Full opinion text
OPINION JOHNSON, J., delivered the opinion of the Court in which PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined. Appellee was charged with improper outdoor burning. The information alleged that he did then and there unlawfully, intentionally or knowingly cause, allow, or permit outdoor burning, to wit: [appellee] burned domestic and non-domestic waste including crossties, fiberglass, tires and pvc pipe when collection of domestic waste is provided or authorized by the local governmental entity having jurisdiction, within the State of Texas in violation of an order, permit, or exemption issued or a rule adopted under Chapter 382, Health and Safety Code, to wit: Title 30, Texas Administrative Code Rule Section 111.201, and the outdoor burning was not authorized by the Executive Director of the Texas Commission o[n] Environmental Quality, nor was the outdoor burning authorized by an exception contained in Title 30, Texas Administrative Code Rule Sections 111.205, 111.207,111.209,111.211,111.213[.] Appellee filed a motion to quash the information, alleging that the provision of the Administrative Code under which he was charged was void because the legislature unconstitutionally delegated authority to the Texas Commission on Environmental Quality (TCEQ), an executive-branch agency, in violation of the doctrine of separation of powers. The trial court granted the motion. The state appealed, and the court of appeals reversed. State v. Rhine, 255 S.W.3d 745, 753 (Tex.App.Fort Worth 2008). Appellee filed a petition for discretionary review. Because Tex. Health & Safety Code § 382.018(a), which delegates to TCEQ the power to prohibit or control the outdoor burning of waste, is a constitutional delegation of legislative authority, we affirm the judgment of the court of appeals. Facts Few of the facts of the case are known to us because the appeal comes to us on a motion to quash. What we do know is that appellee admitted to a Denton County Fire Marshall that he had started a fire on July 8, 2005, in Northlake, Texas. The material burned in the fire included crossties, fiberglass, tires, and PVC pipe. On December 12, 2006, the state filed an information that alleged that appellee had violated the Texas Clean Air Act. On May 14, 2007, appellee moved to quash the information, contending that the enabling statute, the administrative rules adopted by TCEQ pursuant to that legislative authority, and the penal statute upon which the state’s information rested, comprised an unconstitutional delegation of legislative authority prohibited by Article II, § 1, of the Texas Constitution. He argued that the delegation was unconstitutional because the legislature did not define what materials and conditions were prohibited in outdoor burning, leaving those decisions to TCEQ. The trial court agreed and quashed the information. In his petition to this Court, appellee argues, as he did in the court of appeals, that the trial court was correct. Separation of Powers The issue of unconstitutional delegation that appellee raises implicates Article II, § 1, of the Texas Constitution. That article provides that [t]he powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. Tex. Const. art. II, § 1. Appellee argues that this section mandates a strict separation between the branches of government, making the delegation of authority from the legislature to TCEQ, an executive-branch agency, unconstitutional. However, his claim of strict interpretation ignores the precedent of not only this Court, but also that of the Texas Supreme Court. See, e.g., Ex parte Ferguson, 112 Tex. Crim. 152, 15 S.W.2d 650 (Tex.Crim.App. 1929); Land v. State, 581 S.W.2d 672 (Tex.Crim.App.1979); Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W. 227 (Tex.Crim.App.1920). See also Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex.1997). As this Court stated in Land v. State, “[t]here are many powers which the Legislature may delegate to other bodies ... where the Legislature cannot itself practically or efficiently perform the functions required.” Land, 581 S.W.2d at 673 (quoting Texas National Guard Armory Board v. McCraw, 132 Tex. 613,126 S.W.2d 627, 635 (1939).) In Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Crim.App.1990), this Court provided a test for determining when the separation of powers is violated. We have held repeatedly that the separation of powers provision may be violated in either of two ways. First, it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’ to another branch. The provision is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers. Id. at 239 (emphasis in original; internal citations omitted). Thus, if TCEQ has been delegated a power that is more properly attached to the legislature, then ap-pellee is correct, and the statute that he was charged with violating is unconstitutional. Powers Properly Attached to the Legislature The Texas Constitution vests lawmaking power in the legislature. Tex. Const. art. Ill, § 1. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991); Copeland v. State, 92 Tex.Crim. 554, 244 S.W. 818, 819 (Tex.Crim.App.1922). See also Russell v. Farquhar, 55 Tex. 355, 359 (1881). Only the legislature can exercise that power, subject to restrictions imposed by the constitution. Tex. Const. art. II, § 1. These restrictions must be express or clearly implied. Jones v. State, 803 S.W.2d 712, 716 (Tex.Crim.App.1991) (citing Gov’t Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 563 (Tex.1963)). The legislature also declares the public policy of the state and may depart from established public policy, reshape it, or reform it. State v. Dallas, 319 S.W.2d 767, 774 (Tex.Civ.App.-Austin 1958) (citing McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898, 900 (1955)); Reed v. Waco, 223 S.W.2d 247, 253 (Tex.Civ.App.-Waco 1949). It may do this as long as constitutional guarantees are not abridged. Reed, 223 S.W.2d at 253. The legislature may enact laws that enhance the general welfare of the state and resolve political questions, such as the boundaries of political subdivisions, subject to constitutional limits. Carter v. Hamlin Hosp. Dist., 538 S.W.2d 671, 673 (Tex.Civ.App.-Eastland 1976); see Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79, 28 S.Ct. 40, 52 L.Ed. 151 (1907). It also has exclusive dominion over the fixing of penalties for offenses under the state’s penal laws. See Sasser v. State, 131 Tex.Crim. 347, 98 S.W.2d 211, 212 (Tex.Crim.App.1936); David v. State, 453 S.W.2d 172, 179 (Tex.Crim.App.1970), vacated on other grounds in David v. Texas, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 755 (1972); Grant v. State, 505 S.W.2d 279, 282 (Tex.Crim.App.1974). The legislature may delegate some of its powers to another branch, but only if those powers are not more properly attached to the legislature. For example, legislative power cannot be delegated to the executive branch, either directly or to an executive agency. The issue becomes a question of the point at which delegation becomes unconstitutional. The Texas Supreme Court has described the problem: “the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.” Tex. Boll Weevil Eradication Found., Inc., 952 S.W.2d at 466. This Court, in Ex parte Granviel, 561 S.W.2d 503 (Tex.Crim.App.1978), stated that sufficient standards are necessary to keep the degree of delegated discretion below the level of legislating. Generally, a legislative body, after declaring a policy and fixing a primary standard, may delegate to the administrative tribunal or officer power to prescribe details, Margolin v. State, 151 Tex.Cr.R. 132, 205 S.W.2d 775 (1947); Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177 (1943), such as to establish rules, regulations or minimum standards reasonably necessary to carry out the expressed purpose of the act. Beall Medical Surgical Clinic and Hospital, Inc. v. State Board of Health, 364 S.W.2d 755 (Tex.Civ.App. Dallas, 1963), and cases there cited. Thus, the existence of an area for exercise of discretion by an administrative officer under delegation of authority does not render delegation unlawful where standards formulated for guidance and limited discretion, though general, are capable of reasonable application. Nichols v. Dallas, supra, and cases there cited. So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature’s jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Commissioners Court of Lubbock v. Martin, supra. Ex parte Granviel at 514 (citing Comm’rs Ct. of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.CivApp.-Amarillo 1971, writ ref'd, n.r.e); and Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App.-Dallas 1961)). Therefore, if the legislature has provided sufficient standards to guide the agency’s discretion and the delegated power is not legislative, that agency has not been granted a power that is more properly attached to the legislature and the delegation is not an unconstitutional violation of separation of powers. The Statutory Framework The statutory scheme is not straightforward; the statutes are found in at least two codes, and the restrictions on burning are scattered through the Administrative Code. Appellee was charged with violating Texas WateR Code § 7.177(a)(5), which governs violations of the Clean Air Act, which is found in the Health and Safety Code. (a) A person commits an offense if the person intentionally or knowingly, with respect to the person’s conduct, violates: (5) an order, permit, or exception issued or a rule adopted under Chapter 382, Health and Safety Code. (b) An offense under this section is punishable for an individual under Section 7.187(1)(B) or Section 7.187(2)(C) or both. The enabling provision of Chapter 382 of the Health and Safety Code for the specific rule that applicant was alleged to have violated is § 382.018(a). (a) Subject to Section 352.082, Local Government Code, and except as provided by Subsections (b) and (d), the commission by rule may control and prohibit the outdoor burning of waste and combustible material and may include requirements concerning the particular method to be used to control or abate the emission of air contaminants from that burning. “Air contaminants” are defined as “particulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural.” Tex. Health & Safety Code § 382.003(2). “Air pollution” is defined as the presence in the atmosphere of one or more air contaminants or combination of air contaminants in such concentration and of such duration that: (A) are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property; or (B) interfere with the normal use or enjoyment of animal life, vegetation, or property. Tex. Health & Safety Code § 382.003(3). To deal with these concerns, the legislature gave TCEQ several duties and powers: (a) The [TCEQ] shall: (1) administer [the Clean Air Act]; (2) establish the level of quality to be maintained in the state’s air; and (3) control the quality of the state’s air. (b) The commission shall seek to accomplish the purposes of [the Clean Air Act] through the control of air contaminants by all practical and economically feasible methods. (c) The commission has the powers necessary or convenient to carry out its responsibilities. Tex. Health & Safety Code § 382.011. The legislature stated that the purpose of the Clean Air Act is to safeguard the state’s air resources from pollution by controlling or abating air pollution and emissions of air contaminants, consistent with the protection of public health, general welfare, and physical property, including the esthetic enjoyment of air resources by the public and the maintenance of adequate visibility. Tex. Health & Safety Code § 382.002(a). TCEQ Regulations Pursuant to the Clean Air Act, TCEQ adopted a number of rules. Of relevance in this case are §§ 111.201-111.221 of 30 Tex. Admin.Code (1996) (Tex. Comm’n on Envtl. Quality, Outdoor Burning). Section 111.201 states the general prohibition. No person may cause, suffer, allow, or permit any outdoor burning within the State of Texas, except as provided by this subchapter or by orders or permits of the commission. Outdoor disposal or deposition of any material capable of igniting spontaneously, with the exception of the storage of solid fossil fuels, shall not be allowed without written permission of the executive director.... However, a number of exceptions to the general prohibition are set out in other sections, e.g., 30 Tex. Admin. Code § 111.205 (1996) (Tex. Comm’n on Envtl. Quality, Exception for Fire Training); § 111.207 (Exception for Fires Used for Recreation, Ceremony, Cooking, and Warmth); § 111.209 (Exception for Disposal Fires); § 111.211 (Exception for Prescribed Burn); § 111.213 (Exception for Hydrocarbon Burning). Outdoor burning is also allowed with approval of the executive director. 30 Tex. Admin. Code § 111.215 (1996) (Tex. Comm’n on Envtl. Quality, Executive Director Approval of Otherwise Prohibited Outdoor Burning). 30 Tex. Admin. Code § 111.209(1) (1996) (Tex. Comm’n on Envtl. Quality, Exception for Disposal Fires) states an exception for burning of domestic waste when local government does not provide disposal. This exception, on the scant evidence in the record, appears to be the only one that may be applicable. That provision authorizes domestic waste burning at a property designed for and used exclusively as a private residence, housing not more than three families, when collection of domestic waste is not provided or authorized by the local governmental entity having jurisdiction, and when the waste is generated only from that property. Provision of waste collection refers to collection at the premises where the waste is generated. The term “domestic waste” is defined in § 101.1 of this title (relating to Definitions). Wastes normally resulting from the function of life within a residence that can be burned include such things as kitchen garbage, untreated lumber, cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch trimmings. Examples of wastes not considered domestic waste that cannot be burned, include such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and appliances; Id. The information that was filed in this case alleged that appellee lacked approval from the executive director and that the burning did not fall into one of the exceptions to the general prohibition against outdoor burning. More specifically, the information alleged that appellee had burned both domestic waste, when collection of domestic waste was provided by the local governmental entity having jurisdiction, and non-domestic waste. Even if ap-pellee’s outdoor burning were in fact approved or fell within an exception, there are still other restrictions. Sections 111.219(1-6) set out requirements for notification of burning, permissible sites for burning, and permissible conditions for burning. Section 111.219(7) provides that certain materials may not be burned, despite being otherwise allowable. 30 Tex. Admin. Code § 111.219(7) (1996) (Tex. Comm’n on Envtl. Quality, General Requirements for Allowable Outdoor Burning). These materials are: “[ejlectrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber ....” Id. Appellee allegedly violated these rules by burning tires, PVC pipe, fiberglass, and crossties. Statutory Construction: Nature of Statute The nature of a statute determines its construction. Although the common-law rule that a penal statute is to be strictly enforced does not apply to the Penal Code, “criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused.” State v. Johnson, 219 S.W.3d 386, 388 (Tex.Crim.App.2007). The statutes involved here are found in the Water Code and the Health & Safety Code, not the Penal Code; thus we consider whether the statute at issue here is a penal statute. Under the “intent-effects test,” a reviewing court first must ask whether the legislature intended the statute to be a criminal punishment. “Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” [If] the legislature manifests an expressly punitive intent, the inquiry is at an end.... If the legislature intends to establish a civil remedy, a reviewing court then examines “whether the statutory scheme [is] so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.” Rodriguez v. State, 93 S.W.3d 60, 67 (Tex.Crim.App.2002) (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)) (citations omitted). Section 12.41 of the Penal Code, Classification of Offenses Outside This Code, states that [f|or purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows: (1) “felony of the third degree” if imprisonment in a penitentiary is affixed to the offense as a possible punishment; (2) “Class B misdemeanor” if the offense is not a felony and confinement in a jail is affixed to the offense as a possible punishment; (3) “Class C misdemeanor” if the offense is punishable by fine only. We conclude that, because an offense alleged under Tex. WateR Code § 7.177(a)(5) is punishable by up to 180 days in jail pursuant to Tex. Water Code § 7.187(2X0, § 7.177(a)(5), it is a Class B misdemeanor. It is therefore a penal statute and “must be construed strictly, with any doubt resolved in favor of the accused.” Construction of Penal Statutes Under Boykin, statutes are read according to the plain meaning of their literal text as long as it is clear and unambiguous. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). However, if the plain language leads to an absurd result or is ambiguous, “then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extra-textual factors as executive or administrative interpretations of the statute or legislative history.” Id. Section 311.011 of the Code Construction Act states that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage” and that “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” These provisions apply to statutes and rules “adopted under a code.” Section 311.002. The Validity of the Delegation of Powers This Court stated in Granviel that, when validly delegating authority, the legislature must declare a policy and fix a primary standard. Ex parte Granviel, 561 S.W.2d at 514. Here, the legislature has declared a policy: “(a) The policy of this state and the purpose of this chapter are to safeguard the state’s air resources from pollution by controlling or abating air pollution and emissions of air contaminants, consistent with the protection of public health, general welfare, and physical property, including the esthetic enjoyment of air resources by the public and the maintenance of adequate visibility.” Tex. Health & Safety Code § 382.002(a). Because there is a stated policy, the issue becomes whether the legislature has provided a fixed primary standard that is sufficiently complete, is capable of reasonable application, provides guidance, and limits discretion. TCEQ’s grant of authority from the legislature as to outdoor burning is limited to its responsibility to maintain the state’s air quality by controlling air contaminants. The general grant of powers and duties given to TCEQ by the legislature are that (a) The [TCEQ] shall: (1) administer [the Clean Air Act]; (2) establish the level of quality to be maintained in the state’s air; and (3) control the quality of the state’s air. (b) The commission shall seek to accomplish the purposes of [the Clean Air Act] through the control of air contaminants by all practical and economically feasible methods. (c) The commission has the powers necessary or convenient to carry out its responsibilities. Tex. Health & Safety Code § 382.011. TCEQ may, at its discretion, adopt rules that may differentiate among particular conditions, particular sources, and particular areas of the state, but it shall recognize that atmospheric conditions may create a need for air control in one area of the state, but not in other areas, and that residential, industrial, and rural areas may necessitate rules appropriate to each kind of area. Tex. Health & Safety Code § 382.017(d-e). Further, with some exceptions, TCEQ may not, by rule, “specify: (1) a particular method to be used to control or abate air pollution; (2) the type, design or method of installation of equipment to be used to control or abate air pollution; or (3) the type, design, method of installation, or type of construction of a manufacturing process or other kind of equipment.” Tex. Health & Safety Code § 382.017(f). Tex. Health & Safety Code § 382.018(a) states that TCEQ “may control and prohibit the outdoor burning of waste and combustible material and may include requirements concerning the particular method to be used to control or abate the emission of air contaminants resulting from that burning.” “Air contaminants” is defined by the legislature as “particulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural.” Tex. Health & Safety Code § 382.003(2). The legislature did not define “waste” or “combustible material” in the Clean Air Act. “Combustible material” is unambiguous in its plain meaning; a combustible material is a material that burns. “Waste,” on the other hand, may have many meanings. The statute leaves to TCEQ’s discretion the definition of the term as it is used in § 381.0189(a), but this discretion is not unfettered. Within that statute, the legislature provided additional guidance to TCEQ that narrowed the extent of its discretion. Subsection 382.018(b) requires TCEQ to allow outdoor burning of plant growth in certain areas. Subsection § 382.018(c) prohibits TCEQ from requiring burning done pursuant to § 382.018(b) to have TCEQ’s approval or requiring that there be no alternative to burning. Subsection (d) prohibits TCEQ from restricting burning of plant growth at designated burn sites, subject to specific requirements as to location and supervision by the fire department. Subsection (e) requires TCEQ to advise the fire-department employee who is supervising burning pursuant to § 382.018(d) about alternatives to burning. In combination, these subsections exclude plant growth from the definition of “waste.” In the outdoor-burning enabling statute, the legislature gave to TCEQ the power to “control and prohibit the outdoor burning of waste and combustible material” and to “include requirements concerning the particular method to be used to control or abate the emission of air contaminants from that burning.” Tex. Health & Safety Code § 382.018(a). Because TCEQ’s grant of authority includes control of air contaminants and permission to use “all practical and economically feasible methods” to accomplish that goal, including prohibition and control of the outdoor burning of waste, we conclude that materials, other than plant growth, that produce air contaminants when burned are what is meant by “waste.” The Code Construction Act instructs us that we are to read words of statutes and rules in context and construe them according to the rules of grammar and common usage unless a word has acquired a technical meaning. By the plain language of the rule, “waste,” read in the context of 30 Tex. Admin. Code § 111.209(1) and construed according to the rules of grammar and common usage, means “domestic waste,” which is defined in 30 Tex. Admin. Code § 101.1(26) as “[t]he gai’bage and rubbish normally resulting from the functions of life within a residence.” Section 111.209(1) states that “[wjastes normally resulting from the functions of life within a residence include kitchen garbage, untreated lumber, cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch trimmings. Examples of wastes not considered domestic waste [and] that cannot be burned, include such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and appliances.” “Waste” is thus, by the language of the rule, divided into “domestic waste” that may be burned in some circumstances and “wastes not considered domestic waste” that may not be burned, presumably because the non-domestic wastes produce an unacceptable level of air contaminants. We conclude that the standard expressed by the legislature sufficiently limited the authority of TCEQ such that the legislature defined the elements of the offense and left to TCEQ only 1) the determination of what materials that, when burned, created the air contaminants that were the concern of the legislature, and 2) control over the places and conditions under which those materials may be burned. Further, TCEQ is barred from mandating the methods or equipment to be used in outdoor burning. In accordance with the strictures placed on it by the legislature, TCEQ adopted rules that delineate only what materials may be burned and the conditions under which those materials may be burned. The rules set out reasonable means through which TCEQ obeys the legislative mandate to control the level of air contaminants produced by outdoor burning and do not stray beyond the authority granted by the legislature. Conclusion The legislature declared both a policy as to restricting the production of air contaminants that result from outdoor burning and a sufficient fixed primary standard as to what “wastes” TCEQ may restrict: those materials that produce air contaminants when burned. As we said in Ex parte Granviel, the existence of an area for exercise of discretion by an administrative officer under delegation of authority does not render delegation unlawful where standards formulated for guidance and limited discretion, though general, are capable of reasonable application.... So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature’s jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Id. at 514. Because the legislature declared a policy and set standards and limitations on the authority delegated to TCEQ that are capable of reasonable application, provide guidance, and limit discretion, it has not unconstitutionally delegated to TCEQ authority more “properly attached to” the legislature and, therefore, there is no violation of the separation of powers principle of Art. II, § 1, of the Texas Constitution. We affirm the judgment of the court of appeals and remand this cause to the trial court for further proceedings. KELLER, P.J., filed a concurring opinion in which MEYERS, HERVEY, and HOLCOMB, JJ., joined. KEASLER, J., concurred. . Tex. Health & Safety Code § 382.018. . 30 Tex. Admin. Code §§ 111.201-221 (1996) (Tex. Comm'n on Envtl. Quality, Outdoor Burning). .Tex. Water Code § 7.177(a)(5). . (1) a fine, as imposed under the section creating the offense, of: (B) not less than $ 1,000 or more than $ 50,000; (2) confinement for a period, as imposed by the section creating the offense, not to exceed: (C) 180 days.... Tex Water Code § 7.187(1)(B), (2)(C). . There is a conflict between this section's overarching prohibition on plastics and § 111.209(l)’s allowance of packaging plastics in domestic waste. This may be a de minimis exception, as most domestic plastic packaging are small items. Whatever the inconsistency as to plastic packaging, appellee also burned explicitly prohibited materials, including rubber (tires), treated lumber (crossties), and non-wood construction/demolition debris (PVC pipe and fiberglass). . Tex Penal Code § 1.05(a). . Tex Gov't Code, Ch. 311. . Webster’s defines waste as: —n. 1. The act of wasting or the state of being wasted. 2. An uninhabited or uncultivated place or region. 3. A devastated or destroyed region, town, or building: Ruin. 4. a. A worthless or useless by-product, b. Something, as steam, that escapes without being used. 5. Garbage: trash. 6. The undigested residue of food eliminated from the body. Webster’s II New College Dictionary (1999). Black's Law Dictionary defines waste as: waste, n. 1. Permanent harm to real property committed by a tenant (for life or for years) to the prejudice of the heir, the reversioner, or the remainderman. • In the law of mortgages, any of the following acts by the mortgagor may constitute waste: (1) physical damage, whether intentional or negligent, (2) failure to maintain and repair, except for repair of casualty damage or damage caused by third-party acts, (3) failure to pay property taxes or governmental assessments secured by a lien having priority over the mortgage, so that the payments become delinquent, (4) the material failure to comply with mortgage covenants concerning physical care, maintenance, construction, demolition, or casualty insurance, or (5) keeping the rents to which the mortgagee has the right of possession. — Also termed devastation; vastum. Black’s Law Dictionary (8th ed. 2004).
KELLER, P.J., filed a concurring opinion in which MEYERS, HERVEY, and HOLCOMB, JJ., joined. We granted review to determine whether the penal offense with which appellee was charged — violation of outdoor burning regulations for which a criminal penalty is attached under the Water Code — violates the separation-of-powers provision of the Texas Constitution. In support of his ground for review, appellee argues that the coui’t of appeals engaged in an improper “lockstep” analysis with federal deci-sional law that was based on a Texas Supreme Court case that made the same mistake. In a wide-ranging discussion, he quotes from James Madison and Thomas Jefferson, traces the development of the doctrine of separation of powers from John Locke to the Continental Congress, examines the historical developments surrounding the framing of the constitutions of the United States, Virginia, Kentucky, and Texas, and evaluates the jurisprudence of Texas and other states. From this discussion, appellee argues that Madison and Jefferson had rival conceptions of the doctrine of separation of powers. He contends that Madison’s more liberal, “balance of power” approach ultimately prevailed with respect to the United States Constitution, which has no express separation-of-powers provision, but that Jefferson’s formalist, strict separation approach has prevailed in many states, including Texas, that adopted an express separation-of-powers provision modeled after the one Jefferson formulated. Appellee argues that the strict separation approach prohibits the Legislature from delegating to an executive agency the ability to enact rules that fix elements of criminal offenses. He argues alternatively that, under either a restrictive or liberal approach, the legislative delegation fails to provide sufficient guidance to the administrative agency on what types of outdoor burning may be prohibited. Though the Court spends a great deal of time setting forth various statutory provisions and administrative regulations, it addresses in only the most cursory fashion appellee’s argument for a more restrictive approach to the doctrine of separation of powers, citing a few cases and saying that his claim of strict interpretation ignores precedent from this Court and the Texas Supreme Court. We have stated that “[a]s a general proposition, reviewing courts ought to mention a party’s number one argument and explain why it does not have the persuasive force that the party thinks it does.” Especially considering the quality of the briefing in this case, and the potentially far-reaching consequences of our decision, it is essential to address appellee’s principal contentions. Since the Court does not do so, I shall. A. Preservation of Error But first I address a preservation-of-error argument advanced by the Texas Commission on Environmental Quality (“TCEQ”) in its amicus brief. Though the argument is raised for the first time on discretionary review, “preservation of error is a systemic requirement that must be reviewed by the courts of appeals regardless of whether the issue is raised by the parties,” and so inquiry even at this late stage may be appropriate. Moreover, we have “recognized the desirability of avoiding the adjudication of constitutional issues when at all possible,” and great care should be taken especially when resolution of the constitutional issue “threatens to overturn the acts of another branch of government.” TCEQ contends that appellee has forfeited his right to urge his restrictive interpretation of the doctrine of separation of powers because he did not raise it before the trial court and because the court of appeals did not address it. It is true that, by relying solely upon federal constitutional authority at trial, an appealing party can forfeit a claim that the Texas Constitution provides more expansive protections. But appellee won at trial, so the appellate court could affirm on a legal theory not presented to the trial court. And because appellee did not even have to file a brief in the court of appeals, the failure of the court of appeals to address his legal contentions does not preclude us from doing so. B. Separation of Powers 1. Is the Texas Constitutional Provision More Restrictive? The United States Constitution contains no express separation-of-powers provision. Separation of powers is implied through the federal constitution’s structure, dividing government into three branches, and through vesting into each branch its particular power, legislative, executive, or judicial, as the case may be. With respect to legislative power, the United States Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” By contrast, the Texas Constitution contains the following express separation-of-powers provision: The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. This has been identified as a “strict” separation-of-powers provision, and thirty-five states have such a provision. All other things being equal, this textual difference between the United States and Texas constitutions suggests that Texas would more aggressively enforce separation of powers between its governmental branches than would the federal government. That conclusion is buttressed by historical developments surrounding the framing of the United States and Texas constitutions. Madison is generally credited as the principal author of the United States Constitution, and he did indicate that the principle of separation of powers was of the utmost importance: “If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers.” Nevertheless, his arguments in defense of the Constitution in the Federalist Papers indicate that he was more concerned with checks and balances between the various branches than with maintaining strict separation. It was Madison’s view that the principle behind the doctrine of separation of powers was violated only when “the whole power of one department is exercised by the same hands which possess the luhole power of another department.” He further contended that “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against” the tyrannical concentration of power. Rather, the three branches must be “so far connected and blended as to give to each a constitutional control over the others.” Jefferson, too, was concerned with checks and balances, but he also wanted a strong statement concerning the separation of powers. In his Notes on the State of Virginia he said that “the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Jefferson believed that the “legislative, executive and judiciary department should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time” and a “barrier” should be “provided between these several powers.” Most importantly, Jefferson’s proposed constitution for Virginia, contained in an appendix to his Notes, included an express separation-of-powers clause that is almost identical to the one found in the Texas Constitution. The high courts in Kentucky and Louisiana have recognized Jefferson as the author of their similarly-worded separation-of-powers provisions. According to an account given by the Supreme Court of Kentucky, Jefferson told John Breckinridge and George Nicholas “that there was a danger in the federal constitution because the clause defining the powers of the departments of government was not sufficiently guarded, and that the first thing to be provided for by the Kentucky constitution should be to confine the judiciary to its powers, and the legislative and executive to theirs.” In some contexts, the Supreme Court has recognized a vigorous role for the doctrine of separation of powers: “[T]he doctrine of separation of powers is a structural safeguard ... a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” As recently as last year, the Supreme Court invalidated a President’s action as intruding upon Congress’s exclusive authority to make law. The Supreme Court of Kentucky has remarked, “The United States Supreme Court has consistently allayed Jefferson’s purported fears.” But with respect to the legislative delegation of power to executive agencies, the same Kentucky court characterized the Supreme Court’s enforcement of separation of powers as “toothless” and “feeble.” Though the Supreme Court has developed a nondelegation doctrine, it has found a delegation of authority to an administrative agency to violate separation of powers on only three occasions, all of which were during the New Deal era. That was when the “court-packing” controversy occurred, after which the Supreme Court declined to overturn any more administrative legislation. “[T]he notion that the Constitution narrowly confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930s, has been virtually abandoned by the Court for all practical purposes.” The Supreme Court of Florida has called the federal approach to the nondelegation doctrine a “nondoctrine,” saying that the Supreme Court has essentially abdicated any responsibility to act in the matter. Due to differences in the text of state and federal constitutions and the history of federal jurisprudence, at least some state courts have expressly declared that federal authority is not persuasive in this area of the law. In a context other than legislative delegation, this Court has enforced the doctrine of separation of powers more aggressively than the United States Supreme Court has. In Meshell v. State, we held the Texas Speedy Trial Act unconstitutional because the time limits imposed on criminal prosecutions were an unlawful encroachment on the exclusive discretion of the prosecutor — a member of the judicial branch. By contrast, the federal Speedy Trial Act remains vital. There are several aspects to the doctrine of separation of powers. If Texas and federal jurisprudence differ in one aspect, the chances are good that they differ in other aspects as well. If Texas defends more vigorously the dividing line between the legislative and judicial branches, then it would likely also defend more vigorously the line between the legislative and executive branches. Because defense of the nondelegation line between the legislative and executive branches in the federal system is almost nonexistent, it stands to reason that defense of that line in the Texas state system would be more robust. 2. Are Criminal Sanctions Categorically Prohibited? I begin with appellee’s contention that the Legislature can never delegate the power to fix elements of a criminal offense. Appellee cites two Texas cases, Ex parte Humphrey and Ex parte Leslie, for the proposition that “the authority to define crimes, and to fix punishments for those crimes, is vested exclusively in the Legislature.” But both decisions recognized the ability of the Legislature to attach criminal penalties to the violation of a regulation under the proper conditions: Judicial sanction has often been given to the exercise of the power to, by law, prescribe the punishment for the violation of the regulations of a board or commission, upon the theory that, observing proper limitations, such an act is not obnoxious to the principle denying to the Legislature the power to delegate its authority. The power to make laws is placed by the people through the Constitution upon the Legislature. The rights of individuals are guarded by restrictions touching the enactment and publication of laws, and the privilege is afforded of presenting by petition or appearance before the legislative committees opposition to proposed enactments affecting the property or the liberty of the citizen. A completed law, if penal in its effect, must define the act or omission denounced as criminal to some degree of certainty. In conferring upon an instrument of government, such as the live stock sanitary commission, the power to make rules, the nonobservance of which constitutes a criminal offense, it is deemed necessary that the Legislature define the power and place limitations upon the authority to promulgate rules, to the end that they may not be lacking in the essential elements of a law denouncing an offense. Moreover, early Texas caselaw contains examples of this Court upholding laws that criminally punish the violation of an administrative regulation. In Smith v. State, the defendant was prosecuted for driving cattle across a quarantine line. We held that the Legislature did not unconstitutionally delegate lawmaking authority to the Live Stock Sanitary Commission; rather, the Commission was acting “under specific command of the Legislature in establishing those lines whenever they deemed it was necessary to do so to protect the live stock of this state from splenetic fever, or infectious or contagious diseases.” In Williams v. State, the defendant was convicted of growing cotton in an area designated by the Pink Bollworm Commission as a regulated zone and in violation of regulations promulgated by the Commissioner on Agriculture. We held that the Legislature did not improperly delegate its authority: The generally accepted rule governing such matters now appears to be that a legislative body may, after declaring policy and fixing a primary standard, confer upon executive or administrative officers the power to fill up the details, by prescribing rules and regulations to promote the purpose and spirit of the legislation and to carry it into effect. In such cases the action of the Legislature in giving such rules and regulations the force of laws does not violate the constitutional inhibition against delegating the legislative function. In reviewing the jurisprudence of other states, appellee comments that he “has discovered no decisional law, in either these States [with a strict separation-of-powers provision] or in those others that have less specific provisions, in which a State legislature has been constitutionally permitted to delegate to a state agency the legislative authority to define the elements of a criminal offense.” He contends, however, that decisional law from other states is instructive, and he discusses a case from Kentucky, a case from Florida, and a Texas case that relies upon authority from Indiana, Missouri, and Alabama. His discussion of these cases reveals that they are relevant only to the extent that they advocate, in general, a restrictive approach to separation of powers — a proposition that I have already accepted. But, in fact, many states have addressed the delegation question with respect to criminal offenses, and the weight of authority is against appellee’s contention that the fixing of elements of criminal offenses can never be delegated. Cases from courts of last resort in eight states have holdings and contain language that might suggest that criminal offenses are simply off limits when it comes to delegating authority to an administrative agency. But later eases in four of those states have held that such a reading is too broad and that delegation is permissible if certain conditions are met. A reading of the opinions in the remaining four states suggests that there may also be bases for distinguishing or limiting their holdings. And a number of other states have upheld legislative delegations that involve elements of criminal offenses. Some of these delegations occurred in connection with a state’s controlled substances act, which carried felony penalties, and courts have observed that permitting delegation in that context is the “majority view” of those jurisdictions addressing the issue. Appellee’s argument also runs up against a practical consideration. The regulation at issue has both civil and criminal penalties. The penalties themselves are statutory. Is an administrative rule any less “legislative” if it carries only a civil penalty rather than a criminal one? The criminal nature of the penalty makes a difference for many constitutional provisions that directly protect the citizen from the government: due process and the right to a jury trial, for example. But separation of powers is concerned with the government’s relationship with itself rather than with citizens who may be potential rule-breakers. 3. What is the scope of the Texas Constitutional provision? In Field v. Clark, a late nineteenth-century case, the United States Supreme Court quoted a Pennsylvania decision for the distinction between a law that properly confers administrative authority and one that improperly delegates legislative authority: The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation. This Court and the vast majority of other state courts of last resort have quoted from this passage with approval (including the high courts in Florida and Kentucky, upon which appellee relies most). Beyond agreement on this passage, there are various approaches and nuances in the states with respect to the issue of nondelegation. One scholar has grouped the states into three broad nondelegation categories; weak, moderate, and strong. Notably, in the “strong” nondelegation category, he has included Texas, Florida, Arizona, Illinois, Kentucky, Massachusetts, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, South Carolina, Virginia, and West Virginia. Louisiana, the state other than Kentucky to recognize the Jeffersonian origin of its “strict” separation-of-powers provision, is categorized as a “moderate” nondelegation state. New York, Ohio, and Pennsylvania have no express separation-of-powers clause, New Hampshire and South Dakota have a “general” provision, and the remaining states in the “strong” category, like Texas, have a “strict” provision expressly requiring separation of the branches of government. Whether the characterization of how strongly various states enforce the nondelegation doctrine was correct when made or remains correct today is a difficult matter to ascertain without close familiarity with the jurisprudence of every state in the country. But an examination of the cases can reveal some common threads that are relevant to our inquiry. This Court and courts in other states have widely upheld the delegation of authority to an administrative agency so long as the Legislature enacts proper standards to guide administrative discretion. When the subject matter to be regulated is complex, courts have allowed the standards to be more general in order to afford sufficient flexibility to the agency and to take advantage of expertise. Environmental regulation in particular has been characterized as a complex field in which a large amount of administrative discretion is necessary. The Supreme Court of Florida explained: Clearly, environmental protection requires highly technical, scientific, regulatory schemes to ensure proper compliance with legislative policy. It would be difficult, if not impossible, to require the Legislature to enact such rules, regulations and procedures capable of addressing the myriad of problems and situations that may arise implicating pollution control and prevention. Nevertheless, courts have also recognized that standards should not be so vague as to confer discretion that is absolute, unbridled, open-ended, arbitrary, or uncontrolled. In addition, a number of courts have held that procedural safeguards must accompany broad standards to ensure that the agency action conforms to those standards. The required procedural safeguards typically include a pre-adoption public hearing and post-adoption judicial review. Procedural safeguards ensure that the administrative agency really is doing the will of the Legislature: The pre-adoption public hearing ensures that the administrative agency takes the legislative standards into account, engaging in factual determinations that relate to the legislative standards rather than simply dictating policy, and judicial review ensures that the administrative agency’s rules and other actions actually conform to the legislative standards. Of course, for safeguards to have meaning, the legislative standards must be sufficiently specific to allow the agency and the courts to determine whether the agency is carrying out the intent of the legislature. Though the line of demarcation between a proper and an improper delegation may not be easy to discern, the branches should be kept as separate as possible while taking into account the practical necessities of life. The fact that the Legislature could have been more specific does not necessarily invalidate a delegation, however, and legislative standards can be implied from an express statutory purpose, consistent with the principle that we will employ a narrowing construction to save the constitutionality of a statute if it is amenable to such a construction. The Supreme Court of Kentucky has explained that one important purpose of the nondele-gation branch of the separation-of-powers doctrine is to ensure that the Legislature takes the political heat for its enactments rather than shifting blame to an unelected bureaucrat. Application of these principles may be found in a number of cases, and I discuss a few of the significant decisions here. I begin with cases that have found a delegation to be unconstitutional. In Askew v. Cross Key Waterways, the Supreme Court of Florida addressed the constitutionality of the Florida Environmental Land and Water Management Act. That statute empowered “the Division of State Planning to recommend areas of critical state concern to the Governor and cabinet acting as the Administration Commission” and empower this Administration Commission to act on those recommendations. An area could be designated as “of critical state concern” if it had significant impact upon “environmental, historical, natural, or archaeological resources of regional or statewide importance,” was significantly affected by or had a significant effect upon “an existing or proposed major public facility or other area of major public investment,” or was a “proposed area of major development potential,” including “a proposed site of a new community.” This scheme violated separation of powers because it conferred upon the Administrative Commission “the fundamental legislative task of determining which geographic areas and resources are in the greatest need of protection.” The statute treated “alike, as fungible goods, disparate categories of environmental, historical, natural, and archaeological resources of regional or statewide importance and all of Florida’s manifold resources within those vast categories,” so that a reviewing court could not possibly “ascertain whether the priorities recognized by the Administration Commission comport with the intent of the legislature.” In Boreali v. Axelrod, the New York Court of Appeals addressed the constitutionality of regulations on the indoor smoking of tobacco. The Public Health Council promulgated “regulations prohibiting smoking in a wide variety of indoor areas that are open to the public, including schools, hospitals, auditoriums, food markets, stores, banks, taxicabs and limousines.” The rules required restaurants with seating capacities of greater than fifty people to provide nonsmoking areas, and employers were required to provide smoke-free work areas for nonsmoking employees. Some areas were exempt from the regulations, including restaurants with seating capacities of less than fifty, conventions, trade shows, and bars. A waiver of the regulations could be obtained from the Commissioner “upon a showing of financial hardship.” The claimed authority for these regulations was a statute that authorized the Public Health Council to “deal with any matter affecting the ... public health.” The New York court declined to say that the broad enabling statute was itself an unconstitutional delegation of legislative authority, but the court concluded that the agency “stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be.” The court gave four reasons for its conclusion: First, the court observed that, while “acting to further the laudable goal of protecting nonsmokers from the harmful effects of ‘passive smoking,’ ” the agency in reality “constructed a regulatory scheme laden with exceptions based solely upon economic and social concerns.” Second, the agency wrote on a “clean slate,” creating “a comprehensive set of rules without the benefit of legislative guidance.” Third, the agency “acted in an area in which the Legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions.” Finally, no special expertise or technical competence in the field of health was involved in the development of the anti-smoking regulations. In Ex parte Leslie, we addressed the constitutionality of a statute authorizing administrative action with respect to livestock. The defendant was prosecuted for failing to dip cattle that were in a quarantine zone. The relevant statute made it a criminal offense to fail to dip livestock “at such time and in such manner as directed in writing by the live stock sanitary commission.” On March 27th, the commission ordered the defendant to dip his cattle on March 29th between 7:00 a.m. and 1:00 p.m. Though the Legislature’s clear purpose was to protect livestock from diseases, the statute in question imposed an affirmative duty on livestock owners to comply with an inspector’s order without providing any guidance concerning the “dates or intervals when cattle shall be dipped” or the amount of notice that an owner should have to bring his cattle into compliance. Another example of a case in which the legislative policy was perhaps clear but the statutory standards were not is the Florida decision in B.H. v. State. In that case, a statute created the crime of “escape from any secure detention facility or any residential commitment facility of restrictiveness level VI or above.” The Department of Health and Rehabilitative Services was given the authority to define restrictiveness levels “in terms of broad categories based on ‘the risk and needs of the individual child,’ of which there can be no more than eight,” with no other meaningful limitations. The Department created four risk levels, numbered 2, 4, 6, and 8. The Florida Supreme Court observed that the Department could have just as easily created risk levels numbered 1 through 4 — in which case no facility would fall within the definition of the offense — or risk levels numbered 10, 20, 30, and 40 — in which case all facilities would fall within the definition of the offense. Thus, the enabling statute failed to articulate reasonably definite standards, instead conferring unlimited and arbitrary discretion. I turn now to some cases that have upheld a delegation as constitutional. I refer again to our decisions in Smith and Williams, respectively involving transportation of cattle across a quarantine line and the growing of cotton in a quarantine zone. The legislative policy of preventing the spread of disease to livestock or cotton was clear, the need for expertise and the ability to address conditions on the ground was evident, and the authority to designate zones based on the threat of disease infestation was reasonably specific. A number of jurisdictions have upheld the delegation of authority to an administrator to designate a particular drug as a controlled substance, and prosecute possession of that substance as a crime. In most of these cases the statute contained a li