Environmental Law

Aggressive Prosecution or Abusive Tactics?

By Walter James

The Houston Police Department has a history of, to put it politely, aggressive investigations of alleged environmental criminal activity.  Is it too aggressive?  Some certainly think so.  Just ask George McCall (?Mac?) Secrest, Jr. or Dean Blumrosen. These guys are top notch criminal defense lawyers and have gone up against the City of Houston environmental prosecutors, toe-to-toe.  There are also a number of newspaper articles regarding their cases.  See http://www.houstonpress.com/2002-01-31/news/dumped-on/4 and http://www.houstonpress.com/2004-08-19/news/end-of-the-line/

[So I get an e-mail from a ?dedicated follower? who points out to me that the majority of Houston Police Department environmental cases are referred to the District Attorney's Office.  Very few are prosecuted by the City Attorney's Office. It is an important distinction.  Thanks for the input, Clarissa] 

In 2003, the Texas Legislature thought they cured the problem.  They passed a law that gave the TCEQ oversight.  Section 7.203 (b) of the Texas Water Code provides: 

Before a peace officer . . . may refer any alleged criminal environmental violation by a person holding a permit issued by the [TCEQ] . . . or of any other statute, rule, order, permit, or other decision of the commission that is within the [TCEQ?s] jurisdiction to a prosecuting attorney for criminal prosecution, the peace officer shall notify the [TCEQ] in writing of the alleged criminal environmental violation and include with the notification a report describing the facts and circumstances of the alleged criminal environmental violation. 

Tex. Water Code § 7.203(b).  Once the referral is made, the TCEQ must then ?evaluate the report and determine whether an alleged environmental violation exists and whether administrative or civil remedies would adequately and appropriately address the alleged environmental violation.?  Tex. Water Code § 7.203(c). 

How often does this happen?  I cannot tell you - yet; however, I have made a Public Information Act request to the TCEQ for documentation of the referrals and evaluations.

More later.

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

Full post as published by Environmental Crimes Blog on May 27, 2010 (boomark / email).