Code Enforcement
Virtually all of Texas’ 1,210 municipalities have adopted a set of local municipal ordinances aimed at making their communities healthier and more livable. Such a set of ordinances might cover such issues as animal control, building regulations, business regulations, fire prevention and protection, health and sanitation, municipal court operations, personnel, subdivision, taxation, and traffic and vehicles, and other such topics. The enforcement of such ordinances may be described in the local ordinance itself, although many communities follow the processes found in the Texas Local Government Code’s Chapter 54 Enforcement of Municipal Ordinances. Code enforcement is civil enforcement (as opposed to criminal enforcement). Civil penalties – fines – are set, assessed and collected by the city, but nobody goes to jail for a code violation itself (maybe for related contempt of court, but not for the offense itself). The maximum fine for violating a civil ordinance is usually $500 although "a fine or penalty for the violation of a rule, ordinance, or police regulation that governs fire safety, zoning, or public health and sanitation, including dumping of refuse, may not exceed $2,000" [Texas Local Government Code §54.001(b)]. Code enforcement officers, well-trained and certified, are civil enforcement employees of the municipality. 

Under Chapter 54, municipalities may also bring civil actions to enforce their codes, and a civil penalty may run as high as $1,000 per day (or even to $5,000 per day for discharging pollutants into storm sewers owned by the municipality) [§54.007(c)]. Code violators are generally processed through the municipal court system, with the right to appeal to district court if the violator does not like the outcome.

Code enforcement officers, dealing with community health issues as they do, usually have locally codified rights to enter a wide range of places without the support of a search warrant. Code enforcement officers do not enforce state criminal laws. Police do that. Consequently, code enforcement officers may not enforce the criminal provisions of our four favorite criminal environmental laws: Texas Health & Safety Code Chapters 341, 343, and 365 and Texas Water Code Chapter 7. Sometimes, when local codes are not working to solve a particular problem, code enforcement officers are erroneously directed by their management to enforce one or more of these criminal laws at the Class C misdemeanor level by writing tickets, as famously happened several years ago in Dallas in the Herman Nethery case. Fed up with code violation citations not being taken seriously by Nethery, code enforcement officers began issuing Class C misdemeanor tickets for criminal violations of the Texas Health & Safety Code. All of these tickets were subsequently dismissed. Civil employees of the city can’t enforce criminal laws. For that, one needs guns and handcuffs ... and one also needs to be one of the 35 categories of "peace officer" defined in the Texas Code of Criminal Procedures §2.12.

Criminal Environmental Law Enforcement
Texas peace officers are charged with enforcing the criminal law in their jurisdiction, and that body of law certainly includes certain chapters of the Texas Health & Safety Code and the Texas Water Code, Chapter 7. In fact, wherever a criminal violation is defined in Texas statutes, Texas peace officers are charged with its enforcement. This can be a problem in cases where the officer thinks "I only enforce laws in the Texas Penal Code." In fact, officers enforce criminal laws found outside the Penal Code all the time. For instance, the drug laws of Texas, which are certainly enforced by peace officers, are mostly found in the Health & Safety Code (e.g., Chapter 481 Texas Controlled Substances Act; Chapter 482 Simulated Controlled Substances Act; and, Chapter 483 Dangerous Drugs). So, when officers learn that there are a wide range of felonies to be enforced in the Texas Water Code, Chapter 7 and that there are criminal penalties, including major misdemeanors and state jail felonies, associated with Health & Safety 365 (Texas Litter Abatement Act), they are not surprised. In enforcing these criminal environmental laws peace officers follow the same procedures they do in enforcing any other criminal law: affidavits, search warrants, coordinated raids, handcuffs, guns, jail ... the whole nine yards.

Working Together
There is a near-seamless flow between municipal codes and state criminal environmental laws in most instances, and cities have many options for addressing many dumping situations. For example, say that a person dumps a couple of barrels of unidentified waste onto a vacant lot in the city. Depending on local policy and the perceived severity of the situation, there are several ways that the city could respond:

• A local municipal code may prohibit the dumping of waste on a lot in the city and set a fine of up to $2,000 per day for a continuing health-threatening violation, to be heard in the municipal court, with civil enforcement to be provided by the municipal code enforcement officer; and/or,
  
• The city may get nowhere with this approach and decide to seek an injunction to stop further dumping and accumulation of waste and seek civil penalties of up to $1,000 per day for the code violation as allowed by Texas Local Government Code §54.007(c), as applied by the city attorney; and/or,
  
• Perhaps the city may decide to move into the criminal law and charge the dumper with violating Texas Health & Safety Code Chapter 341.013(c) "Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents," to be enforced by the local police, with penalties of $10 to $200 per day for the first conviction, increasing to $10 to $1,000 and/or jail time of up to 30 days per day of violation, with venue being in county court if the enhanced penalties are sought; and/or,
  
• The city may decide to simply have a city police officer charge the dumper with a count of violating Texas Health & Safety Code Chapter 365.012(g)(3) (Texas Litter Abatement Act) at the state jail felony level for each barrel dumped, regardless of the content; and/or,
  
• The city may decide to have the contents of the barrels tested (either incurring the expense on its own or working with the TCEQ’s Special Investigations section to have some of the testing costs covered by the state), discover that the contents are hazardous, and have the local police charge the dumper with two violations of Texas Water Code Chapter 7.162(a)(2) [disposal of hazardous waste], and seek penalties of $1,000 to $50,000 and/or confinement of up to 10 years for each day each of the barrels were on the vacant lot, working through the local district attorney; and/or,
  
• The city may decide to use the civil enforcement powers established in Texas Water Code Sections 7.101 through 7.111 for the violation of Texas Health & Safety Code Chapter 365 (and virtually any other rule or statute relating to illegal dumping and burning) and seek a civil penalty of $50 to $25,000 per day, splitting any proceeds with the state.

There may be other options in state law, but these come to mind. Note that in all cases, there are three important parties: (1) a local officer, code or police, that gets the ball rolling; (2) an attorney working the civil issues and/or an attorney working the criminal side; and, (3) an appropriate civil or criminal court. The important thing to see is that the city has an wide range of responses to virtually any dumping situation. Deciding which road to follow becomes the major issue in all cases.

Role Confusion
Sometimes, a city will combine the "code enforcement" and "criminal law enforcement" roles in the same individual. This is not necessarily a bad idea, but it does take some reflection on the part of the officer and his or her supervisor. He or she will constantly have to be asking the question, "What role am I playing here right now?" Code enforcement officers may well have easier entry to property than law enforcement, who require search warrants or consent. No fair gaining access as a code enforcement officer, seeing the dope on the table, and then suddenly reverting to the role of police officer and arresting everybody. That case gets tossed if the defense attorney has an ounce of sense. Having the right to be somewhere as a code enforcement officer does not imply the power to suddenly transform into a policeman on the scene. Logic would dictate that, following entry as a code enforcement officer and spotting the dope, one withdraws, calls for a search warrant, and then re-enters. But what about situations where withdrawal would result in the evidence of the crime being destroyed, or create an immediate officer safety issue? If one is in the position of carrying dual civil and criminal enforcement responsibilities, the important thing is to discuss this possible role conflict with the local prosecutor and follow his or her lead, such discussions to take place before the street work. After all, the prosecutor is the one that will be explaining to the jury how the officer’s actions were reasonable, and having to counter arguments from the defense that the officer blew the whole deal through role confusion. So the best policy in cases of "dual civil and criminal designation" is to talk up front, and follow the local prosecutor’s policies.

It Ain’t Necessarily So
Finally, please take note of a scary piece of writing in the Texas Health & Safety Code Chapter 343 pertaining to county officials:

A county deputy sheriff shouldn’t think that this gives him or her permission to ignore the need to get a search warrant prior to entering a premise where one thinks a violation of any criminal law might be underway, including Health & Safety Chapter 343. Again, if one is just dying to get inside a premises in the county, but can’t get a search warrant for some reason (I don’t know, such as not being able to convince a judge to sign one), one shouldn’t use this statute to end-run the process. But of you can't live without using this statute to bypass the need to get a search warrant,  at least go talk with the prosecutor. Again, it is the prosecutor who will be faced with explaining the officer’s behavior to the jury, and possibly see the case dismissed because an a law enforcement officer decided to follow this particular statute in a criminal matter. However, if one is a county health department officer, charged with civil enforcement of Health & Safety Code Chapter 343, this statute is absolutely made for comfort.

Conclusion
Teamwork ... teamwork ... teamwork. Code enforcement is often the first on the scene in situations involving health risk to the community. In some cases, simply enforcing municipal codes will get the problem solved. However, in other cases, code enforcement will have to get criminal law enforcement involved, and perhaps the city attorney who can exercise additional civil powers. In these cases, its important for all players to be cognizant of their roles, so that the case can be won through appropriate cooperation rather than thrown out as a result of role mix-up at the street level.