73R7487 MI-F
By Saunders H.B. No. 2436
Substitute the following for H.B. No. 2436:
By Jackson C.S.H.B. No. 2436
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protecting public drinking water supplies; providing
1-3 criminal, civil, and administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 341.040, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 341.040. Definitions. In this subchapter:
1-8 (1) "Board" means the commission <Texas Natural
1-9 Resource Conservation Commission>.
1-10 (2) "Commission" means the Texas Natural Resource
1-11 Conservation Commission.
1-12 (3) "Department" means the commission <Texas Natural
1-13 Resource Conservation Commission>.
1-14 (4) "Executive director" means the executive director
1-15 of the commission.
1-16 SECTION 2. Subchapter C, Chapter 341, Health and Safety
1-17 Code, is amended by adding Sections 341.041-341.047 to read as
1-18 follows:
1-19 Sec. 341.041. FEES. (a) The commission by rule may charge
1-20 a fee to a person who owns, operates, or maintains a public
1-21 drinking water supply system to recover the costs of administering
1-22 this subchapter and of providing services to public drinking water
1-23 supply systems. The commission may establish a schedule of fees.
2-1 The amount of the fees may not exceed the reasonable costs of
2-2 administering this subchapter and providing the services.
2-3 (b) The commission by rule may assess penalties and interest
2-4 for late payment of fees owed under this section by persons who
2-5 own, operate, or maintain public drinking water supply systems.
2-6 Penalties and interest established under this section may not
2-7 exceed the rates established for delinquent taxes under Sections
2-8 111.060 and 111.061, Tax Code.
2-9 Sec. 341.042. APPLICABILITY OF OTHER PENALTY PROVISIONS.
2-10 Subchapter F does not apply to this subchapter.
2-11 Sec. 341.043. CRIMINAL PENALTY. (a) A person commits an
2-12 offense if the person:
2-13 (1) violates Section 341.031;
2-14 (2) violates Section 341.032(a) or (b);
2-15 (3) violates Section 341.033(a), (b), (c), (d), (e),
2-16 or (f);
2-17 (4) constructs a drinking water supply system without
2-18 submitting completed plans and specifications as required by
2-19 Section 341.035(a);
2-20 (5) establishes a drinking water supply system without
2-21 the commission's approval as required by Section 341.035(a);
2-22 (6) violates Section 341.035(b) or (c);
2-23 (7) fails to remove a sign as required by Section
2-24 341.035(e); or
2-25 (8) violates Section 341.036.
3-1 (b) Each day of a continuing violation is a separate
3-2 offense.
3-3 (c) An offense under Subsection (a) is a Class C misdemeanor
3-4 punishable by a fine of not less than $100.
3-5 (d) If it is shown on a trial of the defendant that the
3-6 defendant has been convicted of an offense under Subsection (a)
3-7 within one year before the date on which the offense being tried
3-8 occurred, the subsequent offense under Subsection (a) is a Class B
3-9 misdemeanor.
3-10 Sec. 341.044. CIVIL ENFORCEMENT. (a) A person may not
3-11 cause, suffer, allow, or permit a violation of this subchapter or a
3-12 rule or order adopted or issued under this subchapter.
3-13 (b) A person who causes, suffers, allows, or permits a
3-14 violation of this subchapter or a rule or order adopted or issued
3-15 under this subchapter shall be assessed a civil penalty of not less
3-16 than $50 or more than $500 for each violation. Each day of a
3-17 continuing violation is a separate violation.
3-18 (c) If it is shown on a trial of the defendant that the
3-19 defendant has previously been assessed a civil penalty under this
3-20 section within one year before the date on which the violation
3-21 being tried occurred, the defendant shall be assessed a civil
3-22 penalty of not less than $50 or more than $1,000 for each
3-23 subsequent violation of this subchapter or a rule or order adopted
3-24 or issued under this subchapter. Each day of a continuing
3-25 violation is a separate violation.
4-1 (d) If it appears that a person has violated, is violating,
4-2 or is threatening to violate this subchapter or a rule or order
4-3 adopted or issued under this subchapter, the commission, a county,
4-4 or a municipality may institute a civil suit in a district court
4-5 for:
4-6 (1) injunctive relief to restrain the person from
4-7 continuing the violation or threat of violation;
4-8 (2) the assessment and recovery of a civil penalty; or
4-9 (3) both injunctive relief and a civil penalty.
4-10 (e) The commission is a necessary and indispensable party in
4-11 a suit brought by a county or municipality under this section.
4-12 (f) On the commission's request, the attorney general shall
4-13 institute a suit in the name of the state for injunctive relief, to
4-14 recover a civil penalty, or for both injunctive relief and civil
4-15 penalty.
4-16 (g) A suit under this section may be brought in Travis
4-17 County, in the county in which the defendant resides, or in the
4-18 county in which the violation or threat of violation occurs.
4-19 (h) In a suit under this section to enjoin a violation or
4-20 threat of violation of this subchapter or a rule or order adopted
4-21 or issued under this subchapter, the court shall grant the state,
4-22 county, or municipality, without bond or other undertaking, any
4-23 injunction that the facts may warrant, including a temporary
4-24 restraining order, temporary injunction after notice and hearing,
4-25 or permanent injunction.
5-1 (i) A civil penalty recovered in a suit brought under this
5-2 section by a county or municipality shall be equally divided
5-3 between:
5-4 (1) the state; and
5-5 (2) the county or municipality that first brought the
5-6 suit.
5-7 Sec. 341.045. ADMINISTRATIVE PENALTY. (a) If a person
5-8 causes, suffers, allows, or permits a violation of this subchapter
5-9 or a rule or order adopted or issued under this subchapter, the
5-10 commission may assess a penalty against that person as provided by
5-11 this section. The penalty may not be less than $50 or more than
5-12 $500 for each violation. Each day of a continuing violation is a
5-13 separate violation.
5-14 (b) In determining the amount of a penalty, the commission
5-15 shall consider:
5-16 (1) the nature of the circumstances, extent, duration,
5-17 and gravity of the prohibited acts or omissions;
5-18 (2) with respect to the alleged violator:
5-19 (A) the history and extent of previous
5-20 violations;
5-21 (B) the degree of culpability, including whether
5-22 the violation was attributable to mechanical or electrical failures
5-23 and whether the violation could have been reasonably anticipated
5-24 and avoided;
5-25 (C) the demonstrated good faith, including
6-1 actions taken by the person to correct the cause of the violation;
6-2 (D) any economic benefit gained through the
6-3 violation; and
6-4 (E) the amount necessary to deter future
6-5 violations; and
6-6 (3) any other matters that justice requires.
6-7 (c) If, after examination of a possible violation and the
6-8 facts surrounding that possible violation, the executive director
6-9 concludes that a violation has occurred, the executive director may
6-10 issue a preliminary report stating the facts on which that
6-11 conclusion is based, recommending that a penalty under this section
6-12 be imposed on the person, and recommending the amount of that
6-13 proposed penalty. The executive director shall determine the
6-14 recommended amount of the proposed penalty according to the factors
6-15 stated in Subsection (b) and shall consider each factor for the
6-16 benefit of the commission.
6-17 (d) Not later than the 10th day after the date on which the
6-18 preliminary report is issued, the executive director shall give
6-19 written notice of the report to the person charged with the
6-20 violation. The notice shall include a brief summary of the
6-21 charges, a statement of the amount of the penalty recommended, and
6-22 a statement of the right of the person charged to a hearing on the
6-23 occurrence of the violation, the amount of the penalty, or both.
6-24 (e) Not later than the 20th day after the date on which
6-25 notice is received, the person charged may give the commission
7-1 written consent to the executive director's report, including the
7-2 recommended penalty, or may make a written request for a hearing.
7-3 (f) If the person charged with the violation consents to the
7-4 penalty recommended by the executive director or fails to timely
7-5 respond to the notice, the commission by order shall assess that
7-6 penalty or order a hearing to be held on the findings and
7-7 recommendations in the executive director's report. If the
7-8 commission assesses a penalty, the commission shall give written
7-9 notice to the person charged of its decision.
7-10 (g) If the person charged requests or the commission orders
7-11 a hearing, the commission shall call a hearing and give notice of
7-12 the hearing. As a result of the hearing, the commission by order
7-13 may find that a violation has occurred and may assess a civil
7-14 penalty, may find that a violation has occurred but that no penalty
7-15 should be assessed, or may find that no violation has occurred.
7-16 All proceedings under this subsection are subject to the
7-17 Administrative Procedure and Texas Register Act (Article 6252-13a,
7-18 Vernon's Texas Civil Statutes). In making any penalty decision,
7-19 the commission shall consider each of the factors stated in
7-20 Subsection (b).
7-21 (h) The commission shall give notice of its decision to the
7-22 person charged, and if the commission finds that a violation has
7-23 occurred and has assessed a penalty, the commission shall give
7-24 written notice to the person charged of its findings, of the amount
7-25 of the penalty, and of the person's right to judicial review of the
8-1 commission's order. If the commission is required to give notice
8-2 of a penalty under this subsection or Subsection (f), the
8-3 commission shall file notice of its decision with the Texas
8-4 Register not later than the 10th day after the date on which the
8-5 decision is adopted.
8-6 (i) Not later than the 30th day after the date on which the
8-7 commission's order is final under Section 16(c), Administrative
8-8 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
8-9 Civil Statutes), the person charged with the penalty shall:
8-10 (1) pay the penalty in full; or
8-11 (2) if the person seeks judicial review of the fact of
8-12 the violation, the amount of the penalty, or both:
8-13 (A) forward the amount of the penalty to the
8-14 commission for placement in an escrow account; or
8-15 (B) post with the commission a supersedeas bond
8-16 in a form approved by the commission for the amount of the penalty
8-17 to be effective until all judicial review of the order or decision
8-18 is final.
8-19 (j) If the person charged fails to forward the money for
8-20 escrow or post the bond as required by Subsection (i), the
8-21 commission or the executive director may refer the matter to the
8-22 attorney general for enforcement.
8-23 Sec. 341.046. PENALTIES CUMULATIVE. All penalties accruing
8-24 under this subchapter are cumulative of all other remedies, and a
8-25 suit for recovery of any penalty does not bar or affect the
9-1 recovery of any other penalty or bar any criminal prosecution
9-2 against a person or an officer, director, agent, or employee of
9-3 that person.
9-4 Sec. 341.047. RULES. The commission shall adopt and enforce
9-5 rules necessary to carry out its powers and duties under this
9-6 subchapter.
9-7 SECTION 3. Sections 341.042-341.046, Health and Safety Code,
9-8 as added by this Act, apply to an offense committed or a violation
9-9 that occurred on or after the effective date of this Act. An
9-10 offense committed or a violation that occurred before that date is
9-11 governed by the law in effect at the time the offense was committed
9-12 or the violation occurred, and the former law is continued in
9-13 effect for that purpose. An offense is committed or a violation
9-14 occurs before the effective date of this Act if any element of the
9-15 offense or violation is committed or occurs before the effective
9-16 date of this Act.
9-17 SECTION 4. This Act takes effect September 1, 1993.
9-18 SECTION 5. The importance of this legislation and the
9-19 crowded condition of the calendars in both houses create an
9-20 emergency and an imperative public necessity that the
9-21 constitutional rule requiring bills to be read on three several
9-22 days in each house be suspended, and this rule is hereby suspended.