By Saunders H.B. No. 2436
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protecting public drinking water supplies.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 341.040, Health and Safety Code, is
1-5 amended to read as follows:
1-6 Sec. 341.040. DEFINITIONS. In this subchapter:
1-7 (1) "Board" means the commission <Texas Natural Resource
1-8 Conservation Commission>.
1-9 (2) "Commission" means the Texas Natural Resource
1-10 Conservation Commission.
1-11 (3) "Department" means the commission <Texas Natural
1-12 Resource Conservation Commission>.
1-13 SECTION 2. Subchapter C, Chapter 341, Health and Safety
1-14 Code, is amended by adding Sections 341.041 to 341.050 to read as
1-15 follows:
1-16 Sec. 341.041. FEES. (a) The commission by rule may charge
1-17 fees to a person who owns, operates, or maintains a public drinking
1-18 water supply system to recover the costs of administering this
1-19 subchapter and of providing services to public drinking water
1-20 supply systems. The commission may establish a schedule of fees.
1-21 The amount of the fees may not exceed the reasonable costs of
1-22 administering this subchapter and providing the services.
1-23 (b) The commission by rule may assess penalties and interest
2-1 for late payment of fees owed by persons who own, operate, or
2-2 maintain public drinking water supply systems. Penalties and
2-3 interest established under this section may not exceed the rates
2-4 established for delinquent taxes under Sections 111.060-111.061,
2-5 Tax Code.
2-6 (Sections 341.042 to 341.045 reserved for expansion.
2-7 Sec. 341.046. APPLICABILITY OF OTHER SUBCHAPTER. Subchapter
2-8 F does not apply to this subchapter.
2-9 Sec. 341.047. CRIMINAL PENALTY. (a) A person commits an
2-10 offense if the person:
2-11 (1) violates a provision of Section 341.031;
2-12 (2) violates a provision of Section 341.032(a) or (b);
2-13 (3) violates a provision of Section 341.033(a)-(f);
2-14 (4) constructs a drinking water supply system without
2-15 submitting completed plans and specifications as required by
2-16 Section 341.035(a);
2-17 (5) establishes a drinking water supply system without
2-18 the commission's approval as required by Section 341.035(a);
2-19 (6) violates a provision of Section 341.035(b) or (c);
2-20 (7) fails to remove a sign as required by Section
2-21 341.035(e); or
2-22 (8) violates a provision of Section 341.036.
2-23 (b) An offense under Subsection (a) is a Class C misdemeanor
2-24 punishable by a fine of not less than $100.
2-25 (c) If it is shown on a trial of the defendant that the
3-1 defendant has been convicted of an offense under Subsection (a)
3-2 within a year before the date on which the offense being tried
3-3 occurred, the subsequent offense under Subsection (a) is a Class B
3-4 misdemeanor.
3-5 (d) Each day of a continuing violation is a separate
3-6 offense.
3-7 Sec. 341.048. CIVIL ENFORCEMENT. (a) A person may not
3-8 cause, suffer, allow, or permit a violation of this subchapter or a
3-9 rule or order adopted under this subchapter.
3-10 (b) A person who causes, suffers, allows, or permits a
3-11 violation of Subsection (a) shall be assessed a civil penalty of
3-12 not less than $50 nor more than $500. Each day of a continuing
3-13 violation is a separate offense.
3-14 (c) If it is shown on a trial of the defendant that the
3-15 defendant has previously been assessed a civil penalty under this
3-16 section within a year before the date on which the violation being
3-17 tried occurred, the defendant shall be assessed a civil penalty of
3-18 not less than $50 nor more than $1,000 for each subsequent
3-19 violation of Subsection (a). Each day of a continuing violation is
3-20 a separate violation.
3-21 (d) If it appears that a person has violated, is violating,
3-22 or threatens to violate Subsection (a), the commission, a county,
3-23 or a municipality may institute a civil suit in a district court
3-24 for:
3-25 (1) injunctive relief to restrain the person from
4-1 continuing the violation or threat of violation;
4-2 (2) the assessment and recovery of a civil penalty; or
4-3 (3) both injunctive relief and a civil penalty.
4-4 (e) The commission is a necessary and indispensable party in
4-5 a suit brought by a county or municipality under this section.
4-6 (f) On the commission's request, the attorney general shall
4-7 institute a suit in the name of the state for injunctive relief, to
4-8 recover a civil penalty, or for both injunctive relief and civil
4-9 penalty.
4-10 (g) The suit may be brought in Travis County, in the county
4-11 in which the defendant resides, or in the county in which the
4-12 violation or threat of violation occurs.
4-13 (h) In a suit under this section to enjoin a violation or
4-14 threat of violation of Subsection (a), the court shall grant the
4-15 state, county, or municipality, without bond or other undertaking,
4-16 any injunction that the facts may warrant, including temporary
4-17 restraining orders, temporary injunctions after notice and hearing,
4-18 and permanent injunctions.
4-19 (i) Civil penalties recovered in a suit brought under this
4-20 section by a county or municipality shall be equally divided
4-21 between:
4-22 (1) the state; and
4-23 (2) the county or municipality that first brought the
4-24 suit.
4-25 Sec. 341.049. ADMINISTRATIVE PENALTY. (a) If a person
5-1 causes, suffers, allows, or permits a violation of this subchapter
5-2 or a rule or order adopted under this subchapter, the commission
5-3 may assess a penalty against that person as provided by this
5-4 section. The penalty shall not be less than $50 nor more than $500
5-5 for each violation. Each day of a continuing violation may be
5-6 considered a separate violation.
5-7 (b) In determining the amount of the penalty, the commission
5-8 shall consider:
5-9 (1) the nature of the circumstances, extent, duration,
5-10 and gravity of the prohibited acts or omissions;
5-11 (2) with respect to the alleged violator:
5-12 (A) the history and extent of previous violations;
5-13 (B) the degree of culpability, including whether the
5-14 violation was attributable to mechanical or electrical failures and
5-15 whether the violation could have been reasonably anticipated and
5-16 avoided;
5-17 (C) the demonstrated good faith, including actions
5-18 taken by the person to correct the cause of the violation;
5-19 (D) any economic benefit gained through the violation;
5-20 and
5-21 (E) the amount necessary to deter future violations;
5-22 and
5-23 (3) any other matters that justice requires.
5-24 (c) If, after examination of a possible violation and the
5-25 facts surrounding that possible violation, the executive director
6-1 concludes that a violation has occurred, the executive director may
6-2 issue a preliminary report stating the facts on which that
6-3 conclusion is based, recommending that a penalty under this section
6-4 be imposed on the person, and recommending the amount of that
6-5 proposed penalty. The executive director shall base the
6-6 recommended amount of the proposed penalty on the factors provided
6-7 by Subsection (b) and shall consider each factor for the benefit of
6-8 the commission.
6-9 (d) Not later than the 10th day after the date on which the
6-10 preliminary report is issued, the executive director shall give
6-11 written notice of the report to the person charged with the
6-12 violation. The notice shall include a brief summary of the
6-13 charges, a statement of the amount of the penalty recommended, and
6-14 a statement of the right of the person charged to a hearing on the
6-15 occurrence of the violation, the amount of the penalty, or both.
6-16 (e) Not later than the 20th day after the date on which
6-17 notice is received, the person charged may give the commission
6-18 written consent to the executive director's report, including the
6-19 recommended penalty, or may make a written request for a hearing.
6-20 (f) If the person charged with the violation consents to the
6-21 penalty recommended by the executive director or fails to timely
6-22 respond to the notice, the commission by order shall assess that
6-23 penalty or order a hearing to be held on the findings and
6-24 recommendations in the executive director's report. If the
6-25 commission assesses a penalty, the commission shall give written
7-1 notice to the person charged of its decision.
7-2 (g) If the person charged requests or the commission orders
7-3 a hearing, the commission shall call a hearing and give notice of
7-4 the hearing. As a result of the hearing, the commission by order
7-5 may find that a violation has occurred and may assess a civil
7-6 penalty, may find that a violation has occurred but that no penalty
7-7 should be assess, or may find that no violation has occurred. All
7-8 proceedings under this subsection are subject to the Administrative
7-9 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
7-10 Civil Statutes). In making any penalty decision, the commission
7-11 shall consider each of the factors provided by Subsection (b).
7-12 (h) The commission shall give notice of its decision to the
7-13 person charged, and if the commission finds that a violation has
7-14 occurred and has assessed a penalty, the commission shall give
7-15 written notice to the person charged of its findings, of the amount
7-16 of the penalty, and of the person's right to judicial review of the
7-17 commission's order. If the commission is required to give notice
7-18 of a penalty under this subsection or Subsection (f), the
7-19 commission shall file notice of its decision with the Texas
7-20 Register not later than the 10th day after the date on which the
7-21 decision is adopted.
7-22 (i) Within a 30-day period immediately following the day on
7-23 which the commission's order is final, as provided by Section
7-24 16(c), Administrative Procedure and Texas Register Act (Article
7-25 6252-13a, Vernon's Texas Civil Statutes), the person charged with
8-1 the penalty shall pay the penalty in full or file a petition for
8-2 judicial review. If the person seeks judicial review, the person
8-3 shall forward the amount of the penalty to the commission for
8-4 placement in an escrow account or post with the commission a
8-5 supersedeas bond in a form approved by the commission for the
8-6 amount of the penalty, the bond to be effective until judicial
8-7 review of the order or decision is final.
8-8 (j) If the person charged fails to forward the money for
8-9 escrow or post the bond as provided by Subsection (i), the
8-10 commission or the executive director may refer the matter to the
8-11 attorney general for enforcement.
8-12 Sec. 341.050. PENALTIES CUMULATIVE. All penalties accruing
8-13 under this subchapter are cumulative of all other remedies and a
8-14 suit for recovery of any penalty does not bar or affect the
8-15 recovery of any other penalty or bar any criminal prosecution
8-16 against a person or any officer, director, agent, or employee of
8-17 that person.
8-18 (Sections 341.051 <341.041> to 341.060 reserved for expansion.)
8-19 SECTION 3. Section 341.046 through Section 341.050 enacted
8-20 by this Act apply to offenses committed on or after the effective
8-21 date of this Act. Offenses committed before the effective date of
8-22 this Act are governed by the previous law, and that law is
8-23 continued in effect for that purpose. An offense is committed
8-24 before the effective date of this Act if any element of the offense
8-25 is committed before the effective date of this Act.
9-1 SECTION 4. The importance of this legislation and the
9-2 crowded condition of the calendars in both houses create an
9-3 emergency and an imperative public necessity that the
9-4 constitutional rule requiring bills to be read on three several
9-5 days in each house be suspended, and this rule is hereby suspended.