By: Truan S.B. No. 1345
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the management of state-owned marl, sand, gravel,
1-2 shell, mudshell, and other substrate material; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 86, Parks and Wildlife Code, is amended
1-5 to read as follows:
1-6 CHAPTER 86. MARL, SAND, GRAVEL, SHELL, AND MUDSHELL
1-7 Sec. 86.001. DEFINITIONS. In this chapter:
1-8 (1) "Substrate material" means marl, sand, gravel,
1-9 shell, and mudshell located within the tidewater and freshwater
1-10 limits of the state and on islands within these limits.
1-11 (2) "Operations" means digging, dredging, or
1-12 excavation activities that produce the actual movement of
1-13 substantial amounts of substrate material.
1-14 Sec. 86.002. MANAGEMENT AND PROTECTION. (a) The commission
1-15 shall manage, control, and protect all substrate material <marl and
1-16 sand of commercial value and all gravel, shell, and mudshell>
1-17 located within:
1-18 (1) the tidewater limits of the state<,> and on
1-19 islands within those limits; or
1-20 (2) <, and within> the freshwater areas of the state
1-21 not embraced by a survey of private land, and on islands within
1-22 those areas.
1-23 (b) The commission shall manage, control, and protect sand
2-1 and gravel located within the bed of any stream or other body of
2-2 water covered by Chapter 138, Acts of the 41st Legislature, Regular
2-3 Session, 1929 (Article 5414a, Vernon's Texas Civil Statutes), or
2-4 Chapter 232, Acts of the 54th Legislature, 1955 (Article 5414a-1,
2-5 Vernon's Texas Civil Statutes), in which the state has retained
2-6 title, right, or interests in and to sand and gravel.
2-7 Sec. 86.003 <86.002>. LEASE OR PERMIT REQUIRED<; PENALTY>.
2-8 (a) Except as provided in Subsection (b) of this section or a rule
2-9 adopted pursuant to Section 86.021 of this code, no <No> person may
2-10 disturb or take substrate material <marl, sand, gravel, shell, or
2-11 mudshell> under the management and protection of the commission <or
2-12 operate in or disturb any oyster bed or fishing water> for any
2-13 purpose without having:
2-14 (1) a lease from the commission pursuant to Section
2-15 86.022 of this code for activities conducted for the primary
2-16 purpose of recovering substrate materials for commercial sale; or
2-17 (2) a permit from the department pursuant to Section
2-18 86.005 or 86.022 of this code for other types of activities.
2-19 (b) Activity under the authorization of or with the
2-20 permission of the General Land Office or School Land Board is
2-21 exempt from this chapter. Dredging or excavating <other than that>
2-22 necessary or incidental to navigation projects constructed by or
2-23 for an agency of the <or dredging under state or> federal
2-24 government is exempt from the requirement for a lease or permit
2-25 under this chapter <authority without first having acquired from
3-1 the commission a permit authorizing the activity>.
3-2 (c) The exemption of any activity in this chapter from the
3-3 requirements to obtain a lease or permit shall not be an exemption
3-4 from the requirement to pay the state for the taking and conversion
3-5 of significant amounts of substrate materials.
3-6 <(b) Each day's operation in violation of this section
3-7 constitutes a separate offense.>
3-8 Sec. 86.004 <86.003>. APPLICATION FOR PERMIT. (a) A person
3-9 desiring a new or renewed permit to take or disturb substrate
3-10 materials for any purpose other than primarily for commercial sale
3-11 of those materials may apply to the department <commission>.
3-12 (b) The application must be in writing; <and> must describe
3-13 the area in which authorization to operate is sought, the type and
3-14 quantity of substrate material to be disturbed or taken, and the
3-15 purpose of the operation; and must include all other information
3-16 reasonably required by the department.
3-17 Sec. 86.005 <86.004>. GRANTING OF PERMIT. The department
3-18 <commission> may grant a permit to an applicant who has complied
3-19 with all requirements of the commission's regulations <commission>
3-20 if the department <commission> finds that the disturbing or<,>
3-21 taking<, and carrying away> of substrate material <marl, sand,
3-22 gravel, shell, or mudshell> will not cause significant injurious
3-23 effect to navigation, the coastal sediment budget, recreation, or
3-24 fish and wildlife resources including habitat; will not
3-25 significantly contribute to increased erosion; and will not be
4-1 inconsistent with any formally adopted provision of the state's
4-2 coastal management plan.<:>
4-3 <(1) damage or injuriously affect any island, reef,
4-4 bar, channel, river, creek, or bayou used for navigation, or any
4-5 oysters, oyster beds, or fish in or near the water used in the
4-6 operation; and>
4-7 <(2) change or injuriously affect any current that
4-8 would affect navigation.>
4-9 <Sec. 86.005. ECONOMIC CONSIDERATIONS. In determining
4-10 whether or not a permit should be granted, the commission shall
4-11 consider the injurious effect on oysters, oyster beds, and fish in
4-12 or near the water used in the operation as well as the needs of
4-13 industry for marl, sand, gravel, shell, and mudshell and its
4-14 relative value to the state for commercial use.>
4-15 Sec. 86.006. PERMIT. (a) The permit must <shall> identify
4-16 the person authorized to disturb or<,> take substrate material, <or
4-17 carry away marl, sand, gravel, shell, or mudshell and shall>
4-18 describe the type and amount <nature> of the material that may be
4-19 disturbed or<,> taken, and provide for payment to the department
4-20 for removal of substrate material<, or carried away>.
4-21 (b) The permit must <shall> describe the area where the
4-22 operation may occur and <shall> state the purpose and nature of the
4-23 operation.
4-24 (c) Consistent with commission rules, the <The> permit may
4-25 contain other terms and conditions, including but not limited to
5-1 conditions requiring:
5-2 (1) monitoring of potential adverse effects;
5-3 (2) operational restrictions designed to minimize
5-4 adverse effects; and
5-5 (3) mitigation of unavoidable adverse effects on
5-6 habitats for terrestrial or aquatic organisms.
5-7 Sec. 86.007. <PERMITS NOT ASSIGNABLE. A permit issued under
5-8 this chapter is not assignable.>
5-9 <Sec. 86.008.> DENIAL OF PERMIT. If the department
5-10 <commission> refuses to grant a permit to an applicant, it shall
5-11 make a full written finding of facts explaining the reason for the
5-12 refusal.
5-13 Sec. 86.008 <86.009>. TERMINATION AND REVOCATION OF PERMITS.
5-14 (a) The failure or refusal by the holder of a permit to comply
5-15 with any term or condition of the permit, any provision of this
5-16 chapter, or any rule adopted pursuant to this chapter shall
5-17 constitute grounds for <operates as an immediate termination and>
5-18 revocation of all rights conferred or claimed under the permit and
5-19 the forfeiture of any bond.
5-20 (b) Permits may be issued for any term up to one year.
5-21 (c) The department may renew a permit for additional terms
5-22 of up to one year if:
5-23 (1) the permittee demonstrates good cause for not
5-24 having completed operations during the previous term;
5-25 (2) the permittee demonstrates compliance with all
6-1 permit conditions; and
6-2 (3) the department determines that renewal is
6-3 consistent with the commission's regulations.
6-4 Sec. 86.009. RULEMAKING AUTHORITY. The commission may make
6-5 rules for the consideration of applications; the setting and
6-6 collection of fees for the processing of applications; the
6-7 assessment of transcript costs in contested case proceedings; the
6-8 imposition of conditions on permits, leases, and easements; the
6-9 issuance of permits by rule; the pricing and terms of payment for
6-10 substrate material; the assignability of permits, leases, and
6-11 easements; the payment of refunds; the renewal of permits, leases,
6-12 and easements; and all other matters necessary for the
6-13 administration of this chapter.
6-14 Sec. 86.010. Removal and Replanting of Oysters and Oyster
6-15 Beds. (a) To prevent damage incidental to operations authorized
6-16 by a permit or lease, the department <The commission> may remove
6-17 oysters and oyster beds and replant them in other natural or
6-18 artificial reefs if the department <commission> finds that the
6-19 operations authorized by the permit might adversely affect those
6-20 oysters or oyster beds and that the removal and replanting will
6-21 benefit the growth and propagation or the betterment of oysters and
6-22 oyster beds or fishing conditions.
6-23 (b) The removal and replanting of oysters and oyster beds
6-24 shall be at the expense of the holder of the <person holding a
6-25 permit or of an applicant for a> permit or lease and not the state.
7-1 (c) Before authorizing the removal and replanting of oysters
7-2 or oyster beds, the department <commission> shall give notice to
7-3 interested parties and hold a hearing on the subject.
7-4 Sec. 86.011. EXCLUSION OF OTHERS. Any right granted by
7-5 lease, permit, or easement shall entitle the grantee to only such
7-6 use of the river or streambed as is necessary to accomplish the
7-7 purpose of the lease, permit, or easement and may not be used to
7-8 exclude anyone from use of the permitted area for any other
7-9 legitimate purpose. <NO SPECIAL PRIVILEGES. No special privileges
7-10 or exclusive rights may be granted to any person to take marl,
7-11 sand, gravel, shell, or mudshell or to operate in or on any place
7-12 under this chapter.>
7-13 Sec. 86.012. Sales of Materials. (a) The commission shall
7-14 set the price for substrate material taken under a permit or lease
7-15 issued pursuant to this chapter. The commission may set the price
7-16 as a percentage of the market value of materials taken or as a
7-17 price per unit volume. Regardless of the method chosen, substrate
7-18 materials shall be sold or leased<, with the approval of the
7-19 governor, may sell marl, sand, gravel, shell, and mudshell> for a
7-20 price that is not less than 25 <four> cents for each cubic yard <a
7-21 ton>.
7-22 (b) The department or, as appropriate, the commission may
7-23 require other terms and conditions for the sale of substrate
7-24 material, including payment in kind with substrate material if the
7-25 department determines that payment in kind would benefit oysters,
8-1 oyster beds, fisheries, or other fish or wildlife habitats <marl,
8-2 sand, gravel, shell, and mudshell>.
8-3 (c) Payment for substrate materials taken pursuant to
8-4 permits or leases <sales> shall be made to the department and,
8-5 along with money from application and other fees, shall be
8-6 deposited to the credit of the game, fish, and water safety fund
8-7 <commission>.
8-8 (d) Substrate material <Marl, sand, gravel, shell, and
8-9 mudshell> may be removed without payment to the department
8-10 <commission> if removed:
8-11 (1) from land or flats patented to a navigation
8-12 district by the state for any use on the land or flats or on any
8-13 adjoining land or flats for any purpose for which the land or flats
8-14 may be used under the authority of the patent to the district;<,>
8-15 or
8-16 (2) <if removed> to provide access to a boat ramp
8-17 under Section 31.141(c) of this code.
8-18 Sec. 86.013. Use on Roads. (a) A county, subdivision of a
8-19 county, state agency, or municipality <city, or town> that has a
8-20 permit to take substrate material <marl, sand, gravel, shell, or
8-21 mudshell> is not required to make payment to the department for
8-22 substrate material <purchase marl, sand, gravel, shell, or
8-23 mudshell> taken and used for public roads and streets.
8-24 (b) A county, subdivision of a county, state agency, or
8-25 municipality <city, or town> that purchases substrate material
9-1 <marl, sand, gravel, shell, or mudshell> for use on public roads
9-2 and streets from a holder of a permit who has purchased the
9-3 material from the department <commission> may receive a refund of
9-4 the amount paid by the permit holder by submitting a sworn itemized
9-5 account of an official of the county, subdivision of the county,
9-6 state agency, or municipality <city, or town>. All refunds under
9-7 this subsection must be approved by the department <commission> and
9-8 be paid by the comptroller by warrant.
9-9 (c) The Texas Department of Transportation <State Highway
9-10 Commission> may receive a refund of the amount paid to the
9-11 department <commission> for the purchase of substrate material
9-12 <marl, sand, gravel, shell, or mudshell> used by the Texas
9-13 Department of Transportation <highway commission> on public roads.
9-14 Funds collected under this chapter may be used for payment of
9-15 refunds under this subsection and Subsection (b) of this section.
9-16 (d) The commission may adopt rules <make regulations> for
9-17 the payment of refunds under this section.
9-18 Sec. 86.014. USE FOR SEAWALLS, ETC. (a) The department
9-19 <commission> shall grant to any county or municipality<, city, or
9-20 town> that is authorized under Title 118, Revised <Civil> Statutes
9-21 <of Texas, 1925>, to build and maintain seawalls a permit for the
9-22 taking of substrate material <marl, sand, gravel, shell, or
9-23 mudshell> to be used for the building, extending, protecting,
9-24 maintaining, or improving any seawall, breakwater, levee, dike,
9-25 floodway, or drainway or for purposes of beach nourishment or
10-1 erosion control.
10-2 (b) <Permits under this section shall be issued under
10-3 regulations established by the commission.>
10-4 <(c)> A county or municipality<, city, or town> taking
10-5 substrate material <marl, sand, gravel, shell, or mudshell> under
10-6 this section is not required to make payment to the department for
10-7 <purchase> the material <marl, sand, gravel, shell, or mudshell>.
10-8 Sec. 86.015. SAND FROM CORPUS CHRISTI AND NUECES BAYS. Sand
10-9 and other deposits having no commercial value may be taken from
10-10 Corpus Christi and Nueces bays for filling and raising the grade of
10-11 the salt flats in the northern part of the city of Corpus Christi
10-12 and the lowlands lying north of the north boundary line of the city
10-13 of Corpus Christi, in Nueces County, and south of the south
10-14 boundary line of the city of Portland, in San Patricio County,
10-15 without making payments for it to the department <commission>.
10-16 Sec. 86.016 <86.0151>. Use to Open Brown Cedar Cut. (a) A
10-17 nonprofit corporation, fund, or foundation exempted from federal
10-18 income taxes under Section 503(c)(3), Internal Revenue Code of 1986
10-19 <1954, as amended> (26 U.S.C. Sec. 503(c)(3)), may take substrate
10-20 material <sand, gravel, marl, shell, and mudshell> from Brown Cedar
10-21 Cut in Matagorda County for the sole purpose of opening and
10-22 reopening that passage between the Gulf of Mexico and East
10-23 Matagorda Bay.
10-24 (b) The fee required by Section 86.012 of this code does not
10-25 apply to substrate material <sand, gravel, marl, shell, or
11-1 mudshell> taken under Subsection (a) of this section, and that
11-2 substrate material <sand, gravel, marl, shell, and mudshell> may be
11-3 deposited on private land.
11-4 Sec. 86.017 <86.0152>. Use to Open Cedar Bayou. (a) A
11-5 nonprofit corporation, fund, or foundation exempted from federal
11-6 income taxes under Section 501(c)(3), Internal Revenue Code of 1986
11-7 <1954, as amended> (26 U.S.C. Sec. 501(c)(3)), or a political
11-8 subdivision of the state may take substrate material <sand, gravel,
11-9 marl, shell, and mudshell> from Cedar Bayou in Aransas County for
11-10 the sole purpose of opening and reopening that passage between the
11-11 Gulf of Mexico and Mesquite Bay.
11-12 (b) The fee required by Section 86.012 of this code does not
11-13 apply to substrate material <sand, gravel, marl, shell, or
11-14 mudshell> taken under Subsection (a) of this section, and that
11-15 substrate material <sand, gravel, marl, shell, and mudshell> may be
11-16 deposited on private land.
11-17 <Sec. 86.016. DEPOSIT OF FUNDS. The proceeds from the sale
11-18 of marl, sand, gravel, shell, and mudshell shall be deposited in
11-19 the special game and fish fund.>
11-20 <Sec. 86.017. USE OF FUNDS. Funds collected by the
11-21 commission from the sale of marl, sand, gravel, shell, and mudshell
11-22 may be used for the enforcement of the provisions of this chapter,
11-23 the payment of refunds, and the construction and maintenance of
11-24 fish hatcheries. No less than three-fourths of the proceeds from
11-25 the sale of marl, sand, gravel, shell, and mudshell, after the
12-1 payment of refunds, shall be used for the construction and
12-2 maintenance of fish hatcheries.>
12-3 Sec. 86.018. TAKING FROM CERTAIN AREAS PROHIBITED. No
12-4 person may take substrate material <marl, sand, gravel, shell,> or
12-5 other material from any place between a seawall and the water's
12-6 edge, from a beach or shoreline within 300 feet of the mean low
12-7 tide, or within one-half mile of the end of any seawall, for any
12-8 purpose other than activity under the authorization of the General
12-9 Land Office or the School Land Board or dredging or excavating
12-10 <that> necessary or incidental to navigation projects constructed
12-11 by or for an agency of the <or dredging under> state or federal
12-12 government <authority>. The authority to dredge or fill pursuant
12-13 to a permit issued under the authority of Section 401 or 404 of the
12-14 federal Clean Water Act (33 U.S.C. Section 1341 or 1344) does not
12-15 exempt any person from the requirements of this section.
12-16 Sec. 86.019. OIL AND GAS LESSEES. This chapter does not
12-17 require the holder of an oil and gas lease executed by the state to
12-18 obtain a permit from the department <commission> to exercise any
12-19 right granted under the lease or other laws of this state.
12-20 Sec. 86.020. PENALTY. (a) A person who violates Section
12-21 86.003, <86.002 or> 86.018, or 86.026 of this code or any rule
12-22 adopted pursuant to this chapter commits an offense that is a Class
12-23 A <C> Parks and Wildlife Code misdemeanor.
12-24 (b) A person who violates any provision of a permit,
12-25 easement, or lease issued pursuant to this chapter commits an
13-1 offense that is a Class B Parks and Wildlife Code misdemeanor.
13-2 (c) Each day that a violation occurs under this section
13-3 constitutes a separate offense.
13-4 Sec. 86.021. EXEMPTIONS. The commission by rule may exempt
13-5 types of projects resulting in insignificant takings or
13-6 disturbances of substrate material from the requirements of
13-7 obtaining a permit and paying the department for materials taken on
13-8 a finding that the takings or disturbances will not:
13-9 (1) deprive the state of significant revenue from
13-10 substrate material;
13-11 (2) result in significant adverse effects on
13-12 navigation, the coastal sediment budget, or fish and wildlife
13-13 resources including habitat; or
13-14 (3) significantly increase erosion.
13-15 Sec. 86.022. PERMIT BY RULE. (a) The commission by rule
13-16 may establish conditions pursuant to which certain activities are
13-17 authorized without the requirement of individual permits under this
13-18 chapter. An activity conducted in accordance with those conditions
13-19 shall be considered to be undertaken pursuant to a permit.
13-20 (b) The rules shall establish requirements for advance
13-21 notification to the department by any person proposing to rely on
13-22 the authorization provided for in this section and, as appropriate,
13-23 requirements for reporting to the department during and on
13-24 completion of the activity. The rules may provide for waiver of
13-25 the requirement for advance notification in emergency situations.
14-1 The commission may require a nonrefundable processing fee to be
14-2 submitted with the notification.
14-3 (c) The department shall have the option under those rules
14-4 of requiring an individual permit for any proposed activity.
14-5 (d) The rules shall establish requirements for public
14-6 notification of the proposed activity so that the public may be
14-7 provided with an opportunity to comment to the department on the
14-8 appropriateness of requiring an individual permit.
14-9 (e) The rules shall establish best management practices that
14-10 must be followed in order to minimize potential adverse effects to
14-11 resources under the commission's jurisdiction.
14-12 Sec. 86.023. LEASE FOR COMMERCIAL SALE. (a) Any person
14-13 desiring to take substrate materials primarily for the purpose of
14-14 commercial sale may apply to the commission for a lease. The
14-15 commission may issue leases for any term up to 24 months in length.
14-16 (b) The application shall be submitted to the director on a
14-17 form provided by the department and shall be accompanied by a
14-18 nonrefundable application fee in an amount determined by the
14-19 commission to cover reasonable costs of reviewing the application.
14-20 Sec. 86.024. COMMISSION CONSIDERATION OF APPLICATIONS FOR
14-21 LEASES. (a) If the director determines the application is
14-22 complete, the director shall present the application to the
14-23 commission for consideration. The director shall recommend
14-24 conditions appropriate for protection of fish and wildlife
14-25 resources, recreation, and navigation and conditions to minimize
15-1 the potential for increased erosion.
15-2 (b) All applications for leases presented to the commission
15-3 shall be considered in public session.
15-4 Sec. 86.025. DECISION CRITERIA FOR LEASES. (a) The
15-5 commission may grant a lease only if the commission determines that
15-6 granting the lease:
15-7 (1) will not cause significant adverse effects to fish
15-8 or wildlife resources, recreation, or navigation;
15-9 (2) is consistent with any formally adopted provisions
15-10 of the state's coastal management plan;
15-11 (3) will not significantly affect the coastal sediment
15-12 budget;
15-13 (4) is consistent with commission regulations; and
15-14 (5) is not detrimental to the public interest.
15-15 (b) The commission shall have discretion to deny or
15-16 condition any requested lease.
15-17 Sec. 86.026. REVOCATION OF LEASES. (a) The failure or
15-18 refusal by the holder of a lease to comply with any term or
15-19 condition of the lease, any provision of this chapter, or any rule
15-20 adopted pursuant to this chapter shall constitute grounds for
15-21 immediate termination and revocation of all privileges conferred or
15-22 claimed under the lease.
15-23 (b) When the department has reason to believe that grounds
15-24 for revocation or termination exist, the department shall notify
15-25 the lessee in writing of those grounds.
16-1 (c) The lessee shall have 30 days from the date of receipt
16-2 of notice to respond and to present information concerning the
16-3 occurrence of or reasons for any failure to comply with applicable
16-4 requirements.
16-5 (d) After the expiration of the 30-day period set out in
16-6 Subsection (c) of this section, the director may issue a
16-7 declaration of revocation if the director determines that the
16-8 lessee has failed, without adequate justification, to comply with a
16-9 substantial term or condition of the lease, any provision of this
16-10 chapter, or any rule adopted pursuant to this chapter. On
16-11 notification of the declaration of revocation by the director, the
16-12 lessee's privileges under the lease are suspended. However, the
16-13 lessee's duties to make payment to the department for materials
16-14 previously taken, to undertake mitigation for adverse effects, and
16-15 to keep and make available records are continued in effect.
16-16 (e) If the director issues a declaration of revocation, the
16-17 lessee may appeal that decision by filing a written appeal to the
16-18 commission. That appeal must be filed with the director within 14
16-19 days of written notification to the lessee of the director's
16-20 declaration of revocation.
16-21 (f) If a lessee timely files a notice of appeal, the lease
16-22 is continued in effect but remains subject to the suspension of
16-23 privileges. If the lessee does not timely file a notice of appeal,
16-24 the lease is terminated.
16-25 (g) On receipt of a timely notice of appeal, the director
17-1 shall present the appeal to the commission at the earliest feasible
17-2 commission meeting.
17-3 (h) If the commission determines that the lessee has failed
17-4 to comply with a substantial term or condition of the lease, any
17-5 provision of this chapter, or any rule adopted pursuant to this
17-6 chapter, the commission may uphold the declaration of revocation
17-7 and permanently revoke all privileges under the lease or modify the
17-8 lease. The commission also may overturn the declaration of
17-9 revocation, which action shall have the effect of reinstating the
17-10 lease privileges. The commission's decision on the appeal shall be
17-11 final.
17-12 Sec. 86.027. EASEMENTS TO MAINTAIN STRUCTURES IN STATE-OWNED
17-13 STREAMBEDS. (a) No person may place or maintain any structure
17-14 into or across any state-owned, navigable, freshwater river or
17-15 stream without first obtaining an easement from the department if
17-16 any phase of construction of the structure results in the
17-17 disturbance or taking of substrate material.
17-18 (b) Structures constructed pursuant to a permit issued under
17-19 the authority of the Water Code and crossings or bridges for public
17-20 roads are exempt from the requirements of this section.
17-21 (c) The commission by rule may create additional exemptions
17-22 from the requirements of this section on the basis of public
17-23 safety, administrative necessity, or insignificant effects on
17-24 habitats for fish and wildlife resources.
17-25 (d) The commission shall establish by rule reasonable fees
18-1 for the processing and review of applications for easements and the
18-2 prices for the granting of the easements. Fees may take into
18-3 account the actual costs of processing, and the prices may take
18-4 into account, in addition to any normal fee for occupation of
18-5 space, damage to habitats for fish and wildlife resources and the
18-6 risk of additional, consequential damage to habitats for fish and
18-7 wildlife resources from continued use and occupancy pursuant to the
18-8 easement. Money received shall be deposited to the credit of the
18-9 game, fish, and water safety fund.
18-10 (e) The department may condition easements to ensure
18-11 protection of fish and wildlife resources, navigation, and
18-12 recreation.
18-13 (f) Nothing in this section shall be construed as legalizing
18-14 structures that otherwise are illegal under any other
18-15 constitutional provision, statute, or legal precedent.
18-16 Sec. 86.028. LIABILITY FOR VALUE OF MATERIAL TAKEN. A
18-17 person who takes any substrate material under the jurisdiction of
18-18 the commission in violation of this chapter or a rule adopted under
18-19 this chapter is liable to the state for the value of the material
18-20 taken and the value of any other natural resource under the
18-21 jurisdiction of the department which is damaged or diminished in
18-22 value.
18-23 Sec. 86.029. CIVIL PENALTY. A person who violates any
18-24 provision of this chapter or any rule, lease, easement, permit, or
18-25 order of the department under this chapter is subject to a civil
19-1 penalty of not less than $100 or more than $10,000 for each act of
19-2 violation and for each day of violation, to be recovered as
19-3 provided in this chapter.
19-4 Sec. 86.030. ENFORCEMENT. (a) If a person has violated, is
19-5 violating, or is threatening to violate any provision of this
19-6 chapter or any rule, lease, easement, permit, or order of the
19-7 department issued under this chapter, the director may commence an
19-8 action for injunctive relief to restrain the person from continuing
19-9 the violation or threat of violation, for assessment and recovery
19-10 of the civil penalty under Section 86.029 of this code, for
19-11 recovery of the value of material taken in violation of this
19-12 chapter, or for any appropriate combination of these remedies.
19-13 (b) On application for injunctive relief and a finding that
19-14 a person is violating or threatening to violate any provision of
19-15 this chapter or any rule, lease, easement, permit, or order of the
19-16 department under this chapter, a court shall grant the injunctive
19-17 relief the facts may warrant, without any requirement for bond.
19-18 (c) At the request of the director, the attorney general or
19-19 the county attorney of the county in which the violation or threat
19-20 of violation occurred shall commence an action for injunctive
19-21 relief, to recover a civil penalty, to recover the value of
19-22 material taken in violation of this chapter, or for any appropriate
19-23 combination of these remedies. All amounts recovered shall be
19-24 credited to the game, fish, and water safety fund. In addition,
19-25 the actual cost of investigation, reasonable attorney fees, and
20-1 reasonable expert witness fees also may be recovered, and those
20-2 recovered amounts shall be credited to the same operating funds
20-3 from which expenditures occurred.
20-4 Sec. 86.031. MORE THAN ONE DEFENDANT. If more than one
20-5 defendant is named in an action under this chapter, each defendant
20-6 against whom judgment is rendered is jointly and severally liable
20-7 for the recovery provided by this chapter.
20-8 Sec. 86.032. BOTH CIVIL SUIT AND CRIMINAL PROSECUTION
20-9 PERMISSIBLE. The pendency or determination of either a civil
20-10 action brought under this chapter or a criminal prosecution for the
20-11 same violation does not bar the other action.
20-12 SECTION 2. The phrase "sale of marl, sand, gravel, shell,
20-13 and mudshell" as used in Section 11.032, Parks and Wildlife Code,
20-14 shall be understood to mean "sale or lease of substrate material
20-15 under the authority of Chapter 86 of this code and all application
20-16 or easement fees, civil penalties, or damages collected under the
20-17 authority of Chapter 86."
20-18 SECTION 3. The phrase "sand, shell, and gravel" in Sec.
20-19 11.033, Parks and Wildlife Code, shall be understood to mean
20-20 "substrate material" as defined in Section 86.001, Parks and
20-21 Wildlife Code, as amended by this Act.
20-22 SECTION 4. This Act takes effect September 1, 1993.
20-23 SECTION 5. This Act applies only to an offense committed on
20-24 or after the effective date of this Act. An offense committed
20-25 before the effective date of this Act is governed by the previous
21-1 law, and that law is continued in effect for that purpose. An
21-2 offense is committed before the effective date of this Act if any
21-3 element of the offense is committed before the effective date of
21-4 this Act.
21-5 SECTION 6. This Act applies only to a violation for which a
21-6 civil penalty may be imposed that occurs on or after the effective
21-7 date of this Act.
21-8 SECTION 7. The importance of this legislation and the
21-9 crowded condition of the calendars in both houses create an
21-10 emergency and an imperative public necessity that the
21-11 constitutional rule requiring bills to be read on three several
21-12 days in each house be suspended, and this rule is hereby suspended.