By: Parker S.B. No. 1041
A BILL TO BE ENTITLED
AN ACT
1-1 relating to protecting public drinking water supplies; creating
1-2 offenses and providing fees and penalties.
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
1-8 Resource 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 through 341.050 to read
1-15 as 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 and
2-5 111.061, Tax Code.
2-6 (Sections 341.042 to 341.045 reserved for expansion
2-7 Sec. 341.046. NONAPPLICABILITY OF SUBCHAPTER F. 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 under this subchapter shall be assessed a civil penalty
3-12 of not less than $50 nor more than $500 for each violation. Each
3-13 day of a continuing violation is a separate violation.
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 under this subchapter. Each day of a continuing
3-20 violation is a separate violation.
3-21 (d) If it appears that a person has violated, is violating,
3-22 or threatens to violate a provision under this subchapter, the
3-23 commission, a county, or a municipality may institute a civil suit
3-24 in a district court 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 this subchapter, 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 and the extent,
5-10 duration, 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
5-13 violations;
5-14 (B) the degree of culpability, including whether
5-15 the violation was attributable to mechanical or electrical failures
5-16 and whether the violation could have been reasonably anticipated
5-17 and avoided;
5-18 (C) the demonstrated good faith, including
5-19 actions taken by the person to correct the cause of the violation;
5-20 (D) any economic benefit gained through the
5-21 violation; and
5-22 (E) the amount necessary to deter future
5-23 violation; and
5-24 (3) any other matters that justice requires.
5-25 (c) If, after examination of a possible violation and the
6-1 facts surrounding that possible violation, the executive director
6-2 of the commission concludes that a violation has occurred, the
6-3 executive director may issue a preliminary report stating the facts
6-4 on which that conclusion is based, recommending that a penalty
6-5 under this section be imposed on the person, and recommending the
6-6 amount of that proposed penalty. The executive director shall base
6-7 the recommended amount of the proposed penalty on the factors
6-8 provided by Subsection (b) and shall consider each factor for the
6-9 benefit of the commission.
6-10 (d) Not later than the 10th day after the date on which the
6-11 preliminary report is issued, the executive director of the
6-12 commission shall give written notice of the report to the person
6-13 charged with the violation. The notice shall include a brief
6-14 summary of the charges, a statement of the amount of the penalty
6-15 recommended, and a statement of the right of the person charged to
6-16 a hearing on the occurrence of the violation, the amount of the
6-17 penalty, or both.
6-18 (e) Not later than the 20th day after the date on which
6-19 notice is received, the person charged may give the commission
6-20 written consent to the executive director's report including the
6-21 recommended penalty or may make a written request for a hearing.
6-22 (f) If the person charged with the violation consents to the
6-23 penalty recommended by the executive director of the commission or
6-24 fails to timely respond to the notice, the commission by order
6-25 shall assess that penalty or order a hearing to be held on the
7-1 findings and recommendations in the executive director's report.
7-2 If the commission assesses a penalty, the commission shall give
7-3 written notice to the person charged of its decision.
7-4 (g) If the person charged requests or the commission orders
7-5 a hearing, the commission shall call a hearing and give notice of
7-6 the hearing. As a result of the hearing, the commission by order
7-7 may find that a violation has occurred and may assess a civil
7-8 penalty, may find that a violation has occurred but that no penalty
7-9 should be assessed, or may find that no violation has occurred.
7-10 All proceedings under this subsection are subject to the
7-11 Administrative Procedure and Texas Register Act (Article 6252-13a,
7-12 Vernon's Texas Civil Statutes). In making any penalty decision,
7-13 the commission shall consider each of the factors provided by
7-14 Subsection (b).
7-15 (h) The commission shall give notice of its decision to the
7-16 person charged, and if the commission finds that a violation has
7-17 occurred and the commission has assessed a penalty, the commission
7-18 shall give written notice to the person charged of its findings, of
7-19 the amount of the penalty, and of the person's right to judicial
7-20 review of the commission's order. If the commission is required to
7-21 give notice of a penalty under this subsection or Subsection (f),
7-22 the commission shall file notice of its decision with the Texas
7-23 Register not later than the 10th day after the date on which the
7-24 decision is adopted.
7-25 (i) Within a 30-day period immediately following the day on
8-1 which the commission's order is final, as provided by Section
8-2 16(c), Administrative Procedure and Texas Register Act (Article
8-3 6252-13a, Vernon's Texas Civil Statutes), the person charged with
8-4 the penalty shall:
8-5 (1) pay the penalty in full; or
8-6 (2) if the person seeks judicial review of the fact of
8-7 the violation, the amount of the penalty, or both:
8-8 (A) forward the amount of the penalty to the
8-9 commission for placement in an escrow account; or
8-10 (B) post with the commission a supersedeas bond
8-11 in a form approved by the commission for the amount of the penalty
8-12 to be effective until all judicial review of the order or decision
8-13 is final.
8-14 (j) Failure to forward the money for escrow to or post the
8-15 bond with the commission within the time provided by Subsection (i)
8-16 constitutes a waiver of all legal rights to judicial review. If
8-17 the person charged fails to forward the money for escrow or post
8-18 the bond as provided by Subsection (i), the commission or the
8-19 executive director of the commission may refer the matter to the
8-20 attorney general for enforcement.
8-21 Sec. 341.050. PENALTIES CUMULATIVE. All penalties accruing
8-22 under this subchapter are cumulative of all other remedies, and a
8-23 suit for recovery of any penalty does not bar or affect the
8-24 recovery of any other penalty or bar any criminal prosecution
8-25 against a person or any officer, director, agent, or employee of
9-1 that person.
9-2 (Sections 341.051 <341.041> to 341.060 reserved
9-3 for expansion.)
9-4 SECTION 3. (a) The changes in law made by Sections 341.046
9-5 through 341.050, Health and Safety Code, as added by this Act,
9-6 apply only to an offense committed or a violation that occurs on or
9-7 after the effective date of this Act. For purposes of this Act, an
9-8 offense is committed or a violation occurs before the effective
9-9 date of this Act if any element of the offense or violation occurs
9-10 before the effective date of this Act.
9-11 (b) An offense committed or a violation that occurs before
9-12 the effective date of this Act is governed by the law in effect
9-13 when the offense was committed or the violation occurred, and the
9-14 former law is continued in effect for this purpose.
9-15 SECTION 4. This Act takes effect September 1, 1993.
9-16 SECTION 5. The importance of this legislation and the
9-17 crowded condition of the calendars in both houses create an
9-18 emergency and an imperative public necessity that the
9-19 constitutional rule requiring bills to be read on three several
9-20 days in each house be suspended, and this rule is hereby suspended.