Sections 7.145 and 7.147 of the Texas Water Code are the felony and misdemeanor provisions most often used under Texas state law for environmental criminal prosecutions. The basic difference between the two is the requirement under Section 7.145 of proving the culpable mental state regarding the defendant’s conduct. As I blogged earlier, Section 7.147 does not impose a mens rea requirement even though the penalties come close to felony penalties.
Section 7.145 provides in part:
(a) A person commits an offense if the person, acting intentionally or knowingly with respect to the person’s conduct, discharges or allows the discharge of a waste or pollutant:
(1) into or adjacent to water in the state that causes or threatens to cause water pollution unless the waste or pollutant is discharged in strict compliance with all required permits or with an order issued or a rule adopted by the appropriate regulatory agency....
If found guilty, the punishment, for an individual, up to five (5) years in prison and a fine between $1,000.00 and $100,000.00. Texas Water Code § 7.187(a)(1)( C) and (a)(2)(F). Probation is a possibility. The punishment for a corporation is a fine between $1,000.00 and $250,000.00. Texas Water Code § 7.187(a)(1)(D).
For a conviction, the elements of the crime are:
(1) the named defendant;
(2) acting intentionally or knowingly with respect to the person’s conduct;
(3) discharged or allowed the discharge of a waste or pollutant;
(4) into or adjacent to water in the state;
(5) that causes or threatens to cause water pollution....
If this is proved, there will be a conviction.
In the next few days, we will discuss the specific elements.
As always, feel free to contact me via e-mail at firstname.lastname@example.org.