By: Bosse H.B. No. 1966
73R3314 JJT-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the consideration of an economic benefit gained by a
1-3 person through a violation of law when calculating certain
1-4 penalties against that person for that violation.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 12.020, Agriculture Code, is amended by
1-7 amending Subsections (b), (c), (d), and (e) and adding Subsections
1-8 (q), (r), and (s) to read as follows:
1-9 (b) The minimum penalty for a violation is an amount equal
1-10 to the greater of an amount established by the department under
1-11 Subsection (q) of this section or the economic benefit gained by
1-12 the violator through the violation. The maximum penalty for a
1-13 violation is an amount equal to the economic benefit gained by the
1-14 violator through the violation plus an amount not to exceed the
1-15 maximum amount provided by Subsection (c) of this section <The
1-16 penalty for each violation may be in an amount not to exceed the
1-17 maximum provided by Subsection (c) of this section>. Each day a
1-18 violation continues or occurs may be considered a separate
1-19 violation for purposes of penalty assessments.
1-20 (c) The provisions of this code subject to this section and
1-21 the applicable penalty amounts, subject to Subsection (b) of this
1-22 section, are as follows:
1-23 Provision Maximum Penalty
1-24 Chapters 13, 14, 61, 101, 102, 103, and 132 $ 500
2-1 Subchapter B, Chapter 71 $2,000
2-2 Subchapters A and C, Chapter 71
2-3 Chapters 72, 73, and 74 $5,000.
2-4 (d) In determining whether the amount of the penalty should
2-5 exceed the minimum penalty under Subsection (b) of this section,
2-6 the department shall consider:
2-7 (1) the seriousness of the violation, including but
2-8 not limited to the nature, circumstances, extent, and gravity of
2-9 the prohibited acts, and the hazard or potential hazard created to
2-10 the health or safety of the public;
2-11 (2) the economic damage to property or the environment
2-12 caused by the violation;
2-13 (3) the history of previous violations;
2-14 (4) the amount necessary to deter future violations;
2-15 (5) efforts to correct the violation; and
2-16 (6) any other matter that justice may require.
2-17 (e) If, after investigation of a possible violation and the
2-18 facts surrounding that possible violation, the department
2-19 determines that a violation has occurred, the department may issue
2-20 a violation report stating the facts on which the conclusion that a
2-21 violation occurred is based, recommending that an administrative
2-22 penalty under this section be imposed on the person charged, and
2-23 recommending the amount of that proposed penalty. The department
2-24 shall base the recommended amount of the proposed penalty on the
2-25 seriousness of the violation determined by consideration of the
2-26 factors set forth in Subsection (d) of this section, except that
2-27 the penalty may not be less than an amount equal to the greater of
3-1 an amount established by the department under Subsection (q) of
3-2 this section or the economic benefit gained by the violator through
3-3 the violation.
3-4 (q) For the purpose of determining the minimum penalty under
3-5 Subsection (b) of this section, the department shall establish an
3-6 amount for each type of violation to which this section applies
3-7 that all violators must pay even if the economic benefit gained by
3-8 the violator through the violation is less than the amount. In
3-9 setting the amount, the department shall consider the costs it
3-10 incurs in determining economic benefit under this section.
3-11 (r) The department shall adopt guidelines to refer to the
3-12 attorney general for civil action:
3-13 (1) a significant violation of a provision of this
3-14 code described by Subsection (c) of this section or a rule or order
3-15 adopted by the department under a provision of this code described
3-16 by Subsection (c) of this section; and
3-17 (2) a person who repeatedly violates a provision of
3-18 this code described by Subsection (c) of this section or a rule or
3-19 order adopted by the department under a provision of this code
3-20 described by Subsection (c) of this section.
3-21 (s) The Texas Natural Resource Conservation Commission by
3-22 rule shall define "economic benefit" for the purpose of this
3-23 section.
3-24 SECTION 2. Section 76.1555, Agriculture Code, is amended by
3-25 amending Subsections (a), (b), (c), and (d) and adding Subsections
3-26 (r), (s), and (t) to read as follows:
3-27 (a) If a person violates a provision of Chapter 75 or 76 of
4-1 this code administered by the department or a rule or order adopted
4-2 by the department under either of those chapters, the department
4-3 may assess an administrative penalty against the person as provided
4-4 by this section. The minimum penalty for a violation is an amount
4-5 equal to the greater of an amount established by the department
4-6 under Subsection (r) of this section or the economic benefit gained
4-7 by the violator through the violation. The maximum penalty for a
4-8 violation is an amount equal to the economic benefit gained by the
4-9 violator through the violation plus an amount not to exceed the
4-10 maximum amount specified by Subsection (b) of this section.
4-11 (b) Subject to Subsection (a) of this section, the <The>
4-12 penalty may be in an amount not to exceed $2,000 for each
4-13 violation, provided that the penalty shall not exceed $4,000 for
4-14 all violations related to a single incident. Subject to Subsection
4-15 (a) of this section, the <The> department shall establish a
4-16 schedule stating the types of violations possible under Chapters 75
4-17 and 76 of this code and the maximum fine applicable to each type of
4-18 violation. The department is not required to comply with Section
4-19 5, Administrative Procedure and Texas Register Act (Article
4-20 6252-13a, Vernon's Texas Civil Statutes), when establishing or
4-21 revising the schedule. The department shall publish the initial
4-22 schedule and any subsequent revision in the Texas Register before
4-23 the schedule or revision is implemented.
4-24 (c) In determining whether the amount of the penalty should
4-25 exceed the minimum penalty under Subsection (a) of this section,
4-26 the department shall consider:
4-27 (1) the seriousness of the violation, including but
5-1 not limited to the nature, circumstances, extent, and gravity of
5-2 the prohibited acts, and the hazard or potential hazard created to
5-3 the health or safety of the public;
5-4 (2) the economic damage to property or the environment
5-5 caused by the violation;
5-6 (3) the history of previous violations;
5-7 (4) the amount necessary to deter future violations;
5-8 (5) efforts to correct the violation; and
5-9 (6) any other matter that justice may require.
5-10 (d) If, after investigation of a possible violation and the
5-11 facts surrounding that possible violation, the department
5-12 determines that a violation has occurred, the department may issue
5-13 a violation report stating the facts on which the conclusion that a
5-14 violation occurred is based and may recommend that an
5-15 administrative penalty under this section be imposed on the person
5-16 charged and recommending the amount of that proposed penalty. The
5-17 department shall base the recommended amount of the proposed
5-18 penalty on the seriousness of the violation determined by
5-19 consideration of the factors set forth in Subsection (c) of this
5-20 section, except that the penalty may not be less than an amount
5-21 equal to the greater of an amount established by the department
5-22 under Subsection (r) of this section or the economic benefit gained
5-23 by the violator through the violation.
5-24 (r) For the purpose of determining the minimum penalty under
5-25 Subsection (a) of this section, the department shall establish an
5-26 amount for each type of violation to which this section applies
5-27 that all violators must pay even if the economic benefit gained by
6-1 the violator through the violation is less than the amount. In
6-2 setting the amount, the department shall consider the costs it
6-3 incurs in determining economic benefit under this section.
6-4 (s) The department shall adopt guidelines to refer to the
6-5 attorney general for civil action:
6-6 (1) a significant violation of this chapter or Chapter
6-7 75 of this code or of a rule or order adopted under those chapters;
6-8 and
6-9 (2) a person who repeatedly violates this chapter or
6-10 Chapter 75 of this code or a rule or order adopted under those
6-11 chapters.
6-12 (t) The Texas Natural Resource Conservation Commission by
6-13 rule shall define "economic benefit" for the purpose of this
6-14 section.
6-15 SECTION 3. Section 242.066, Health and Safety Code, is
6-16 amended to read as follows:
6-17 Sec. 242.066. Administrative Penalty. (a) The department
6-18 may assess a civil penalty against a person who violates this
6-19 chapter or a rule or order adopted or license issued under this
6-20 chapter.
6-21 (b) The minimum penalty for a violation is an amount equal
6-22 to the greater of an amount established by the department under
6-23 Subsection (f) or the economic benefit gained by the violator
6-24 through the violation. The maximum penalty for a violation is an
6-25 amount equal to the economic benefit gained by the violator through
6-26 the violation plus an amount not to exceed $10,000 a day <The
6-27 penalty may not exceed $10,000 a day for each violation>.
7-1 (c) Each day of a continuing violation constitutes a
7-2 separate violation.
7-3 (d) Subject to Subsection (b), the <The> board shall
7-4 establish gradations of penalties in accordance with the relative
7-5 seriousness of the violation.
7-6 (e) In determining whether the amount of a penalty should
7-7 exceed the minimum penalty under Subsection (b), the department
7-8 shall consider any matter that justice may require, including:
7-9 (1) the gradations of penalties established under
7-10 Subsection (d);
7-11 (2) the seriousness of the violation, including the
7-12 nature, circumstances, extent, and gravity of the prohibited act
7-13 and the hazard or potential hazard created by the act to the health
7-14 or safety of the public;
7-15 (3) the history of previous violations;
7-16 (4) deterrence of future violations; and
7-17 (5) efforts to correct the violation.
7-18 (f) For the purpose of determining the minimum penalty under
7-19 Subsection (b), the department shall establish an amount for each
7-20 type of violation to which this section applies that all violators
7-21 must pay even if the economic benefit gained by the violator
7-22 through the violation is less than the amount. In setting the
7-23 amount, the department shall consider the costs it incurs in
7-24 determining economic benefit under this section.
7-25 (g) The department shall adopt guidelines to refer to the
7-26 attorney general for civil action:
7-27 (1) a significant violation of this chapter or of a
8-1 rule or order adopted or license issued under this chapter; and
8-2 (2) a person who repeatedly violates this chapter or a
8-3 rule or order adopted or license issued under this chapter.
8-4 (h) The Texas Natural Resource Conservation Commission by
8-5 rule shall define "economic benefit" for the purpose of this
8-6 section.
8-7 SECTION 4. Section 242.068, Health and Safety Code, is
8-8 amended by adding Subsection (f) to read as follows:
8-9 (f) The penalty must be an amount equal to or greater than
8-10 the minimum penalty under Section 242.066.
8-11 SECTION 5. Section 361.251, Health and Safety Code, is
8-12 amended by amending Subsections (b), (c), and (d) and adding
8-13 Subsections (u), (v), and (w) to read as follows:
8-14 (b) The minimum penalty for a violation is an amount equal
8-15 to the greater of an amount established by the department under
8-16 Subsection (u) or the economic benefit gained by the violator
8-17 through the violation. The maximum penalty for a violation is an
8-18 amount equal to the economic benefit gained by the violator through
8-19 the violation plus an amount not to exceed $10,000 a day <The
8-20 amount of the penalty may not exceed $10,000 a day for a person who
8-21 violates this chapter or a rule, order, license, or permit issued
8-22 under this chapter>. Each day a violation continues may be
8-23 considered a separate violation.
8-24 (c) In determining whether the amount of the penalty should
8-25 exceed the minimum penalty under Subsection (b), the department
8-26 shall consider:
8-27 (1) the seriousness of the violation, including the
9-1 nature, circumstances, extent, and gravity of the prohibited act
9-2 and the hazard or potential hazard created to the health or safety
9-3 of the public;
9-4 (2) the history of previous violations;
9-5 (3) the amount necessary to deter future violations;
9-6 (4) efforts to correct the violation; and
9-7 (5) any other matters that justice may require.
9-8 (d) If, after examination of a possible violation and the
9-9 facts surrounding that possible violation, the department concludes
9-10 that a violation has occurred, the department may issue a
9-11 preliminary report:
9-12 (1) stating the facts that support the conclusion;
9-13 (2) recommending that a civil penalty under this
9-14 section be imposed; and
9-15 (3) recommending the amount of the penalty, which
9-16 shall be based on the seriousness of the violation as determined
9-17 from the facts surrounding the violation, except that the penalty
9-18 may not be less than an amount equal to the greater of an amount
9-19 established by the department under Subsection (b) or the economic
9-20 benefit gained by the violator through the violation.
9-21 (u) For the purpose of determining the minimum penalty under
9-22 Subsection (b), the department shall establish an amount for each
9-23 type of violation to which this section applies that all violators
9-24 must pay even if the economic benefit gained by the violator
9-25 through the violation is less than the amount. In setting the
9-26 amount, the department shall consider the costs it incurs in
9-27 determining economic benefit under this section.
10-1 (v) The department shall adopt guidelines to refer to the
10-2 attorney general for civil action:
10-3 (1) a significant violation of a provision of this
10-4 chapter that is under the department's jurisdiction or a rule
10-5 adopted by the board of health or order, license, or permit issued
10-6 by the department under this chapter; and
10-7 (2) a person who repeatedly violates a provision of
10-8 this chapter that is under the department's jurisdiction or a rule
10-9 adopted by the board of health or order, license, or permit issued
10-10 by the department under this chapter.
10-11 (w) The commission by rule shall define "economic benefit"
10-12 for the purpose of this section.
10-13 SECTION 6. Section 361.252, Health and Safety Code, is
10-14 amended by amending Subsections (b), (c), (d), (h), and (o) and
10-15 adding Subsections (r), (s), and (t) to read as follows:
10-16 (b) The minimum penalty for a violation is an amount equal
10-17 to the greater of an amount established by the commission under
10-18 Subsection (r) or the economic benefit gained by the violator
10-19 through the violation. The maximum penalty for a violation is an
10-20 amount equal to the economic benefit gained by the violator through
10-21 the violation plus an amount not to exceed $10,000 a day <The
10-22 amount of the penalty may not exceed $10,000 a day for a person who
10-23 violates this chapter or a rule, order, or permit issued under this
10-24 chapter>. Each day a violation continues may be considered a
10-25 separate violation.
10-26 (c) In determining whether the amount of the penalty should
10-27 exceed the minimum penalty under Subsection (b), the commission
11-1 shall consider:
11-2 (1) the nature, circumstances, extent, duration, and
11-3 gravity of the prohibited act with special emphasis on the hazard
11-4 or potential hazard created to the health or safety of the public;
11-5 (2) the impact of the violation on a receiving stream
11-6 or underground water reservoir, on the property owners along a
11-7 receiving stream or underground water reservoir, and on water users
11-8 of a receiving stream or underground water reservoir;
11-9 (3) with respect to the alleged violator:
11-10 (A) the history and extent of previous
11-11 violations;
11-12 (B) the degree of culpability, including whether
11-13 the violation was attributable to mechanical or electrical failures
11-14 and whether the violation could have been reasonably anticipated
11-15 and avoided;
11-16 (C) the demonstrated good faith, including
11-17 actions taken by the alleged violator to rectify the cause of the
11-18 violation; and
11-19 (D) <economic benefit gained by the violation;
11-20 and>
11-21 <(E)> the amount necessary to deter future
11-22 violations; and
11-23 (4) any other matters that justice may require.
11-24 (d) If, after examination of a possible violation and the
11-25 facts surrounding that possible violation, the executive director
11-26 concludes that a violation has occurred, the executive director may
11-27 issue a preliminary report:
12-1 (1) stating the facts that support the conclusion;
12-2 (2) recommending that a civil penalty under this
12-3 section be imposed; and
12-4 (3) recommending the proposed <amount of the> penalty
12-5 in an amount equal to or greater than the minimum penalty under
12-6 Subsection (b), considering<, which shall be based on> the factors
12-7 prescribed by Subsection (c), including an analysis of each factor
12-8 for the commission.
12-9 (h) If the person charged requests or the commission orders
12-10 a hearing, the commission shall order and shall give notice of the
12-11 hearing. The commission by order may find that a violation has
12-12 occurred and may assess a civil penalty, may find that a violation
12-13 has occurred but that no penalty should be assessed, or may find
12-14 that no violation has occurred. In making a penalty decision, the
12-15 commission shall determine the economic benefit gained by the
12-16 violator through the violation and analyze each factor prescribed
12-17 by Subsection (c). All proceedings under this subsection are
12-18 subject to the Administrative Procedure and Texas Register Act
12-19 (Article 6252-13a, Vernon's Texas Civil Statutes).
12-20 (o) Subject to Subsection (b), the <The> commission may
12-21 compromise, modify, or remit, with or without conditions, a civil
12-22 penalty imposed under this section.
12-23 (r) For the purpose of determining the minimum penalty under
12-24 Subsection (b), the commission shall establish an amount for each
12-25 type of violation to which this section applies that all violators
12-26 must pay even if the economic benefit gained by the violator
12-27 through the violation is less than the amount. In setting the
13-1 amount, the commission shall consider the costs it incurs in
13-2 determining economic benefit under this section.
13-3 (s) The commission shall adopt guidelines to refer to the
13-4 attorney general for civil action:
13-5 (1) a significant violation of this chapter or a rule
13-6 or order adopted under this chapter concerning solid waste that is
13-7 under the commission's jurisdiction or a solid waste permit or
13-8 registration issued by the commission under this chapter; and
13-9 (2) a person who repeatedly violates this chapter or a
13-10 rule or order adopted under this chapter concerning solid waste
13-11 that is under the commission's jurisdiction or a solid waste permit
13-12 or registration issued by the commission under this chapter.
13-13 (t) The commission by rule shall define "economic benefit"
13-14 for the purpose of this section.
13-15 SECTION 7. Section 382.088, Health and Safety Code, is
13-16 amended by amending Subsections (b), (c), and (d) and adding
13-17 Subsections (j), (k), and (l) to read as follows:
13-18 (b) The minimum penalty for a violation is an amount equal
13-19 to the greater of an amount established by the board under
13-20 Subsection (j) or the economic benefit gained by the violator
13-21 through the violation. The maximum penalty for a violation is an
13-22 amount equal to the economic benefit gained by the violator through
13-23 the violation plus an amount not to exceed $10,000 a day <The
13-24 penalty for each violation may not exceed $10,000 a day for each
13-25 violation>. Each day that a continuing violation occurs may be
13-26 considered a separate violation.
13-27 (c) In determining whether the amount of the penalty should
14-1 exceed the minimum penalty under Subsection (b), the board shall
14-2 consider:
14-3 (1) the seriousness of the violation, including the
14-4 nature, circumstances, extent, and gravity of the prohibited acts
14-5 and the hazard or potential hazard to the public health or safety;
14-6 (2) the history of previous violations;
14-7 (3) the amount necessary to deter future violations;
14-8 (4) efforts to correct the violation; and
14-9 (5) any other matters that justice may require.
14-10 (d) If the executive director, after an investigation,
14-11 concludes that a violation has occurred, the executive director may
14-12 issue a preliminary report:
14-13 (1) stating the facts that support the conclusion;
14-14 (2) recommending that a civil penalty under this
14-15 section be imposed; and
14-16 (3) recommending the proposed <amount of the> penalty
14-17 in an amount equal to or greater than the minimum penalty under
14-18 Subsection (b), considering the factors prescribed by Subsection
14-19 (c), including an analysis of each factor for the board.
14-20 (j) For the purpose of determining the minimum penalty under
14-21 Subsection (b), the board shall establish an amount for each type
14-22 of violation to which this section applies that all violators must
14-23 pay even if the economic benefit gained by the violator through the
14-24 violation is less than the amount. In setting the amount, the
14-25 board shall consider the costs it incurs in determining economic
14-26 benefit under this section.
14-27 (k) The board shall adopt guidelines to refer to the
15-1 attorney general for civil action:
15-2 (1) a significant violation of this chapter or of a
15-3 rule or order adopted or permit issued under this chapter; and
15-4 (2) a person who repeatedly violates this chapter or a
15-5 rule or order adopted or permit issued under this chapter.
15-6 (l) The board by rule shall define "economic benefit" for
15-7 the purpose of this section.
15-8 SECTION 8. Section 401.384, Health and Safety Code, is
15-9 amended by amending Subsections (b) and (c) and adding Subsections
15-10 (d), (e), and (f) to read as follows:
15-11 (b) The minimum penalty for a violation is an amount equal
15-12 to the greater of an amount established by the board under
15-13 Subsection (d) or the economic benefit gained by the violator
15-14 through the violation. The maximum penalty for a violation is an
15-15 amount equal to the economic benefit gained by the violator through
15-16 the violation plus an amount not to exceed $10,000 a day <The
15-17 penalty for each violation may not exceed $10,000 a day for a
15-18 person who violates this chapter or a rule, order, license, or
15-19 registration issued under this chapter>. Each day a violation
15-20 continues may be considered a separate violation.
15-21 (c) In determining whether the amount of the penalty should
15-22 exceed the minimum penalty under Subsection (b), the department
15-23 shall consider:
15-24 (1) the seriousness of the violation, including the
15-25 nature, circumstances, extent, and gravity of the prohibited acts
15-26 and the hazard or potential hazard created to the public health or
15-27 safety;
16-1 (2) the history of previous violations;
16-2 (3) the amount necessary to deter future violations;
16-3 (4) efforts to correct the violation; and
16-4 (5) any other matters that justice requires.
16-5 (d) For the purpose of determining the minimum penalty under
16-6 Subsection (b), the department shall establish an amount for each
16-7 type of violation to which this section applies that all violators
16-8 must pay even if the economic benefit gained by the violator
16-9 through the violation is less than the amount. In setting the
16-10 amount, the department shall consider the costs it incurs in
16-11 determining economic benefit under this section.
16-12 (e) The department shall adopt guidelines to refer to the
16-13 attorney general for civil action:
16-14 (1) a significant violation of this chapter, a rule or
16-15 order adopted under this chapter, or a condition of a license or
16-16 registration issued under this chapter; and
16-17 (2) a person who repeatedly violates this chapter, a
16-18 rule or order adopted under this chapter, or a condition of a
16-19 license or registration issued under this chapter.
16-20 (f) The Texas Natural Resource Conservation Commission by
16-21 rule shall define "economic benefit" for the purpose of this
16-22 section.
16-23 SECTION 9. Section 401.388, Health and Safety Code, is
16-24 amended by adding Subsection (g) to read as follows:
16-25 (g) The penalty must be an amount equal to or greater than
16-26 the minimum penalty under Section 401.384.
16-27 SECTION 10. Section 431.054, Health and Safety Code, is
17-1 amended by amending Subsections (b) and (c) and adding Subsections
17-2 (e), (f), and (g) to read as follows:
17-3 (b) In determining whether the amount of the penalty should
17-4 exceed the minimum penalty under Subsection (c), the commissioner
17-5 shall consider:
17-6 (1) the person's previous violations;
17-7 (2) the seriousness of the violation;
17-8 (3) any hazard to the health and safety of the public;
17-9 (4) the person's demonstrated good faith; and
17-10 (5) such other matters as justice may require.
17-11 (c) The minimum penalty for a violation is an amount equal
17-12 to the greater of an amount established by the commissioner under
17-13 Subsection (e) or the economic benefit gained by the violator
17-14 through the violation. The maximum penalty for a violation is an
17-15 amount equal to the economic benefit gained by the violator through
17-16 the violation plus an amount not to exceed $25,000 a day <The
17-17 penalty may not exceed $25,000 a day for each violation>.
17-18 (e) For the purpose of determining the minimum penalty under
17-19 Subsection (c), the commissioner shall establish an amount for each
17-20 type of violation to which this section applies that all violators
17-21 must pay even if the economic benefit gained by the violator
17-22 through the violation is less than the amount. In setting the
17-23 amount, the commissioner shall consider the costs it incurs in
17-24 determining economic benefit under this section.
17-25 (f) The commissioner shall adopt guidelines to refer to the
17-26 attorney general for civil action:
17-27 (1) a significant violation of Subchapter B or of an
18-1 order adopted or registration issued under this chapter; and
18-2 (2) a person who repeatedly violates Subchapter B or
18-3 an order adopted or registration issued under this chapter.
18-4 (g) The Texas Natural Resource Conservation Commission by
18-5 rule shall define "economic benefit" for the purpose of this
18-6 section.
18-7 SECTION 11. Section 431.055, Health and Safety Code, is
18-8 amended by adding Subsection (f) to read as follows:
18-9 (f) The penalty must be an amount equal to or greater than
18-10 the minimum penalty under Section 431.054.
18-11 SECTION 12. Section 81.0531, Natural Resources Code, is
18-12 amended by amending Subsections (b) and (c) and by adding
18-13 Subsections (d), (e), and (f) to read as follows:
18-14 (b) The minimum penalty for a violation is an amount equal
18-15 to the greater of an amount established by the commission under
18-16 Subsection (d) of this section or the economic benefit gained by
18-17 the violator through the violation. The maximum penalty for a
18-18 violation is an amount equal to the economic benefit gained by the
18-19 violator through the violation plus an amount not to exceed $10,000
18-20 a day <The penalty may not exceed $10,000 a day for each
18-21 violation>. Each day a violation continues may be considered a
18-22 separate violation for purposes of penalty assessments.
18-23 (c) In determining whether the amount of the penalty should
18-24 exceed the minimum penalty under Subsection (b) of this section,
18-25 the commission shall consider the permittee's history of previous
18-26 violations, the seriousness of the violation, any hazard to the
18-27 health or safety of the public, and the demonstrated good faith of
19-1 the person charged.
19-2 (d) For the purpose of determining the minimum penalty under
19-3 Subsection (b) of this section, the commission shall establish an
19-4 amount for each type of violation to which this section applies
19-5 that all violators must pay even if the economic benefit gained by
19-6 the violator through the violation is less than the amount. In
19-7 setting the amount, the commission shall consider the costs it
19-8 incurs in determining economic benefit under this section.
19-9 (e) The commission shall adopt guidelines to refer to the
19-10 attorney general for civil action:
19-11 (1) a violation described by Subsection (a) of this
19-12 section that is significant; and
19-13 (2) a person who repeatedly commits a violation
19-14 described by Subsection (a) of this section.
19-15 (f) The Texas Natural Resource Conservation Commission by
19-16 rule shall define "economic benefit" for the purpose of this
19-17 section.
19-18 SECTION 13. Section 81.0532, Natural Resources Code, is
19-19 amended by adding Subsection (f) to read as follows:
19-20 (f) The penalty must be an amount equal to or greater than
19-21 the minimum penalty under Section 81.0531 of this code.
19-22 SECTION 14. Section 116.143, Natural Resources Code, is
19-23 amended by amending Subsections (b) and (c) and by adding
19-24 Subsections (d), (e), and (f) to read as follows:
19-25 (b) The minimum penalty for a violation is an amount equal
19-26 to the greater of an amount established by the commission under
19-27 Subsection (d) of this section or the economic benefit gained by
20-1 the violator through the violation. The maximum penalty for a
20-2 violation is an amount equal to the economic benefit gained by the
20-3 violator through the violation plus an amount not to exceed $10,000
20-4 a day <The penalty may not exceed $10,000 a day for each
20-5 violation>. Each day a violation continues may be considered a
20-6 separate violation for purposes of penalty assessments.
20-7 (c) In determining whether the amount of the penalty should
20-8 exceed the minimum penalty under Subsection (b) of this section,
20-9 the commission shall consider the person's history of previous
20-10 violations of this chapter, the seriousness of the violation, any
20-11 hazard to the health or safety of the public, and the demonstrated
20-12 good faith of the person charged.
20-13 (d) For the purpose of determining the minimum penalty under
20-14 Subsection (b) of this section, the commission shall establish an
20-15 amount for each type of violation to which this section applies
20-16 that all violators must pay even if the economic benefit gained by
20-17 the violator through the violation is less than the amount. In
20-18 setting the amount, the commission shall consider the costs it
20-19 incurs in determining economic benefit under this section.
20-20 (e) The commission shall adopt guidelines to refer to the
20-21 attorney general for civil action:
20-22 (1) a violation described by Subsection (a) of this
20-23 section that is significant; and
20-24 (2) a person who repeatedly commits a violation
20-25 described by Subsection (a) of this section.
20-26 (f) The Texas Natural Resource Conservation Commission by
20-27 rule shall define "economic benefit" for the purpose of this
21-1 section.
21-2 SECTION 15. Section 116.144, Natural Resources Code, is
21-3 amended by adding Subsection (f) to read as follows:
21-4 (f) The penalty must be an amount equal to or greater than
21-5 the minimum penalty under Section 116.143 of this code.
21-6 SECTION 16. Section 131.2661, Natural Resources Code, is
21-7 amended by amending Subsections (b) and (c) and by adding
21-8 Subsections (d), (e), and (f) to read as follows:
21-9 (b) The minimum penalty for a violation is an amount equal
21-10 to the greater of an amount established by the commission under
21-11 Subsection (d) of this section or the economic benefit gained by
21-12 the violator through the violation. The maximum penalty for a
21-13 violation is an amount equal to the economic benefit gained by the
21-14 violator through the violation plus an amount not to exceed $10,000
21-15 a day <The penalty may not exceed $10,000 a day for each
21-16 violation>. Each day a violation continues may be considered a
21-17 separate violation for purposes of penalty assessments.
21-18 (c) In determining whether the amount of the penalty should
21-19 exceed the minimum penalty under Subsection (b) of this section,
21-20 the commission shall consider the permittee's history of previous
21-21 violations of this chapter, the seriousness of the violation, any
21-22 hazard to the health or safety of the public, and the demonstrated
21-23 good faith of the permittee or person charged.
21-24 (d) For the purpose of determining the minimum penalty under
21-25 Subsection (b) of this section, the commission shall establish an
21-26 amount for each type of violation to which this section applies
21-27 that all violators must pay even if the economic benefit gained by
22-1 the violator through the violation is less than the amount. In
22-2 setting the amount, the commission shall consider the costs it
22-3 incurs in determining economic benefit under this section.
22-4 (e) The commission shall adopt guidelines to refer to the
22-5 attorney general for civil action:
22-6 (1) a violation described by Subsection (a) of this
22-7 section that is significant; and
22-8 (2) a person who repeatedly commits a violation
22-9 described by Subsection (a) of this section.
22-10 (f) The Texas Natural Resource Conservation Commission by
22-11 rule shall define "economic benefit" for the purpose of this
22-12 section.
22-13 SECTION 17. Section 131.2662, Natural Resources Code, is
22-14 amended by adding Subsection (f) to read as follows:
22-15 (f) The penalty must be an amount equal to or greater than
22-16 the minimum penalty under Section 131.2661 of this code.
22-17 SECTION 18. Section 131.303, Natural Resources Code, is
22-18 amended to read as follows:
22-19 Sec. 131.303. Injunctive Relief and Civil Penalty. If a
22-20 person violates or threatens to violate a rule, order, or permit
22-21 issued by the commission under this subchapter, the commission may
22-22 request the attorney general to institute an action to obtain a
22-23 permanent or temporary injunction, temporary restraining order, or
22-24 other appropriate order enjoining the violation or threatened
22-25 violation, or to recover a civil penalty in an amount equal to or
22-26 greater than the minimum penalty under Section 131.304 of this code
22-27 <of not more than $10,000 a day for each violation or threatened
23-1 violation>, or for both injunctive relief and civil penalty. The
23-2 action shall be brought in a court of competent jurisdiction in
23-3 Travis County, in the county in which the violation occurred, or in
23-4 the county of residence of any defendant.
23-5 SECTION 19. Section 131.304, Natural Resources Code, is
23-6 amended to read as follows:
23-7 Sec. 131.304. Administrative Penalty. (a) A person who
23-8 violates a rule, order, or permit issued by the commission under
23-9 this subchapter may be assessed a civil penalty by the commission.
23-10 (b) The minimum penalty for a violation is an amount equal
23-11 to the greater of an amount established by the commission under
23-12 Subsection (d) of this section or the economic benefit gained by
23-13 the violator through the violation. The maximum penalty for a
23-14 violation is an amount equal to the economic benefit gained by the
23-15 violator through the violation plus an amount not to exceed $10,000
23-16 a day <The penalty may not exceed $10,000 a day for each
23-17 violation>. Each day a violation continues may be considered a
23-18 separate violation for purposes of penalty assessments.
23-19 (c) In determining whether the amount of the penalty should
23-20 exceed the minimum penalty under Subsection (b) of this section,
23-21 the commission shall consider the permittee's history of previous
23-22 violations, the seriousness of the violation, any hazard to the
23-23 health or safety of the public, and the demonstrated good faith of
23-24 the person charged. The penalty shall be assessed, recovered, and
23-25 contested in accordance with the procedures provided in Sections
23-26 131.2662-131.2664 of Subchapter G of this chapter.
23-27 (d) For the purpose of determining the minimum penalty under
24-1 Subsection (b) of this section, the commission shall establish an
24-2 amount for each type of violation to which this section applies
24-3 that all violators must pay even if the economic benefit gained by
24-4 the violator through the violation is less than the amount. In
24-5 setting the amount, the commission shall consider the costs it
24-6 incurs in determining economic benefit under this section.
24-7 (e) The commission shall adopt guidelines to refer to the
24-8 attorney general for civil action:
24-9 (1) a significant violation of a rule, order, or
24-10 permit issued under this subchapter; and
24-11 (2) a person who repeatedly violates a rule, order, or
24-12 permit issued under this subchapter.
24-13 (f) The Texas Natural Resource Conservation Commission by
24-14 rule shall define "economic benefit" for the purpose of this
24-15 section.
24-16 SECTION 20. Section 141.013, Natural Resources Code, is
24-17 amended by amending Subsections (b) and (c) and by adding
24-18 Subsections (d), (e), and (f) to read as follows:
24-19 (b) The minimum penalty for a violation is an amount equal
24-20 to the greater of an amount established by the commission under
24-21 Subsection (d) of this section or the economic benefit gained by
24-22 the violator through the violation. The maximum penalty for a
24-23 violation is an amount equal to the economic benefit gained by the
24-24 violator through the violation plus an amount not to exceed
24-25 $10,000 a day <The penalty may not exceed $10,000 a day for each
24-26 violation>. Each day a violation continues may be considered a
24-27 separate violation for purposes of penalty assessments.
25-1 (c) In determining whether the amount of the penalty should
25-2 exceed the minimum penalty under Subsection (b) of this section,
25-3 the commission shall consider the person's history of previous
25-4 violations of this subchapter or the rules, the seriousness of the
25-5 violation, any hazard to the health or safety of the public, and
25-6 the demonstrated good faith of the person.
25-7 (d) For the purpose of determining the minimum penalty under
25-8 Subsection (b) of this section, the commission shall establish an
25-9 amount for each type of violation to which this section applies
25-10 that all violators must pay even if the economic benefit gained by
25-11 the violator through the violation is less than the amount. In
25-12 setting the amount, the commission shall consider the costs it
25-13 incurs in determining economic benefit under this section.
25-14 (e) The commission shall adopt guidelines to refer to the
25-15 attorney general for civil action:
25-16 (1) a violation described by Subsection (a) of this
25-17 section that is significant; and
25-18 (2) a person who repeatedly commits a violation
25-19 described by Subsection (a) of this section.
25-20 (f) The Texas Natural Resource Conservation Commission by
25-21 rule shall define "economic benefit" for the purpose of this
25-22 section.
25-23 SECTION 21. Section 141.014, Natural Resources Code, is
25-24 amended by adding Subsection (f) to read as follows:
25-25 (f) The penalty must be an amount equal to or greater than
25-26 the minimum penalty under Section 141.013 of this code.
25-27 SECTION 22. Section 13.4151, Water Code, is amended by
26-1 amending Subsections (a), (b), (c), (g), and (m) and adding
26-2 Subsections (o), (p), and (q) to read as follows:
26-3 (a) If a person, affiliated interest, or entity subject to
26-4 the jurisdiction of the commission violates this chapter or a rule
26-5 or order adopted under this chapter, the commission may assess a
26-6 penalty against that person, affiliated interest, or entity as
26-7 provided by this section. The minimum penalty for a violation is
26-8 an amount equal to the greater of an amount established by the
26-9 commission under Subsection (o) of this section or the economic
26-10 benefit gained by the violator through the violation. The maximum
26-11 penalty for a violation is an amount equal to the economic benefit
26-12 gained by the violator through the violation plus an amount not to
26-13 exceed $500 a day <The penalty may be in an amount not to exceed
26-14 $500 a day>. Each day a violation continues may be considered a
26-15 separate violation.
26-16 (b) In determining whether the amount of the penalty should
26-17 exceed the minimum penalty under Subsection (a) of this section,
26-18 the commission shall consider:
26-19 (1) the nature, circumstances, extent, duration, and
26-20 gravity of the prohibited acts or omissions;
26-21 (2) with respect to the alleged violator:
26-22 (A) the history and extent of previous
26-23 violations;
26-24 (B) the degree of culpability, including whether
26-25 the violation was attributable to mechanical or electrical failures
26-26 and whether the violation could have been reasonably anticipated
26-27 and avoided;
27-1 (C) the demonstrated good faith, including
27-2 actions taken by the person, affiliated interest, or entity to
27-3 correct the cause of the violation; and
27-4 (D) <any economic benefit gained through the
27-5 violation; and>
27-6 <(E)> the amount necessary to deter future
27-7 violations; and
27-8 (3) any other matters that justice requires.
27-9 (c) If, after examination of a possible violation and the
27-10 facts surrounding that possible violation, the executive director
27-11 concludes that a violation has occurred, the executive director may
27-12 issue a preliminary report stating the facts on which that
27-13 conclusion is based, recommending that a penalty under this section
27-14 be imposed on the person, affiliated interest, or retail public
27-15 utility charged, and recommending the amount of that proposed
27-16 penalty. The executive director shall recommend <base the
27-17 recommended amount of> the proposed penalty in an amount equal to
27-18 the greater of an amount established by the commission under
27-19 Subsection (o) of this section or the economic benefit gained by
27-20 the violator through the violation. The executive director shall
27-21 determine whether the proposed penalty should exceed the economic
27-22 benefit gained by the violator through the violation by considering
27-23 <on> the factors provided by Subsection (b) of this section, and
27-24 shall analyze each factor for the benefit of the commission.
27-25 (g) If the person, affiliated interest, or retail public
27-26 utility charged requests or the commission orders a hearing, the
27-27 commission shall call a hearing and give notice of the hearing. As
28-1 a result of the hearing, the commission by order may find that a
28-2 violation has occurred and may assess a civil penalty, may find
28-3 that a violation has occurred but that no penalty should be
28-4 assessed, or may find that no violation has occurred. All
28-5 proceedings under this subsection are subject to the Administrative
28-6 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
28-7 Civil Statutes). In making any penalty decision, the commission
28-8 shall determine the economic benefit gained by the violator through
28-9 the violation and analyze each of the factors provided by
28-10 Subsection (b) of this section.
28-11 (m) Notwithstanding any other provision of law, the
28-12 commission may compromise, modify, extend the time for payment of,
28-13 or remit, with or without condition, any penalty imposed under this
28-14 section, except that the penalty may not be less than the minimum
28-15 penalty under Subsection (a) of this section.
28-16 (o) For the purpose of determining the minimum penalty under
28-17 Subsection (a) of this section, the commission shall establish an
28-18 amount for each type of violation to which this section applies
28-19 that all violators must pay even if the economic benefit gained by
28-20 the violator through the violation is less than the amount. In
28-21 setting the amount, the commission shall consider the costs it
28-22 incurs in determining economic benefit under this section.
28-23 (p) The commission shall adopt guidelines to refer to the
28-24 attorney general for civil action:
28-25 (1) a significant violation of this chapter or of a
28-26 rule or order adopted under this chapter; and
28-27 (2) a person who repeatedly violates this chapter or a
29-1 rule or order adopted under this chapter.
29-2 (q) The commission by rule shall define "economic benefit"
29-3 for the purpose of this section.
29-4 SECTION 23. Section 26.136, Water Code, is amended by
29-5 amending Subsections (b), (c), (d), (h), and (n) and adding
29-6 Subsections (p), (q), and (r) to read as follows:
29-7 (b) The minimum penalty for a violation is an amount equal
29-8 to the greater of an amount established by the commission under
29-9 Subsection (p) of this section or the economic benefit gained by
29-10 the violator through the violation. The maximum penalty for a
29-11 violation is an amount equal to the economic benefit gained by the
29-12 violator through the violation plus an amount not to exceed $10,000
29-13 a day <The penalty may be in an amount not to exceed $10,000 a day
29-14 for a person who violates this chapter or a rule, order, or
29-15 permit>. Each day a violation continues may be considered a
29-16 separate violation for purposes of penalty assessment.
29-17 (c) In determining whether the amount of the penalty should
29-18 exceed the minimum penalty under Subsection (b) of this section,
29-19 the commission shall consider:
29-20 (1) the nature, circumstances, extent, duration, and
29-21 gravity of the prohibited acts with special emphasis on the hazard
29-22 or potential hazard created to the health or safety of the public;
29-23 (2) the impact of the violation on a receiving stream
29-24 or underground water reservoir, on the property owners along a
29-25 receiving stream or underground water reservoir, and on water users
29-26 of a receiving stream or underground water reservoir;
29-27 (3) with respect to the alleged violator:
30-1 (A) the history and extent of previous
30-2 violations;
30-3 (B) the degree of culpability, including whether
30-4 the violation was attributable to mechanical or electrical failures
30-5 and whether the violation could have been reasonably anticipated
30-6 and avoided;
30-7 (C) the demonstrated good faith, including
30-8 actions taken by the alleged violator to rectify the cause of the
30-9 violation; and
30-10 (D) <any economic benefit gained through the
30-11 violation; and>
30-12 <(E)> the amount necessary to deter future
30-13 violations; and
30-14 (4) any other matters that justice may require.
30-15 (d) If, after examination of a possible violation and the
30-16 facts surrounding that possible violation, the executive director
30-17 concludes that a violation has occurred, the executive director may
30-18 issue a preliminary report stating the facts on which he based that
30-19 conclusion, recommending that a civil penalty under this section be
30-20 imposed on the person charged, and recommending the amount of that
30-21 proposed penalty. The executive director shall recommend <base the
30-22 recommended amount of> the proposed penalty in an amount equal to
30-23 the greater of an amount established by the commission under
30-24 Subsection (p) of this section or the economic benefit gained by
30-25 the violator through the violation. The executive director shall
30-26 determine whether the proposed penalty should exceed the economic
30-27 benefit gained by the violator through the violation by considering
31-1 <on> the factors provided by Subsection (c) of this section, and
31-2 the executive director shall analyze each factor for the benefit of
31-3 the commission.
31-4 (h) If the person charged requests, or the commission
31-5 orders, a hearing, the commission shall call a hearing and give
31-6 notice of the hearing. As a result of the hearing, the commission
31-7 by order either may find that a violation has occurred and may
31-8 assess a civil penalty, may find that a violation has occurred but
31-9 that no penalty should be assessed, or may find that no violation
31-10 has occurred. All proceedings under this subsection are subject to
31-11 the Administrative Procedure and Texas Register Act (Article
31-12 6252-13a, Vernon's Texas Civil Statutes). In making any penalty
31-13 decision, the commission shall determine the economic benefit
31-14 gained by the violator through the violation and analyze each of
31-15 the factors provided by Subsection (c) of this section.
31-16 (n) Notwithstanding any other provision to the contrary, the
31-17 commission may compromise, modify, or remit, with or without
31-18 condition, any civil penalty imposed under this section, except
31-19 that the penalty may not be less than an amount equal to the
31-20 minimum penalty under Subsection (b) of this section.
31-21 (p) For the purpose of determining the minimum penalty under
31-22 Subsection (b) of this section, the commission shall establish an
31-23 amount for each type of violation to which this section applies
31-24 that all violators must pay even if the economic benefit gained by
31-25 the violator through the violation is less than the amount. In
31-26 setting the amount, the commission shall consider the costs it
31-27 incurs in determining economic benefit under this section.
32-1 (q) The commission shall adopt guidelines to refer to the
32-2 attorney general for civil action:
32-3 (1) a significant violation of this chapter or of a
32-4 rule or order adopted or permit issued under this chapter; and
32-5 (2) a person who repeatedly violates this chapter or a
32-6 rule or order adopted or permit issued under this chapter.
32-7 (r) The commission by rule shall define "economic benefit"
32-8 for the purpose of this section.
32-9 SECTION 24. Section 27.1011, Water Code, is amended by
32-10 amending Subsections (b) and (c) and adding Subsections (d), (e),
32-11 and (f) to read as follows:
32-12 (b) The minimum penalty for a violation is an amount equal
32-13 to the greater of an amount established by the railroad commission
32-14 under Subsection (d) of this section or the economic benefit gained
32-15 by the violator through the violation. The maximum penalty for a
32-16 violation is an amount equal to the economic benefit gained by the
32-17 violator through the violation plus an amount not to exceed $10,000
32-18 a day <The penalty may not exceed $10,000 a day for each
32-19 violation>. Each day a violation continues may be considered a
32-20 separate violation for purposes of penalty assessments.
32-21 (c) In determining whether the amount of the penalty should
32-22 exceed the minimum penalty under Subsection (b) of this section,
32-23 the railroad commission shall consider the permittee's history of
32-24 previous violations of this chapter, the seriousness of the
32-25 violation, any hazard to the health or safety of the public, and
32-26 the demonstrated good faith of the permittee or person charged.
32-27 (d) For the purpose of determining the minimum penalty under
33-1 Subsection (b) of this section, the railroad commission shall
33-2 establish an amount for each type of violation to which this
33-3 section applies that all violators must pay even if the economic
33-4 benefit gained by the violator through the violation is less than
33-5 the amount. In setting the amount, the railroad commission shall
33-6 consider the costs it incurs in determining economic benefit under
33-7 this section.
33-8 (e) The railroad commission shall adopt guidelines for the
33-9 referral to the attorney general for civil action:
33-10 (1) a significant violation of this chapter or a rule,
33-11 order, license, permit, or certificate issued under this chapter;
33-12 and
33-13 (2) a person who repeatedly violates this chapter or a
33-14 rule, order, license, permit, or certificate issued under this
33-15 chapter.
33-16 (f) The commission by rule shall define "economic benefit"
33-17 for the purpose of this section.
33-18 SECTION 25. Section 27.1012, Water Code, is amended by
33-19 adding Subsection (f) to read as follows:
33-20 (f) The penalty must be an amount equal to or greater than
33-21 the minimum penalty under Section 27.1011 of this code.
33-22 SECTION 26. Section 27.1015, Water Code, is amended by
33-23 amending Subsections (b), (c), (d), (h), and (n) and by adding
33-24 Subsections (p), (q), and (r) to read as follows:
33-25 (b) The minimum penalty for a violation is an amount equal
33-26 to the greater of an amount established by the commission under
33-27 Subsection (p) of this section or the economic benefit gained by
34-1 the violator through the violation. The maximum penalty for a
34-2 violation is an amount equal to the economic benefit gained by the
34-3 violator through the violation plus an amount not to exceed $10,000
34-4 a day <The penalty may be in an amount not to exceed $10,000 a day
34-5 for a person who violates this chapter or a rule, order, or
34-6 permit>. Each day a violation continues may be considered a
34-7 separate violation for purposes of penalty assessment.
34-8 (c) In determining whether the amount of the penalty should
34-9 exceed the minimum penalty under Subsection (b) of this section,
34-10 the commission shall consider:
34-11 (1) the nature, circumstances, extent, duration, and
34-12 gravity of the prohibited acts with special emphasis on the hazard
34-13 or potential hazard created to the health or safety of the public;
34-14 (2) the impact of the violation on a receiving stream
34-15 or underground water reservoir, on the property owners along a
34-16 receiving stream or underground water reservoir, and on water users
34-17 of a receiving stream or underground water reservoir;
34-18 (3) with respect to the alleged violator:
34-19 (A) the history and extent of previous
34-20 violations;
34-21 (B) the degree of culpability, including whether
34-22 the violation was attributable to mechanical or electrical failures
34-23 and whether the violation could have been reasonably anticipated
34-24 and avoided;
34-25 (C) the demonstrated good faith, including
34-26 actions taken by the alleged violator to rectify the cause of the
34-27 violation; and
35-1 (D) <any economic benefit gained through the
35-2 violation; and>
35-3 <(E)> the amount necessary to deter future
35-4 violations; and
35-5 (4) any other matters that justice may require.
35-6 (d) If, after examination of a possible violation and the
35-7 facts surrounding that possible violation, the executive director
35-8 concludes that a violation has occurred, the executive director may
35-9 issue a preliminary report stating the facts on which he based that
35-10 conclusion, recommending that a civil penalty under this section be
35-11 imposed on the person charged, and recommending the amount of that
35-12 proposed penalty. The executive director shall recommend <base the
35-13 recommended amount of> the proposed penalty in an amount equal to
35-14 the greater of an amount established by the commission under
35-15 Subsection (b) of this section or the economic benefit gained by
35-16 the violator through the violation. The executive director shall
35-17 determine whether the proposed penalty should exceed the economic
35-18 benefit gained by the violator through the violation by considering
35-19 <on> the factors provided by Subsection (c) of this section, and
35-20 the executive director shall analyze each factor for the benefit of
35-21 the commission.
35-22 (h) If the person charged requests, or the commission
35-23 orders, a hearing, the commission shall call a hearing and give
35-24 notice of the hearing. As a result of the hearing, the commission
35-25 by order either may find that a violation has occurred and may
35-26 assess a civil penalty, may find that a violation has occurred but
35-27 that no penalty should be assessed, or may find that no violation
36-1 has occurred. All proceedings under this subsection are subject to
36-2 the Administrative Procedure and Texas Register Act (Article
36-3 6252-13a, Vernon's Texas Civil Statutes). In making any penalty
36-4 decision, the commission shall determine the economic benefit
36-5 gained by the violator through the violation and analyze each of
36-6 the factors provided by Subsection (c) of this section.
36-7 (n) Notwithstanding any other provision to the contrary, the
36-8 commission may compromise, modify, or remit, with or without
36-9 condition, any civil penalty imposed under this section, except
36-10 that the penalty may not be less than the minimum penalty under
36-11 Subsection (b) of this section.
36-12 (p) For the purpose of determining the minimum penalty under
36-13 Subsection (b) of this section, the commission shall establish an
36-14 amount for each type of violation to which this section applies
36-15 that all violators must pay even if the economic benefit gained by
36-16 the violator through the violation is less than the amount. In
36-17 setting the amount, the commission shall consider the costs it
36-18 incurs in determining economic benefit under this section.
36-19 (q) The commission shall adopt guidelines to refer to the
36-20 attorney general for civil action:
36-21 (1) a significant violation of this chapter or of a
36-22 rule or order adopted or permit issued under this chapter; and
36-23 (2) a person who repeatedly violates this chapter or a
36-24 rule or order adopted or permit issued under this chapter.
36-25 (r) The commission by rule shall define "economic benefit"
36-26 for the purpose of this section.
36-27 SECTION 27. Section 28.067, Water Code, is amended by
37-1 amending Subsections (b), (c), (d), (h), and (n) and by adding
37-2 Subsections (p), (q), and (r) to read as follows:
37-3 (b) The minimum penalty for a violation is an amount equal
37-4 to the greater of an amount established by the commission under
37-5 Subsection (p) of this section or the economic benefit gained by
37-6 the violator through the violation. The maximum penalty for a
37-7 violation is an amount equal to the economic benefit gained by the
37-8 violator through the violation plus an amount not to exceed $10,000
37-9 a day <The penalty may be in an amount not to exceed $10,000 a day
37-10 for a person who knowingly violates this chapter or a rule, order,
37-11 or permit. For all other violations, the penalty may be in an
37-12 amount not to exceed $5,000 a day>. Each day a violation continues
37-13 may be considered a separate violation for purposes of penalty
37-14 assessment.
37-15 (c) In determining whether the amount of the penalty should
37-16 exceed the minimum penalty under Subsection (b) of this section,
37-17 the commission shall consider:
37-18 (1) the nature, circumstances, extent, duration, and
37-19 gravity of the prohibited acts with special emphasis on the hazard
37-20 created to the health or safety of the public;
37-21 (2) the impact of the violation on a receiving stream
37-22 or underground water reservoir, on the property owners along a
37-23 receiving stream or underground water reservoir, and on water users
37-24 of a receiving stream or underground water reservoir;
37-25 (3) with respect to the alleged violator:
37-26 (A) the history and extent of previous
37-27 violations;
38-1 (B) the degree of culpability, including whether
38-2 the violation was attributable to mechanical or electrical failures
38-3 and whether the violation could have been reasonably anticipated
38-4 and avoided;
38-5 (C) the demonstrated good faith, including
38-6 actions taken by the violator to rectify the cause of the
38-7 violation; and
38-8 (D) <any economic benefit gained through the
38-9 violation; and>
38-10 <(E)> the amount necessary to deter future
38-11 violations; and
38-12 (4) any other matters that justice may require.
38-13 (d) If, after examination of a possible violation and the
38-14 facts surrounding that possible violation, the executive director
38-15 concludes that a violation has occurred, the executive director may
38-16 issue a preliminary report stating the facts on which he based that
38-17 conclusion, recommending that a civil penalty under this section be
38-18 imposed on the person charged, and recommending the amount of that
38-19 proposed penalty. The executive director shall recommend <base the
38-20 recommended amount of> the proposed penalty in an amount equal to
38-21 the greater of an amount established by the commission under
38-22 Subsection (p) of this section or the economic benefit gained by
38-23 the violator through the violation. The executive director shall
38-24 determine whether the proposed penalty should exceed the economic
38-25 benefit gained by the violator through the violation by considering
38-26 <on> the factors set forth in Subsection (c) of this section, and
38-27 the executive director shall analyze each factor for the benefit of
39-1 the commission.
39-2 (h) If the person charged requests, or the commission
39-3 orders, a hearing, the commission shall call a hearing and give
39-4 notice of the hearing. As a result of the hearing, the commission
39-5 by order either may find that no violation has occurred, that a
39-6 violation has occurred but no penalty should be assessed, or that a
39-7 violation has occurred and a penalty should be assessed. All
39-8 proceedings under this subsection are subject to the Administrative
39-9 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
39-10 Civil Statutes). In making any penalty decision, the commission
39-11 shall determine the economic benefit gained by the violator through
39-12 the violation and analyze each of the factors set forth in
39-13 Subsection (c) of this section.
39-14 (n) Notwithstanding anything to the contrary, the commission
39-15 may compromise, modify, or remit, with or without condition, any
39-16 civil penalty imposed under this section, except that the penalty
39-17 may not be less than the minimum penalty under Subsection (b) of
39-18 this section.
39-19 (p) For the purpose of determining the minimum penalty under
39-20 Subsection (b) of this section, the commission shall establish an
39-21 amount for each type of violation to which this section applies
39-22 that all violators must pay even if the economic benefit gained by
39-23 the violator through the violation is less than the amount. In
39-24 setting the amount, the commission shall consider the costs it
39-25 incurs in determining economic benefit under this section.
39-26 (q) The commission shall adopt guidelines to refer to the
39-27 attorney general for civil action:
40-1 (1) a significant violation of this chapter or of a
40-2 rule or order adopted or permit issued under this chapter; and
40-3 (2) a person who repeatedly violates this chapter or a
40-4 rule or order adopted or permit issued under this chapter.
40-5 (r) The commission by rule shall define "economic benefit"
40-6 for the purpose of this section.
40-7 SECTION 28. Section 29.047, Water Code, is amended by
40-8 amending Subsections (b) and (c) and adding Subsections (d), (e),
40-9 and (f) to read as follows:
40-10 (b) The minimum penalty for a violation is an amount equal
40-11 to the greater of an amount established by the railroad commission
40-12 under Subsection (d) of this section or the economic benefit gained
40-13 by the violator through the violation. The maximum penalty for a
40-14 violation is an amount equal to the economic benefit gained by the
40-15 violator through the violation plus an amount not to exceed $10,000
40-16 a day <The penalty may not exceed $10,000 a day for each
40-17 violation>. Each day a violation continues may be considered a
40-18 separate violation for purposes of penalty assessments.
40-19 (c) In determining whether the amount of the penalty should
40-20 exceed the minimum penalty under Subsection (b) of this section,
40-21 the railroad commission shall consider the permittee's history of
40-22 previous violations of this chapter, the seriousness of the
40-23 violation, any hazard to the health or safety of the public, and
40-24 the demonstrated good faith of the permittee or person charged.
40-25 (d) For the purpose of determining the minimum penalty under
40-26 Subsection (b) of this section, the railroad commission shall
40-27 establish an amount for each type of violation to which this
41-1 section applies that all violators must pay even if the economic
41-2 benefit gained by the violator through the violation is less than
41-3 the amount. In setting the amount, the railroad commission shall
41-4 consider the costs it incurs in determining economic benefit under
41-5 this section.
41-6 (e) The railroad commission shall adopt guidelines to refer
41-7 to the attorney general for civil action:
41-8 (1) a significant violation of this chapter or of a
41-9 rule, order, license, permit, or certificate issued under this
41-10 chapter; and
41-11 (2) a person who repeatedly violates this chapter or a
41-12 rule, order, license, permit, or certificate issued under this
41-13 chapter.
41-14 (f) The Texas Natural Resource Conservation Commission by
41-15 rule shall define "economic benefit" for the purpose of this
41-16 section.
41-17 SECTION 29. Section 29.048, Water Code, is amended by adding
41-18 Subsection (f) to read as follows:
41-19 (f) The penalty must be an amount equal to or greater than
41-20 the minimum penalty under Section 29.047 of this code.
41-21 SECTION 30. Section 29.051, Water Code, is amended by
41-22 amending Subsection (a) and adding Subsections (c), (d), and (e) to
41-23 read as follows:
41-24 (a) A person who violates this chapter, a rule or order of
41-25 the railroad commission adopted under this chapter, or a term,
41-26 condition, or provision of a permit issued under this chapter, is
41-27 subject to a civil penalty <of not to exceed $10,000> for each
42-1 offense. The minimum penalty for a violation is an amount equal to
42-2 the greater of an amount established by the railroad commission
42-3 under Subsection (c) of this section or the economic benefit gained
42-4 by the violator through the violation. The maximum penalty for a
42-5 violation is an amount equal to the economic benefit gained by the
42-6 violator through the violation plus an amount not to exceed $10,000
42-7 a day. Each day a violation is committed is a separate offense.
42-8 (c) For the purpose of determining the minimum penalty under
42-9 Subsection (a) of this section, the railroad commission shall
42-10 establish an amount for each type of violation to which this
42-11 section applies that all violators must pay even if the economic
42-12 benefit gained by the violator through the violation is less than
42-13 the amount. In setting the amount, the railroad commission shall
42-14 consider the costs it incurs in determining economic benefit under
42-15 this section.
42-16 (d) The railroad commission shall adopt guidelines to refer
42-17 to the attorney general for civil action:
42-18 (1) a significant violation of this chapter, a rule or
42-19 order of the railroad commission adopted under this chapter, or a
42-20 term, condition, or provision of a permit issued under this
42-21 chapter; and
42-22 (2) a person who repeatedly violates this chapter, a
42-23 rule or order of the railroad commission adopted under this
42-24 chapter, or a term, condition, or provision of a permit issued
42-25 under this chapter.
42-26 (e) The Texas Natural Resource Conservation Commission by
42-27 rule shall define "economic benefit" for the purpose of this
43-1 section.
43-2 SECTION 31. Section 10B, Texas Structural Pest Control Act
43-3 (Article 135b-6, Vernon's Texas Civil Statutes), as amended by
43-4 Chapter 771, Acts of the 72nd Legislature, Regular Session, 1991,
43-5 is amended by amending Subsections (b), (c), and (d) and adding
43-6 Subsections (p), (q), and (r) to read as follows:
43-7 (b) The minimum penalty for a violation is an amount equal
43-8 to the greater of an amount established by the board under
43-9 Subsection (p) of this section or the economic benefit gained by
43-10 the violator through the violation. The maximum penalty for a
43-11 violation is an amount equal to the economic benefit gained by the
43-12 violator through the violation plus an amount not to exceed $5,000
43-13 a day <The penalty may be in an amount not to exceed $5,000 a day
43-14 for each violation>. Each day a violation continues or occurs may
43-15 be considered a separate violation for purposes of penalty
43-16 assessments.
43-17 (c) In determining whether the amount of the penalty should
43-18 exceed the minimum penalty under Subsection (b) of this section,
43-19 the board shall consider:
43-20 (1) the seriousness of the violation, including the
43-21 nature, circumstances, extent, and gravity of the prohibited acts,
43-22 and the hazard or potential hazard created to the health or safety
43-23 of the public;
43-24 (2) the economic damage to property or the environment
43-25 caused by the violation;
43-26 (3) the history of previous violations;
43-27 (4) the amount necessary to deter future violations;
44-1 (5) efforts to correct the violation; and
44-2 (6) any other matters that justice may require.
44-3 (d) If, after investigation of a possible violation and the
44-4 facts surrounding that possible violation, the executive director
44-5 determines that a violation has occurred, the executive director
44-6 may issue a violation report, stating the facts on which the
44-7 conclusion that a violation occurred is based, recommending that an
44-8 administrative penalty under this section be imposed on the person
44-9 charged and recommending the amount of that proposed penalty. The
44-10 executive director shall base the recommended amount of the
44-11 proposed penalty on the seriousness of the violation determined by
44-12 consideration of the factors set forth in Subsection (c) of this
44-13 section, except that the amount may not be less than the minimum
44-14 penalty under Subsection (b) of this section.
44-15 (p) For the purpose of determining the minimum penalty under
44-16 Subsection (b) of this section, the board shall establish an amount
44-17 for each type of violation to which this section applies that all
44-18 violators must pay even if the economic benefit gained by the
44-19 violator through the violation is less than the amount. In setting
44-20 the amount, the board shall consider the costs it incurs in
44-21 determining economic benefit under this section.
44-22 (q) The board shall adopt guidelines to refer to the
44-23 attorney general for civil action:
44-24 (1) a significant violation of this Act or a rule or
44-25 order adopted by the board; and
44-26 (2) a person who repeatedly violates this Act or a
44-27 rule or order adopted by the board.
45-1 (r) The Texas Natural Resource Conservation Commission by
45-2 rule shall define "economic benefit" for the purpose of this
45-3 section.
45-4 SECTION 32. The powers, duties, rights, and obligations
45-5 given to the Texas Natural Resource Conservation Commission by this
45-6 Act are the powers, duties, rights, and obligations of the Texas
45-7 Water Commission or its successor if:
45-8 (1) the change in name of the Texas Water Commission
45-9 to the Texas Natural Resource Conservation Commission does not take
45-10 effect as provided by Section 1.085, Chapter 3, Acts of the 72nd
45-11 Legislature, 1st Called Session, 1991;
45-12 (2) the transfer of the powers, duties, rights, and
45-13 obligations of the Texas Water Commission to the Texas Natural
45-14 Resource Conservation Commission does not take effect as provided
45-15 by Chapter 3, Acts of the 72nd Legislature, 1st Called Session,
45-16 1991; or
45-17 (3) the 73rd Legislature does not pass an Act that
45-18 becomes law and provides for the transfer of certain powers,
45-19 duties, rights, and obligations of the Texas Water Commission to
45-20 the Texas Natural Resource Conservation Commission on or before
45-21 September 1, 1993.
45-22 SECTION 33. This Act does not affect the transfer of the
45-23 rights, powers, duties, responsibilities, and functions of the
45-24 Texas Air Control Board or the Texas Department of Health to the
45-25 Texas Natural Resource Conservation Commission as provided by
45-26 Chapter 3, Acts of the 72nd Legislature, 1st Called Session, 1991.
45-27 SECTION 34. (a) This Act takes effect September 1, 1993.
46-1 (b) This Act applies only to conduct committed on or after
46-2 the effective date of this Act. Conduct committed before the
46-3 effective date of this Act is governed by the law in effect at the
46-4 time the conduct was committed and that law is continued in effect
46-5 for that purpose.
46-6 SECTION 35. The importance of this legislation and the
46-7 crowded condition of the calendars in both houses create an
46-8 emergency and an imperative public necessity that the
46-9 constitutional rule requiring bills to be read on three several
46-10 days in each house be suspended, and this rule is hereby suspended.