Chapter 2: Local Enforcement Options                     Order Book

Cities and counties wanting to stop illegal dumping and other forms of pollution have several effective tools they can use. In fact, use of these tools has become so common throughout much of Texas that failure to apply them in a community reflects either (1) happiness with the cleanliness of the community, (2) simple ignorance among local officials and staff, (3) lack of political will, or, (4) payoffs from local polluters (i.e., campaign contributions). Unless your community is very unusual, the first of these possibilities is not the case. One of the purposes of this book is to solve the second by providing accurate information. Local voters are certainly capable of solving the third. The fourth option is difficult to address; elected officials who sell their support to local polluters in exchange for "jobs" are a real problem in parts of Texas. The fact is that in today’s Texas, a community can be as clean or as dirty as the folks who live there prefer. Wimberley or a pig sty. It’s your choice, with each being deeply related to economic prosperity and property values. This book mostly addresses using Texas criminal law locally to stop illegal dumping and other forms of pollution, but the criminal law is only one of the tools local communities can use.

Tool #1: Municipal Code Enforcement
This is the most commonly used approach inside cities in the state. Virtually all of Texas 1,210 cities have some set of municipal ordinances. These often cover high weeds, stagnant water, sewage, general filth, refuse on a lot and other pollutants described in Texas Health & Safety Code Chapter 342 Local Regulation of Sanitation. THSC Sec. 342.004, for instance, states that "(t)he governing body of a municipality may require the owner of a lot in the municipality to keep the lot free from weeds, rubbish, brush, and other objectionable, unsightly, or unsanitary matter." Texas cities establish their particular municipal ordinances following rules set out in Texas law appropriate for their class of local government. Most Texas cities have inspection and enforcement staff that sees to it that these municipal codes are followed. In a few major cities this staff may number in the hundreds. In other smaller communities, these duties may fall to one person. Municipal code enforcement is civil enforcement, which means that the property owner or resident who is the target of enforcement action is protected by a great deal of process. Cities provide the property owner notice of the violation, give reasonable time to abate the problem, follow with more letters, then more notice, and a possible appearance before a municipal judge in the most non-responsive situations. Cities may impose civil penalties of up to $500 (or to $2,000 in violations affecting public health), and often have trouble collecting the penalties imposed. The point is not to punish the property holder, but to bring the weight of the city onto his shoulders in a systematic manner to effect cleanup of the property. Each day that a problem persists may be treated as a separate offense. The only jail time that might be imposed is the occasional contempt of court finding in rare instances, since, after all, this is civil enforcement aiming at cleanup rather than punishment. Several recurring problems present themselves in this enforcement process.

(1) Uneven enforcement. Most communities have simply learned to tolerate some municipal code violations in some areas. For instance, while the "official policy" of a city is to enforce its codes evenly throughout the community, this rarely happens. Poor parts of town often receive low levels of code enforcement, while the wealthier neighborhoods virtually police themselves. This "two tier" enforcement approach may exist because code enforcement officers realize that in many cases there simply is no money in poor neighborhoods for cleanup and go easy on poor citizens. Or staffing problems – and political pressure – keep the available responders busy in the wealthier neighborhoods. Or lax enforcement may arise for more sinister reasons, including "lay off" political pressure on the officers (i.e., the owner of a problem property may himself live on the prosperous side of the tracks and be pals with the mayor, the ultimate boss of the code enforcement officers, etc.). Non-uniform enforcement is a serious policy issue within the code enforcement community and one of great concern to officers themselves.

(2) Mentally Ill Citizens. In some cases, residents of chronic problem properties may be mentally ill. Should such illness rise to the point of violence and spill out into the street, local police may get involved. State law now requires police to receive two days of training in "crisis intervention and deescalation techniques to facilitate interactions with persons with mental handicaps," as the Texas Commission on Law Enforcement Officer Standards and Education puts it. But when mental disarray peacefully spills out of one’s mind and fills the house, and then spills out into the front yard to the point that the neighbors call the city, the "first responder" is not a trained police officer, but is rather a code enforcement officer. Under current Texas law, code enforcement officers are not required to have any training in dealing with "persons with mental handicaps." Since this training has not yet been mandated by the State Legislature, few cities have provided training opportunities for their officers. At the time of this writing, at least three cities (Eagle Pass, El Paso and Laredo) have announced plans to do so. But the vast majority of code enforcement officers are called on to interact daily with the public without formal training in recognizing and dealing with the effects of mental illness or mental "handicap."

(3) Criminals. In some situations, cities are trying to use code enforcement – which is civil enforcement – to deal with environmental criminals, who are polluting for money. This won’t work. In dealing with criminals, one needs police, guns and handcuffs. However, in most Texas communities, police remain unaware that there are criminal laws that they can use to respond locally to illegal dumping and other forms of pollution. Code enforcement and police management need to devise policies in which police can immediately supplement code enforcement officers in dealing with clearly criminal cases. By working together code enforcement and police management can assure that local enforcement is most effective.

(4) Volume. In many cities there are simply so many complaints on dilapidated houses, illegal dumping, high weeds and other code violations that the response system reached gridlock. Each case requires a great deal of documentation, notice, and general communication with the owner or resident. During this process the property may remain in a poor condition, which generates additional complaint calls reporting the problem and calls to elected officials wondering why "nothing is happening." Actually, behind the scenes and out of the view of the public plenty is going on: a process that includes providing maximum procedural protection to the property owner, which is absolutely the right thing to do.

In spite of these issues, the greatest amount of environmental enforcement by far in Texas comes from the municipal code enforcement officers, and there are always more complaints made about violations than there are officers to respond.

Tool #2: TCEQ Administrative Enforcement
Although this book is about control of illegal dumping (and other forms of pollution) by cities and counties, the Texas Commission on Environmental Quality plays a crucial role. Through their sixteen field offices, the TCEQ performs administrative enforcement of Texas environmental statutes and the rules, permits and orders that flow from these statutes. A little later we’ll see that cities and counties also have enforcement powers, through civil suits and related procedures, of those same statutes, rules, permits, and orders. This shared enforcement power is one that remains unknown by most local governments, and known but intentionally ignored by a few others. But the TCEQ alone has the power to perform administrative enforcement. In doing so the agency follows the procedures set forth in Texas Water Code Section 7.051 through Section 7.075 ("Subchapter C" of that chapter). Administrative inspectors and enforcement officers spend enormous amounts of time dealing with air, water and land pollution. However, the TCEQ administrative enforcement staff does NOT have the primary responsibility of assuring that your city or county is clean. This is the responsibility of local government and voters. TCEQ leads the process of creating environmental rules, as directed by the statutes passed by the State Legislature, and making periodic adjustment to these rules. TCEQ owns the process, but the rules themselves belong to the people of the state. Because many of these rules are complex and subject to interpretation, don’t be surprised if you get "more than one answer" when calling the TCEQ to ask what a particular rule requires. Moreover, not all sixteen regions interpret the rules in the same way. You will also find that the regions generally will not provide a letter of interpretation as to the meaning of a particular rule, and this is appropriate. If you want to know what a particular rule requires, and it is not clear from reading and discussions with TCEQ regional staff don’t help you see the light, then seek legal help from an attorney competent in state administrative law. Like municipal code enforcement officers, TCEQ administrative enforcement officers are very busy, always working more complaints than time allows. Additionally, TCEQ regional administrative enforcement officers all work under tight travel budgets, which may preclude them investigating or responding to some violations. In fact, where a city or county has shown itself to be competent in local enforcement of pollution laws, the TCEQ is likely to refer the case to the local agency.

Finally, be aware that some local governments use the TCEQ to divert heat from themselves, through laziness or hoping to dodge political heat. This is totally unscrupulous. For example, one North Texas county criminal environmental enforcement officer received a complaint that the agricultural education program of a local ISD had let animal manure accumulate behind a barn to such a degree that the pile washed into a nearby creek during a storm. This could easily have been handled locally as a nuisance violation, as misdemeanor water pollution or as misdemeanor illegal dumping by the local officer. A "warning citation" could have been issued and a discussion with the ISD could have led to better practices. Instead, the officer’s supervisor wanted to avoid any possible "confrontation" between the county and the ISD that local enforcement might generate, so he directed the officer to refer this matter to the regional TCEQ. In my view, this was absolutely inappropriate since the issue could have been handled locally. The ISD would have been better served, as would the people of the county and the state, if the local officer had handled the problem. Instead, the TCEQ had to spend administrative enforcement time and money and the ISD now has a black eye with the state for low level polluting. Laziness or system manipulation (i.e., political cowardliness) by the county? In this instance, probably a little of both, but the county’s hiding behind the skirt of the TCEQ certainly did not help the ISD. The role of the TCEQ is NOT to be the agency where cities or counties refer cases that they are unwilling or too lazy to handle. Keeping our communities clean is our responsibility, not that of a state agency located in a distant city. That having been said, many communities find the TCEQ to be very helpful in resolving local pollution issues too technically complicated for local government, and these officers are clearly helpful in the overall enforcement process. But we need to stop using the TCEQ as an excuse for not acting locally to protect our communities.

Tool #3: Criminal Law Enforcement
Texas has a great set of criminal laws designed to stop local pollution. However, this is one set of laws that some local police agencies are not really sure they want to enforce.

Like most other Texas criminal laws, these are clearly to be enforced by city police and county deputies, with the crimes prosecuted by local district and county attorneys, with trials (if necessary) before local juries. Many communities, big and small, across the state are making special efforts to learn and apply these specialized criminal laws. Some communities have even established specialized police, sheriff deputies, fire marshals and constables to specifically enforce these laws (often funded by grants from the TCEQ and the regional planning commission), with other peace officers helping as their training allows. The TCEQ, with its approximately 3,000 employees focuses on administrative enforcement (see previous discussion). However, about a dozen employees at TCEQ, making up the Special Investigations Unit, focus on solving environmental crimes. These employees are highly specialized and very good at their jobs; however, they are not sworn peace officers as far as the state is concerned (see Section 2.12 of the Texas Code of Criminal Procedures for a listing of the thirty-four categories of persons who are considered to be peace officers in Texas). When an employee from TCEQ Special Investigations wants to make an arrest, he or she has to first go find a peace officer. Frequently, however, TCEQ Special Investigations folks work with Texas Parks & Wildlife specialized game wardens, who have full law enforcement powers.

Local police and sheriff deputies have none of the limitations imposed on the TCEQ Special Investigations staff. Locals are free to enforce the primary Texas criminal law just as they do other criminal laws. Unfortunately, however, local peace officers often lack knowledge of these specialized criminal laws. These laws certainly are not studied in the 120 or so police academies in the state (trade schools for law enforcement officers) any more than they are studied in the state’s law schools (trade schools for county and district attorneys). In both cases, among police and prosecutors, these laws have to be learned through advanced training. Fortunately, this is easily accomplished as there are only a few unfamiliar laws to master. We recommend, and this book focuses on, the following: (1) Texas Health & Safety Code Chapters 341 and 343 to handle criminal nuisance pollution; (2) THSC Chapter 365 to handle illegal dumping; and, (3) Texas Water Code Chapter 7 (Subchapter E) to handle specialized material and location dumping (i.e., dumping into and adjacent to water, violations concerning hazardous waste, medical waste, used motor oil, lead acid batteries and other unique items as well as felony and misdemeanor illegal burning). Often a particular incident of pollution violates multiple criminal laws, and the officer has to work his or her way through all the possibilities. We’ll discuss each of these laws as we go along, and copies of all of them are in the Appendix to this book. Local police can enforce criminal violations of these laws and send cases to local prosecutors for settlement or trial. Some communities do a great job in this, and others look the away, but the laws are there for those communities that want to stop local pollution.

Tool #4: Civil Enforcement
Most cities and counties do not realize that they have an enormous tool at their disposal in dealing with polluters: the right to sue them to make them stop. Remembering that the TCEQ handles administrative violations of the environmental statutes and the related rules, orders and permits, the question arises as to what happens if the agency fails in a particular enforcement action. Although it is not frequently done, the TCEQ may request the Texas Attorney General to sue on behalf of the people of the state. TCEQ staffers tell us that asking the AG’s Office to sue is the absolute last resort since the inter-agency coordination process can be time consuming and frustrating. However, should the Attorney General sue a polluter on behalf of the state, the AG will be guided by Texas Water Code Section 7.101 through Section 7.111 (Subchapter D of TWC Chapter 7). None of this is remotely remarkable, with the possible mention that many TCEQ staffers find working with the Attorney General’s Office frustrating.

Now here is the remarkable part: a city or county can also sue a polluter in its jurisdiction for violating any of a series of Texas environmental statutes and for violations of the rules, permits and orders that flow from these statutes.

This right is granted local governments in Texas Water Code Sections 7.351 and 7.352 and has enormous practical consequences. For instance, imagine an old dump inside a city limit that is detracting from the appearance of the city and constitutes "economic pollution" by the effect it has on surrounding property values. Further imagine that the city has tried to cleanup this property through code enforcement, but for some reason this hasn’t worked. Further imagine that the city police department can’t bring criminal charges against the owner for illegal dumping (i.e., maybe the identity of the dumper is in dispute or maybe the dumping was so old as to fall outside the time period following the dumping that the state has to file a misdemeanor [2 years] or a felony [3 years]). TWC Section 7.351 was made for a circumstance such as this. The city can address this dump by filing a civil suit against the property owner for operating an unpermitted landfill. In this case, the exact rule that is being violated is 30 Texas Administrative Code Section 330.15(a), which establishes that operating a landfill without a license is a civil violation. Operating under its TWC Sec. 7.351 powers, the city can sue the violating landowner for up to $25,000 a day. Such a suit will frequently result in the offending party hiring an attorney and a quick settlement, one negotiated aspect of which will be a cleanup of the property. One-half of any civil penalties actually recovered by the city will go to the state, which is a necessary party to each suit. Or, taking a related example, if the identity of the dumper was known but the dumping happened too long ago to criminally prosecute, the city or county where the dumping happened can simply sue the dumper for violating 30 Texas Administrative Code Section 330.15(c): "Except as otherwise authorized by this chapter, a person may not cause, suffer, allow, or permit the dumping or disposal of MSW without the written authorization of the commission. " The same $25,000 a day civil penalty applies.

All the other favorable aspects of civil suits fall to the local government using this tool, including a lower burden of proof to win the case and the absence of a statute of limitations. This is a great way to force cleanup of older polluted properties. Cities and counties seeking additional information on effectively suing environmental polluters – and in obtaining various injunctions and abatement orders along the way – should contact their Council of Governments solid waste coordinator or Assistant County Attorney Clarissa Kay Bauer with the Harris County Attorney’s office for direction. She sues Harris County polluters for a living and has done so for years. Although this approach may be new where you live, it is not new in Texas.

As you can see from this brief discussion, Texas cities and counties have a wide range of tools they can use to stop pollution, if they have the political will to do so. The remainder of this book will focus on one of these tools: local use of state criminal laws to stop polluters.