconsistent with the require construction, reasonable the Prosecutions action[s],” ments criminal enforcement Provisions allow the to do City ante at thus judgment “render[s] which is with the consistent state-law re- Appeal Group,” declaring BCCA quirements. pro Ordinance’s criminal enforcement Ultimately, unenforceable, the Court’s conclusion that visions ante at 25. Un the Prosecution are inconsistent holding, long Provisions der Court’s no with state law and are therefore unen er has ordinance that makes a violation disregards prec forceable preemption prosecute our a criminal cannot offense and begin presump edent. We must violators under the ordinance under valid, tion that the ordinance is any circumstances. Yet state ex law Vill., Brookside pressly we authorizes the “enact and to an ordinance permits dent us invalidate for the control and enforce ordinance it conflicts the long “only so as the to the extent pollution,” of abatement air 796; Sanchez, 81 at state statute.” S.W.3d is “not inconsistent” with state Concessionaire’s Health & see Dali. Merch’s & agency rules. Tex. statutes Ass’n, 382.113(a)(2). To extent any part If 852 at 494. the S.W.2d permit to criminal- City is inconsis the Provisions of the Prosecution Provisions the ly prosecute it is a violator after requirements, tent state-law timely it con deter- only proper “to the extent received notice and unenforceable Sanchez, reme- and civil state 81 mined that flicts with the statute.” administrative 796; inadequate inappropriate, see Con be at Dall Merch’s & dies would S.W.3d Ass’n, state 852 at 494. the Provisions are consistent with cessionaire’s S.W.2d Enforcing only to the law. an ordinance City or The Court is that the concerned consistency of not “rewrite” extent does may attempt apply prosecutors its local ordinance, Court contends. Prosecution Provisions when state law Instead, merely it at limits Ante 32. prohibit doing light so. would legally permissi- of effect the ordinance carefully provisions, I state crafted laws’ applications applications, ble even other sympathetic am those concerns. with state law and would inconsistent provides that its “remedies state statute Energy Indus. therefore invalid. Tex. cumulative,” are Tex. WateR Energy Hous. CenterPoint Consumers 7.004, “exempt person that it does LLC, (Tex.2010). Elec., 324 103 S.W.3d being subject to complying from with or Finally, enforcing 7.005, an ordinance law,” that an other id. offense of consistency properly ac the extent punishable another that is “also under law pow knowledges constitutional law,” prosecuted id. under either presumes city ers as a home-rule agree I with the Court that 7.200. authority by its en acted within such “other law” unenforceable precedents our acting a ordinance-as valid inconsistent with the state-law extent required Fort have decades. 16; requirements. Ante see at Const. of Worth, (“[W]e 618 83 at shall XI, § S.W.2d agree I therefore presume that in the enactment prosecutors its local cannot en- city passed commission void measure the Provisions in man- force the Prosecution contrary, presump measure. On City’s authority ner that would exceed city tion is that intended authorities pre- But state law. under our violate ordinance.”); adopt see In re a valid also presume” emption shall not precedent, “we Sanchez, 796; City 81 Brook-side S.W.3d out- City passed that the a void ordinance ll., 792-93; City Vi 633 S.W.2d authority. City scope its side Weslaco, (“The validity at 21 Co., 308 Fort Worth v. Gulf Ref. presumed....”). (1935) an ordinance is Under (rejecting an preemption precedent, uphold our we the ordi- interpretation that would render the Prosecution Provisions the extent scope city’s outside the “au- nance they consistent with law. thority our statutes and Constitu- under presuming tion” acted and instead III. authority by adopting within its a valid ordinance). Conclusion holding judgment invalidating join I Court’s Prosecution

Instead Incorporation entirety, prece- our own that the Ordinance’s Provi- Provisions their Registration sions are enforceable and But, for

Provisions are not. the reasons join I

explained, cannot the Court’s hold-

ing judgment the Prosecution

Provisions are inconsistent with state laws completely preempted

and therefore entirety, I

unenforceable their respectfully

therefore in part. dissent GP,

CENTERPOINT BUILDERS LLC Centerpoint Builders, Ltd.,

Petitioners,

TRUSSWAY, LTD., Respondent

No. 14-0650

Supreme Court of Texas.

Argued November

OPINION DELIVERED: June

Case Details

Case Name: Bcca Appeal Group, Inc. v. City of Houston, Texas

Court Name: Texas Supreme Court

Date Published: Apr 29, 2016

Citation: 496 S.W.3d 1

Docket Number: NO. 13-0768

Court Abbreviation: Tex.