By:  Solis                                             H.B. No. 894
       73R4574 T
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to administrative penalties for violation of minimum
    1-3  clearance standards around railroad tracks.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Title 112, Revised Statutes, is amended by adding
    1-6  Article 6559e-1 to read as follows:
    1-7        Art. 6559e-1.  Administrative Penalty
    1-8        (a)  A person who violates Article 6559a, Article 6559b or
    1-9  Article 6559c, Revised Statutes, or the provisions of any Railroad
   1-10  Commission of Texas safety standard, rule, regulation or order
   1-11  adopted or issued under Article 6559e, Revised Statutes, by the
   1-12  commission.
   1-13        (b)  The penalty may not exceed $10,000 for each violation.
   1-14  Each day a violation continues may be considered a separate
   1-15  violation for purposes of penalty assessments.
   1-16        (c)  In determining the amount of the penalty, the commission
   1-17  shall consider the person's history of previous violations, the
   1-18  seriousness of the violation, any hazard to the health or safety of
   1-19  the public, and the demonstrated good faith of the person charged.
   1-20        (d)  A civil penalty may be assessed only after the person
   1-21  charged with a violation described under Section (a) of this
   1-22  article has been given an opportunity for a public hearing.
   1-23        (e)  If a public hearing has been held, the commission shall
   1-24  make findings of fact, and it shall issue a written decision as to
    2-1  the occurrence of the violation and the amount of the penalty that
    2-2  is warranted, incorporating, when appropriate,  an order requiring
    2-3  that the penalty be paid.
    2-4        (f)  If appropriate, the commission shall consolidate the
    2-5  hearings with other proceedings under this article.
    2-6        (g)  If the person charged with the violation fails to avail
    2-7  himself of the opportunity for a public hearing, a civil penalty
    2-8  may be assessed by the commission after it has determined that a
    2-9  violation did occur and the amount of the penalty that is
   2-10  warranted.
   2-11        (h)  The commission shall then issue an order requiring that
   2-12  the penalty be paid.
   2-13        (i)  On the issuance of an order finding that a violation has
   2-14  occurred, the commission shall inform the person who is found in
   2-15  violation of the amount of the penalty within 30 days.
   2-16        (j)  Within the 30-day period immediately following the day
   2-17  on which the decision or order is final as provided in Section
   2-18  16(c), Administrative Procedure and Texas Register Act (Article
   2-19  6252-13a, Vernon's Texas Civil Statutes), the person charged with
   2-20  the penalty shall:
   2-21              (1)  pay the penalty in full; or
   2-22              (2)  if the person seeks judicial review of either the
   2-23  amount of the penalty or the fact of the violation, or both:
   2-24                    (A)  forward the amount to the commission for
   2-25  placement in an escrow account; or
   2-26                    (B)  in lieu of payment into escrow, post with
   2-27  the commission a supersedeas bond in a form approved by the
    3-1  commission for the amount of the penalty, such bond to be effective
    3-2  until all judicial review of the order or decision is final.
    3-3        (k)  If through judicial review of the decision or order it
    3-4  is determined that no violation occurred or that the amount of the
    3-5  penalty should be reduced or not assessed, the commission shall,
    3-6  within the 30-day period immediately following that determination,
    3-7  if the penalty has been paid to the commission, remit the
    3-8  appropriate amount to the person, with accrued interest, or where a
    3-9  supersedeas bond has been posted, the commission shall execute a
   3-10  release of such bond.
   3-11        (l)  Failure to forward the money to the commission or post
   3-12  bond within the time provided by Section (j) of this article shall
   3-13  result in a waiver of all legal rights to contest the violation or
   3-14  the amount of the penalty.
   3-15        (m)  Judicial review of the order or decision of the
   3-16  commission assessing the penalty shall be under the substantial
   3-17  evidence rule and shall be instituted by filing a petition with the
   3-18  district court of Travis County, Texas, and not elsewhere, as
   3-19  provided for in Section 19, Administrative Procedure and Texas
   3-20  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
   3-21        (n)  Civil penalties owed under this article may be recovered
   3-22  in a civil action brought by the Attorney General at the request of
   3-23  the commission.
   3-24        SECTION 2.  This Act takes effect September 1, 1993.
   3-25        SECTION 3.  The importance of this legislation and the
   3-26  crowded condition of the calendars in both houses create an
   3-27  imperative public necessity that the constitutional rule requiring
    4-1  bills to be read on three several days in each house be suspended,
    4-2  and this rule is hereby suspended.