1-1 By: Parker S.B. No. 1041
1-2 (In the Senate - Filed March 12, 1993; March 15, 1993, read
1-3 first time and referred to Committee on Natural Resources;
1-4 March 23, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; March 23, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Sims x
1-10 Truan x
1-11 Armbrister x
1-12 Barrientos x
1-13 Bivins x
1-14 Brown x
1-15 Carriker x
1-16 Lucio x
1-17 Montford x
1-18 Ratliff x
1-19 Shelley x
1-20 COMMITTEE SUBSTITUTE FOR S.B. No. 1041 By: Barrientos
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to protecting public drinking water supplies; creating
1-24 offenses and providing fees and penalties.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Section 341.040, Health and Safety Code, is
1-27 amended to read as follows:
1-28 Sec. 341.040. DEFINITIONS. In this subchapter:
1-29 (1) "Board" means the commission <Texas Natural
1-30 Resource Conservation Commission>.
1-31 (2) "Commission" means the Texas Natural Resource
1-32 Conservation Commission.
1-33 (3) "Department" means the commission <Texas Natural
1-34 Resource Conservation Commission>.
1-35 SECTION 2. Subchapter C, Chapter 341, Health and Safety
1-36 Code, is amended by adding Sections 341.041 and 341.046 through
1-37 341.050 to read as follows:
1-38 Sec. 341.041. FEES. (a) The commission by rule may charge
1-39 fees to a person who owns, operates, or maintains a public drinking
1-40 water supply system to recover the costs of administering this
1-41 subchapter and of providing services to public drinking water
1-42 supply systems. The commission may establish a schedule of fees.
1-43 The amount of the fees may not exceed the reasonable costs of
1-44 administering this subchapter and providing the services.
1-45 (b) The commission by rule may assess penalties and interest
1-46 for late payment of fees owed by persons who own, operate, or
1-47 maintain public drinking water supply systems. Penalties and
1-48 interest established under this section may not exceed the rates
1-49 established for delinquent taxes under Sections 111.060 and
1-50 111.061, Tax Code.
1-51 (Sections 341.042 to 341.045 reserved for expansion
1-52 Sec. 341.046. NONAPPLICABILITY OF SUBCHAPTER F. Subchapter
1-53 F does not apply to this subchapter.
1-54 Sec. 341.047. CRIMINAL PENALTY. (a) A person commits an
1-55 offense if the person:
1-56 (1) violates a provision of Section 341.031;
1-57 (2) violates a provision of Section 341.032(a) or (b);
1-58 (3) violates a provision of Section 341.033(a)-(f);
1-59 (4) constructs a drinking water supply system without
1-60 submitting completed plans and specifications as required by
1-61 Section 341.035(a);
1-62 (5) establishes a drinking water supply system without
1-63 the commission's approval as required by Section 341.035(a);
1-64 (6) violates a provision of Section 341.035(b) or (c);
1-65 (7) fails to remove a sign as required by Section
1-66 341.035(e); or
1-67 (8) violates a provision of Section 341.036.
1-68 (b) An offense under Subsection (a) is a Class C misdemeanor
2-1 punishable by a fine of not less than $100.
2-2 (c) If it is shown on a trial of the defendant that the
2-3 defendant has been convicted of an offense under Subsection (a)
2-4 within a year before the date on which the offense being tried
2-5 occurred, the subsequent offense under Subsection (a) is a Class B
2-6 misdemeanor.
2-7 (d) Each day of a continuing violation is a separate
2-8 offense.
2-9 Sec. 341.048. CIVIL ENFORCEMENT. (a) A person may not
2-10 cause, suffer, allow, or permit a violation of this subchapter or a
2-11 rule or order adopted under this subchapter.
2-12 (b) A person who causes, suffers, allows, or permits a
2-13 violation under this subchapter shall be assessed a civil penalty
2-14 of not less than $50 nor more than $500 for each violation. Each
2-15 day of a continuing violation is a separate violation.
2-16 (c) If it is shown on a trial of the defendant that the
2-17 defendant has previously been assessed a civil penalty under this
2-18 section within a year before the date on which the violation being
2-19 tried occurred, the defendant shall be assessed a civil penalty of
2-20 not less than $50 nor more than $1,000 for each subsequent
2-21 violation under this subchapter. Each day of a continuing
2-22 violation is a separate violation.
2-23 (d) If it appears that a person has violated, is violating,
2-24 or threatens to violate a provision under this subchapter, the
2-25 commission, a county, or a municipality may institute a civil suit
2-26 in a district court for:
2-27 (1) injunctive relief to restrain the person from
2-28 continuing the violation or threat of violation;
2-29 (2) the assessment and recovery of a civil penalty; or
2-30 (3) both injunctive relief and a civil penalty.
2-31 (e) The commission is a necessary and indispensable party in
2-32 a suit brought by a county or municipality under this section.
2-33 (f) On the commission's request, the attorney general shall
2-34 institute a suit in the name of the state for injunctive relief, to
2-35 recover a civil penalty, or for both injunctive relief and civil
2-36 penalty.
2-37 (g) The suit may be brought in Travis County, in the county
2-38 in which the defendant resides, or in the county in which the
2-39 violation or threat of violation occurs.
2-40 (h) In a suit under this section to enjoin a violation or
2-41 threat of violation of this subchapter, the court shall grant the
2-42 state, county, or municipality, without bond or other undertaking,
2-43 any injunction that the facts may warrant including temporary
2-44 restraining orders, temporary injunctions after notice and hearing,
2-45 and permanent injunctions.
2-46 (i) Civil penalties recovered in a suit brought under this
2-47 section by a county or municipality shall be equally divided
2-48 between:
2-49 (1) the state; and
2-50 (2) the county or municipality that first brought the
2-51 suit.
2-52 Sec. 341.049. ADMINISTRATIVE PENALTY. (a) If a person
2-53 causes, suffers, allows, or permits a violation of this subchapter
2-54 or a rule or order adopted under this subchapter, the commission
2-55 may assess a penalty against that person as provided by this
2-56 section. The penalty shall not be less than $50 nor more than $500
2-57 for each violation. Each day of a continuing violation may be
2-58 considered a separate violation.
2-59 (b) In determining the amount of the penalty, the commission
2-60 shall consider:
2-61 (1) the nature of the circumstances and the extent,
2-62 duration, and gravity of the prohibited acts or omissions;
2-63 (2) with respect to the alleged violator:
2-64 (A) the history and extent of previous
2-65 violations;
2-66 (B) the degree of culpability, including whether
2-67 the violation was attributable to mechanical or electrical failures
2-68 and whether the violation could have been reasonably anticipated
2-69 and avoided;
2-70 (C) the person's demonstrated good faith,
3-1 including actions taken by the person to correct the cause of the
3-2 violation;
3-3 (D) any economic benefit gained through the
3-4 violation; and
3-5 (E) the amount necessary to deter future
3-6 violation; and
3-7 (3) any other matters that justice requires.
3-8 (c) If, after examination of a possible violation and the
3-9 facts surrounding that possible violation, the executive director
3-10 of the commission concludes that a violation has occurred, the
3-11 executive director may issue a preliminary report stating the facts
3-12 on which that conclusion is based, recommending that a penalty
3-13 under this section be imposed on the person, and recommending the
3-14 amount of that proposed penalty. The executive director shall base
3-15 the recommended amount of the proposed penalty on the factors
3-16 provided by Subsection (b) and shall consider each factor for the
3-17 benefit of the commission.
3-18 (d) Not later than the 10th day after the date on which the
3-19 preliminary report is issued, the executive director of the
3-20 commission shall give written notice of the report to the person
3-21 charged with the violation. The notice shall include a brief
3-22 summary of the charges, a statement of the amount of the penalty
3-23 recommended, and a statement of the right of the person charged to
3-24 a hearing on the occurrence of the violation, the amount of the
3-25 penalty, or both.
3-26 (e) Not later than the 20th day after the date on which
3-27 notice is received, the person charged may give the commission
3-28 written consent to the executive director's report including the
3-29 recommended penalty or may make a written request for a hearing.
3-30 (f) If the person charged with the violation consents to the
3-31 penalty recommended by the executive director of the commission or
3-32 fails to timely respond to the notice, the commission by order
3-33 shall assess that penalty or order a hearing to be held on the
3-34 findings and recommendations in the executive director's report.
3-35 If the commission assesses a penalty, the commission shall give
3-36 written notice of its decision to the person charged.
3-37 (g) If the person charged requests or the commission orders
3-38 a hearing, the commission shall call a hearing and give notice of
3-39 the hearing. As a result of the hearing, the commission by order
3-40 may find that a violation has occurred and may assess a civil
3-41 penalty, may find that a violation has occurred but that no penalty
3-42 should be assessed, or may find that no violation has occurred.
3-43 All proceedings under this subsection are subject to the
3-44 Administrative Procedure and Texas Register Act (Article 6252-13a,
3-45 Vernon's Texas Civil Statutes). In making any penalty decision,
3-46 the commission shall consider each of the factors provided by
3-47 Subsection (b).
3-48 (h) The commission shall give notice of its decision to the
3-49 person charged, and if the commission finds that a violation has
3-50 occurred and the commission has assessed a penalty, the commission
3-51 shall give written notice to the person charged of its findings, of
3-52 the amount of the penalty, and of the person's right to judicial
3-53 review of the commission's order. If the commission is required to
3-54 give notice of a penalty under this subsection or Subsection (f),
3-55 the commission shall file notice of its decision with the Texas
3-56 Register not later than the 10th day after the date on which the
3-57 decision is adopted.
3-58 (i) Within a 30-day period immediately following the day on
3-59 which the commission's order is final, as provided by Section
3-60 16(c), Administrative Procedure and Texas Register Act (Article
3-61 6252-13a, Vernon's Texas Civil Statutes), the person charged with
3-62 the penalty shall:
3-63 (1) pay the penalty in full; or
3-64 (2) if the person seeks judicial review of the fact of
3-65 the violation, the amount of the penalty, or both:
3-66 (A) forward the amount of the penalty to the
3-67 commission for placement in an escrow account; or
3-68 (B) post with the commission a supersedeas bond
3-69 in a form approved by the commission for the amount of the penalty
3-70 to be effective until all judicial review of the order or decision
4-1 is final.
4-2 (j) If the person charged fails to forward the money for
4-3 escrow or post the bond as provided by Subsection (i), the
4-4 commission or the executive director of the commission may refer
4-5 the matter to the attorney general for enforcement.
4-6 Sec. 341.050. PENALTIES CUMULATIVE. All penalties accruing
4-7 under this subchapter are cumulative of all other remedies, and a
4-8 suit for recovery of any penalty does not bar or affect the
4-9 recovery of any other penalty or bar any criminal prosecution
4-10 against a person or any officer, director, agent, or employee of
4-11 that person.
4-12 (Sections 341.051 <341.041> to 341.060 reserved
4-13 for expansion.)
4-14 SECTION 3. (a) The changes in law made by Sections 341.046
4-15 through 341.050, Health and Safety Code, as added by this Act,
4-16 apply only to an offense committed or a violation that occurs on or
4-17 after the effective date of this Act. For purposes of this Act, an
4-18 offense is committed or a violation occurs before the effective
4-19 date of this Act if any element of the offense or violation occurs
4-20 before the effective date of this Act.
4-21 (b) An offense committed or a violation that occurs before
4-22 the effective date of this Act is governed by the law in effect
4-23 when the offense was committed or the violation occurred, and the
4-24 former law is continued in effect for this purpose.
4-25 SECTION 4. This Act takes effect September 1, 1993.
4-26 SECTION 5. The importance of this legislation and the
4-27 crowded condition of the calendars in both houses create an
4-28 emergency and an imperative public necessity that the
4-29 constitutional rule requiring bills to be read on three several
4-30 days in each house be suspended, and this rule is hereby suspended.
4-31 * * * * *
4-32 Austin,
4-33 Texas
4-34 March 23, 1993
4-35 Hon. Bob Bullock
4-36 President of the Senate
4-37 Sir:
4-38 We, your Committee on Natural Resources to which was referred S.B.
4-39 No. 1041, have had the same under consideration, and I am
4-40 instructed to report it back to the Senate with the recommendation
4-41 that it do not pass, but that the Committee Substitute adopted in
4-42 lieu thereof do pass and be printed.
4-43 Sims,
4-44 Chairman
4-45 * * * * *
4-46 WITNESSES
4-47 No witnesses appeared on S.B. No. 1041.