State v. Rhine

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 regulations1 for which a criminal penalty is attached under the Water Code2 — violates the separation-of-powers provision of the Texas Constitution.3 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…