1-1 By: Truan S.B. No. 1345
1-2 (In the Senate - Filed April 5, 1993; April 6, 1993, read
1-3 first time and referred to Committee on Natural Resources;
1-4 May 4, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; May 4, 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. 1345 By: Truan
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to the management of state-owned marl, sand, gravel,
1-24 shell, mudshell, and other substrate material; providing penalties.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Chapter 86, Parks and Wildlife Code, is amended
1-27 to read as follows:
1-28 CHAPTER 86. MARL, SAND, GRAVEL, SHELL, AND MUDSHELL
1-29 Sec. 86.001. DEFINITIONS. In this chapter:
1-30 (1) "Substrate material" means marl, sand, gravel,
1-31 shell, and mudshell located within the tidewater and freshwater
1-32 limits of the state and on islands within these limits.
1-33 (2) "Operations" means digging, dredging, or
1-34 excavation activities that produce the actual movement of
1-35 substantial amounts of substrate material.
1-36 Sec. 86.002. MANAGEMENT AND PROTECTION. (a) The commission
1-37 shall manage, control, and protect all substrate material <marl and
1-38 sand of commercial value and all gravel, shell, and mudshell>
1-39 located within:
1-40 (1) the tidewater limits of the state<,> and on
1-41 islands within those limits; or
1-42 (2) <, and within> the freshwater areas of the state
1-43 not embraced by a survey of private land, and on islands within
1-44 those areas.
1-45 (b) The commission shall manage, control, and protect sand
1-46 and gravel located within the bed of any stream or other body of
1-47 water covered by Chapter 138, Acts of the 41st Legislature, Regular
1-48 Session, 1929 (Article 5414a, Vernon's Texas Civil Statutes), or
1-49 Chapter 232, Acts of the 54th Legislature, 1955 (Article 5414a-1,
1-50 Vernon's Texas Civil Statutes), in which the state has retained
1-51 title, right, or interests in and to sand and gravel.
1-52 Sec. 86.003 <86.002>. LEASE OR PERMIT REQUIRED<; PENALTY>.
1-53 (a) Except as provided in Subsection (b) of this section or a rule
1-54 adopted pursuant to Section 86.021 of this code, no <No> person may
1-55 disturb or take substrate material <marl, sand, gravel, shell, or
1-56 mudshell> under the management and protection of the commission <or
1-57 operate in or disturb any oyster bed or fishing water> for any
1-58 purpose without having:
1-59 (1) a lease from the commission pursuant to Section
1-60 86.022 of this code for activities conducted for the primary
1-61 purpose of recovering substrate materials for commercial sale; or
1-62 (2) a permit from the department pursuant to Section
1-63 86.005 or 86.022 of this code for other types of activities.
1-64 (b) Activity under the authorization of or with the
1-65 permission of the General Land Office or School Land Board is
1-66 exempt from this chapter. Dredging or excavating <other than that>
1-67 necessary or incidental to navigation projects constructed by or
1-68 for an agency of the <or dredging under state or> federal
2-1 government is exempt from the requirement for a lease or permit
2-2 under this chapter <authority without first having acquired from
2-3 the commission a permit authorizing the activity>.
2-4 (c) The exemption of any activity in this chapter from the
2-5 requirements to obtain a lease or permit shall not be an exemption
2-6 from the requirement to pay the state for the taking and conversion
2-7 of significant amounts of substrate materials.
2-8 <(b) Each day's operation in violation of this section
2-9 constitutes a separate offense.>
2-10 Sec. 86.004 <86.003>. APPLICATION FOR PERMIT. (a) A person
2-11 desiring a new or renewed permit to take or disturb substrate
2-12 materials for any purpose other than primarily for commercial sale
2-13 of those materials may apply to the department <commission>.
2-14 (b) The application must be in writing; <and> must describe
2-15 the area in which authorization to operate is sought, the type and
2-16 quantity of substrate material to be disturbed or taken, and the
2-17 purpose of the operation; and must include all other information
2-18 reasonably required by the department.
2-19 Sec. 86.005 <86.004>. GRANTING OF PERMIT. The department
2-20 <commission> may grant a permit to an applicant who has complied
2-21 with all requirements of the commission's regulations <commission>
2-22 if the department <commission> finds that the disturbing or<,>
2-23 taking<, and carrying away> of substrate material <marl, sand,
2-24 gravel, shell, or mudshell> will not cause significant injurious
2-25 effect to navigation, the coastal sediment budget, recreation, or
2-26 fish and wildlife resources including habitat; will not
2-27 significantly contribute to increased erosion; and will not be
2-28 inconsistent with any formally adopted provision of the state's
2-29 coastal management plan.<:>
2-30 <(1) damage or injuriously affect any island, reef,
2-31 bar, channel, river, creek, or bayou used for navigation, or any
2-32 oysters, oyster beds, or fish in or near the water used in the
2-33 operation; and>
2-34 <(2) change or injuriously affect any current that
2-35 would affect navigation.>
2-36 <Sec. 86.005. ECONOMIC CONSIDERATIONS. In determining
2-37 whether or not a permit should be granted, the commission shall
2-38 consider the injurious effect on oysters, oyster beds, and fish in
2-39 or near the water used in the operation as well as the needs of
2-40 industry for marl, sand, gravel, shell, and mudshell and its
2-41 relative value to the state for commercial use.>
2-42 Sec. 86.006. PERMIT. (a) The permit must <shall> identify
2-43 the person authorized to disturb or<,> take substrate material, <or
2-44 carry away marl, sand, gravel, shell, or mudshell and shall>
2-45 describe the type and amount <nature> of the material that may be
2-46 disturbed or<,> taken, and provide for payment to the department
2-47 for removal of substrate material<, or carried away>.
2-48 (b) The permit must <shall> describe the area where the
2-49 operation may occur and <shall> state the purpose and nature of the
2-50 operation.
2-51 (c) Consistent with commission rules, the <The> permit may
2-52 contain other terms and conditions, including but not limited to
2-53 conditions requiring:
2-54 (1) monitoring of potential adverse effects;
2-55 (2) operational restrictions designed to minimize
2-56 adverse effects; and
2-57 (3) mitigation of unavoidable adverse effects on
2-58 habitats for terrestrial or aquatic organisms.
2-59 Sec. 86.007. <PERMITS NOT ASSIGNABLE. A permit issued under
2-60 this chapter is not assignable.>
2-61 <Sec. 86.008.> DENIAL OF PERMIT. If the department
2-62 <commission> refuses to grant a permit to an applicant, it shall
2-63 make a full written finding of facts explaining the reason for the
2-64 refusal.
2-65 Sec. 86.008 <86.009>. TERMINATION AND REVOCATION OF PERMITS.
2-66 (a) The failure or refusal by the holder of a permit to comply
2-67 with any term or condition of the permit, any provision of this
2-68 chapter, or any rule adopted pursuant to this chapter shall
2-69 constitute grounds for <operates as an immediate termination and>
2-70 revocation of all rights conferred or claimed under the permit and
3-1 the forfeiture of any bond.
3-2 (b) Permits may be issued for any term up to one year.
3-3 (c) The department may renew a permit for additional terms
3-4 of up to one year if:
3-5 (1) the permittee demonstrates good cause for not
3-6 having completed operations during the previous term;
3-7 (2) the permittee demonstrates compliance with all
3-8 permit conditions; and
3-9 (3) the department determines that renewal is
3-10 consistent with the commission's regulations.
3-11 Sec. 86.009. RULEMAKING AUTHORITY. The commission may make
3-12 rules for the consideration of applications; the setting and
3-13 collection of fees for the processing of applications; the
3-14 assessment of transcript costs in contested case proceedings; the
3-15 imposition of conditions on permits, leases, and easements; the
3-16 issuance of permits by rule; the pricing and terms of payment for
3-17 substrate material; the assignability of permits, leases, and
3-18 easements; the payment of refunds; the renewal of permits, leases,
3-19 and easements; and all other matters necessary for the
3-20 administration of this chapter.
3-21 Sec. 86.010. Removal and Replanting of Oysters and Oyster
3-22 Beds. (a) To prevent damage incidental to operations authorized
3-23 by a permit or lease, the department <The commission> may remove
3-24 oysters and oyster beds and replant them in other natural or
3-25 artificial reefs if the department <commission> finds that the
3-26 operations authorized by the permit might adversely affect those
3-27 oysters or oyster beds and that the removal and replanting will
3-28 benefit the growth and propagation or the betterment of oysters and
3-29 oyster beds or fishing conditions.
3-30 (b) The removal and replanting of oysters and oyster beds
3-31 shall be at the expense of the holder of the <person holding a
3-32 permit or of an applicant for a> permit or lease and not the state.
3-33 (c) Before authorizing the removal and replanting of oysters
3-34 or oyster beds, the department <commission> shall give notice to
3-35 interested parties and hold a hearing on the subject.
3-36 Sec. 86.011. EXCLUSION OF OTHERS. Any right granted by
3-37 lease, permit, or easement shall entitle the grantee to only such
3-38 use of the river or streambed as is necessary to accomplish the
3-39 purpose of the lease, permit, or easement and may not be used to
3-40 exclude anyone from use of the permitted area for any other
3-41 legitimate purpose. <NO SPECIAL PRIVILEGES. No special privileges
3-42 or exclusive rights may be granted to any person to take marl,
3-43 sand, gravel, shell, or mudshell or to operate in or on any place
3-44 under this chapter.>
3-45 Sec. 86.012. Sales of Materials. (a) The commission shall
3-46 set the price for substrate material taken under a permit or lease
3-47 issued pursuant to this chapter. The commission may set the price
3-48 as a percentage of the market value of materials taken or as a
3-49 price per unit volume. Regardless of the method chosen, substrate
3-50 materials shall be sold or leased<, with the approval of the
3-51 governor, may sell marl, sand, gravel, shell, and mudshell> for a
3-52 price that is not less than 25 <four> cents for each cubic yard <a
3-53 ton>.
3-54 (b) The department or, as appropriate, the commission may
3-55 require other terms and conditions for the sale of substrate
3-56 material, including payment in kind with substrate material if the
3-57 department determines that payment in kind would benefit oysters,
3-58 oyster beds, fisheries, or other fish or wildlife habitats <marl,
3-59 sand, gravel, shell, and mudshell>.
3-60 (c) Payment for substrate materials taken pursuant to
3-61 permits or leases <sales> shall be made to the department and,
3-62 along with money from application and other fees, shall be
3-63 deposited to the credit of the game, fish, and water safety fund
3-64 <commission>.
3-65 (d) Substrate material <Marl, sand, gravel, shell, and
3-66 mudshell> may be removed without payment to the department
3-67 <commission> if removed:
3-68 (1) from land or flats patented to a navigation
3-69 district by the state for any use on the land or flats or on any
3-70 adjoining land or flats for any purpose for which the land or flats
4-1 may be used under the authority of the patent to the district;<,>
4-2 or
4-3 (2) <if removed> to provide access to a boat ramp
4-4 under Section 31.141(c) of this code.
4-5 Sec. 86.013. Use on Roads. (a) A county, subdivision of a
4-6 county, state agency, or municipality <city, or town> that has a
4-7 permit to take substrate material <marl, sand, gravel, shell, or
4-8 mudshell> is not required to make payment to the department for
4-9 substrate material <purchase marl, sand, gravel, shell, or
4-10 mudshell> taken and used for public roads and streets.
4-11 (b) A county, subdivision of a county, state agency, or
4-12 municipality <city, or town> that purchases substrate material
4-13 <marl, sand, gravel, shell, or mudshell> for use on public roads
4-14 and streets from a holder of a permit who has purchased the
4-15 material from the department <commission> may receive a refund of
4-16 the amount paid by the permit holder by submitting a sworn itemized
4-17 account of an official of the county, subdivision of the county,
4-18 state agency, or municipality <city, or town>. All refunds under
4-19 this subsection must be approved by the department <commission> and
4-20 be paid by the comptroller by warrant.
4-21 (c) The Texas Department of Transportation <State Highway
4-22 Commission> may receive a refund of the amount paid to the
4-23 department <commission> for the purchase of substrate material
4-24 <marl, sand, gravel, shell, or mudshell> used by the Texas
4-25 Department of Transportation <highway commission> on public roads.
4-26 Funds collected under this chapter may be used for payment of
4-27 refunds under this subsection and Subsection (b) of this section.
4-28 (d) The commission may adopt rules <make regulations> for
4-29 the payment of refunds under this section.
4-30 Sec. 86.014. USE FOR SEAWALLS, ETC. (a) The department
4-31 <commission> shall grant to any county or municipality<, city, or
4-32 town> that is authorized under Title 118, Revised <Civil> Statutes
4-33 <of Texas, 1925>, to build and maintain seawalls a permit for the
4-34 taking of substrate material <marl, sand, gravel, shell, or
4-35 mudshell> to be used for the building, extending, protecting,
4-36 maintaining, or improving any seawall, breakwater, levee, dike,
4-37 floodway, or drainway or for purposes of beach nourishment or
4-38 erosion control.
4-39 (b) <Permits under this section shall be issued under
4-40 regulations established by the commission.>
4-41 <(c)> A county or municipality<, city, or town> taking
4-42 substrate material <marl, sand, gravel, shell, or mudshell> under
4-43 this section is not required to make payment to the department for
4-44 <purchase> the material <marl, sand, gravel, shell, or mudshell>.
4-45 Sec. 86.015. SAND FROM CORPUS CHRISTI AND NUECES BAYS. Sand
4-46 and other deposits having no commercial value may be taken from
4-47 Corpus Christi and Nueces bays for filling and raising the grade of
4-48 the salt flats in the northern part of the city of Corpus Christi
4-49 and the lowlands lying north of the north boundary line of the city
4-50 of Corpus Christi, in Nueces County, and south of the south
4-51 boundary line of the city of Portland, in San Patricio County,
4-52 without making payments for it to the department <commission>.
4-53 Sec. 86.016 <86.0151>. Use to Open Brown Cedar Cut. (a) A
4-54 nonprofit corporation, fund, or foundation exempted from federal
4-55 income taxes under Section 503(c)(3), Internal Revenue Code of 1986
4-56 <1954, as amended> (26 U.S.C. Sec. 503(c)(3)), may take substrate
4-57 material <sand, gravel, marl, shell, and mudshell> from Brown Cedar
4-58 Cut in Matagorda County for the sole purpose of opening and
4-59 reopening that passage between the Gulf of Mexico and East
4-60 Matagorda Bay.
4-61 (b) The fee required by Section 86.012 of this code does not
4-62 apply to substrate material <sand, gravel, marl, shell, or
4-63 mudshell> taken under Subsection (a) of this section, and that
4-64 substrate material <sand, gravel, marl, shell, and mudshell> may be
4-65 deposited on private land.
4-66 Sec. 86.017 <86.0152>. Use to Open Cedar Bayou. (a) A
4-67 nonprofit corporation, fund, or foundation exempted from federal
4-68 income taxes under Section 501(c)(3), Internal Revenue Code of 1986
4-69 <1954, as amended> (26 U.S.C. Sec. 501(c)(3)), or a political
4-70 subdivision of the state may take substrate material <sand, gravel,
5-1 marl, shell, and mudshell> from Cedar Bayou in Aransas County for
5-2 the sole purpose of opening and reopening that passage between the
5-3 Gulf of Mexico and Mesquite Bay.
5-4 (b) The fee required by Section 86.012 of this code does not
5-5 apply to substrate material <sand, gravel, marl, shell, or
5-6 mudshell> taken under Subsection (a) of this section, and that
5-7 substrate material <sand, gravel, marl, shell, and mudshell> may be
5-8 deposited on private land.
5-9 <Sec. 86.016. DEPOSIT OF FUNDS. The proceeds from the sale
5-10 of marl, sand, gravel, shell, and mudshell shall be deposited in
5-11 the special game and fish fund.>
5-12 <Sec. 86.017. USE OF FUNDS. Funds collected by the
5-13 commission from the sale of marl, sand, gravel, shell, and mudshell
5-14 may be used for the enforcement of the provisions of this chapter,
5-15 the payment of refunds, and the construction and maintenance of
5-16 fish hatcheries. No less than three-fourths of the proceeds from
5-17 the sale of marl, sand, gravel, shell, and mudshell, after the
5-18 payment of refunds, shall be used for the construction and
5-19 maintenance of fish hatcheries.>
5-20 Sec. 86.018. TAKING FROM CERTAIN AREAS PROHIBITED. No
5-21 person may take substrate material <marl, sand, gravel, shell,> or
5-22 other material from any place between a seawall and the water's
5-23 edge, from a beach or shoreline within 300 feet of the mean low
5-24 tide, or within one-half mile of the end of any seawall, for any
5-25 purpose other than activity under the authorization of the General
5-26 Land Office or the School Land Board or dredging or excavating
5-27 <that> necessary or incidental to navigation projects constructed
5-28 by or for an agency of the <or dredging under> state or federal
5-29 government <authority>. The authority to dredge or fill pursuant
5-30 to a permit issued under the authority of Section 401 or 404 of the
5-31 federal Clean Water Act (33 U.S.C. Section 1341 or 1344) does not
5-32 exempt any person from the requirements of this section.
5-33 Sec. 86.019. OIL AND GAS LESSEES. This chapter does not
5-34 require the holder of an oil and gas lease executed by the state to
5-35 obtain a permit from the department <commission> to exercise any
5-36 right granted under the lease or other laws of this state.
5-37 Sec. 86.020. PENALTY. (a) A person who violates Section
5-38 86.003, <86.002 or> 86.018, or 86.026 of this code or any rule
5-39 adopted pursuant to this chapter commits an offense that is a Class
5-40 A <C> Parks and Wildlife Code misdemeanor.
5-41 (b) A person who violates any provision of a permit,
5-42 easement, or lease issued pursuant to this chapter commits an
5-43 offense that is a Class B Parks and Wildlife Code misdemeanor.
5-44 (c) Each day that a violation occurs under this section
5-45 constitutes a separate offense.
5-46 Sec. 86.021. EXEMPTIONS. The commission by rule may exempt
5-47 types of projects resulting in insignificant takings or
5-48 disturbances of substrate material from the requirements of
5-49 obtaining a permit and paying the department for materials taken on
5-50 a finding that the takings or disturbances will not:
5-51 (1) deprive the state of significant revenue from
5-52 substrate material;
5-53 (2) result in significant adverse effects on
5-54 navigation, the coastal sediment budget, or fish and wildlife
5-55 resources including habitat; or
5-56 (3) significantly increase erosion.
5-57 Sec. 86.022. PERMIT BY RULE. (a) The commission by rule
5-58 may establish conditions pursuant to which certain activities are
5-59 authorized without the requirement of individual permits under this
5-60 chapter. An activity conducted in accordance with those conditions
5-61 shall be considered to be undertaken pursuant to a permit.
5-62 (b) The rules shall establish requirements for advance
5-63 notification to the department by any person proposing to rely on
5-64 the authorization provided for in this section and, as appropriate,
5-65 requirements for reporting to the department during and on
5-66 completion of the activity. The rules may provide for waiver of
5-67 the requirement for advance notification in emergency situations.
5-68 The commission may require a nonrefundable processing fee to be
5-69 submitted with the notification.
5-70 (c) The department shall have the option under those rules
6-1 of requiring an individual permit for any proposed activity.
6-2 (d) The rules shall establish requirements for public
6-3 notification of the proposed activity so that the public may be
6-4 provided with an opportunity to comment to the department on the
6-5 appropriateness of requiring an individual permit.
6-6 (e) The rules shall establish best management practices that
6-7 must be followed in order to minimize potential adverse effects to
6-8 resources under the commission's jurisdiction.
6-9 Sec. 86.023. LEASE FOR COMMERCIAL SALE. (a) Any person
6-10 desiring to take substrate materials primarily for the purpose of
6-11 commercial sale may apply to the commission for a lease. The
6-12 commission may issue leases for any term up to 24 months in length.
6-13 (b) The application shall be submitted to the director on a
6-14 form provided by the department and shall be accompanied by a
6-15 nonrefundable application fee in an amount determined by the
6-16 commission to cover reasonable costs of reviewing the application.
6-17 Sec. 86.024. COMMISSION CONSIDERATION OF APPLICATIONS FOR
6-18 LEASES. (a) If the director determines the application is
6-19 complete, the director shall present the application to the
6-20 commission for consideration. The director shall recommend
6-21 conditions appropriate for protection of fish and wildlife
6-22 resources, recreation, and navigation and conditions to minimize
6-23 the potential for increased erosion.
6-24 (b) All applications for leases presented to the commission
6-25 shall be considered in public session.
6-26 Sec. 86.025. DECISION CRITERIA FOR LEASES. (a) The
6-27 commission may grant a lease only if the commission determines that
6-28 granting the lease:
6-29 (1) will not cause significant adverse effects to fish
6-30 or wildlife resources, recreation, or navigation;
6-31 (2) is consistent with any formally adopted provisions
6-32 of the state's coastal management plan;
6-33 (3) will not significantly affect the coastal sediment
6-34 budget;
6-35 (4) is consistent with commission regulations; and
6-36 (5) is not detrimental to the public interest.
6-37 (b) The commission shall have discretion to deny or
6-38 condition any requested lease.
6-39 Sec. 86.026. REVOCATION OF LEASES. (a) The failure or
6-40 refusal by the holder of a lease to comply with any term or
6-41 condition of the lease, any provision of this chapter, or any rule
6-42 adopted pursuant to this chapter shall constitute grounds for
6-43 immediate termination and revocation of all privileges conferred or
6-44 claimed under the lease.
6-45 (b) When the department has reason to believe that grounds
6-46 for revocation or termination exist, the department shall notify
6-47 the lessee in writing of those grounds.
6-48 (c) The lessee shall have 30 days from the date of receipt
6-49 of notice to respond and to present information concerning the
6-50 occurrence of or reasons for any failure to comply with applicable
6-51 requirements.
6-52 (d) After the expiration of the 30-day period set out in
6-53 Subsection (c) of this section, the director may issue a
6-54 declaration of revocation if the director determines that the
6-55 lessee has failed, without adequate justification, to comply with a
6-56 substantial term or condition of the lease, any provision of this
6-57 chapter, or any rule adopted pursuant to this chapter. On
6-58 notification of the declaration of revocation by the director, the
6-59 lessee's privileges under the lease are suspended. However, the
6-60 lessee's duties to make payment to the department for materials
6-61 previously taken, to undertake mitigation for adverse effects, and
6-62 to keep and make available records are continued in effect.
6-63 (e) If the director issues a declaration of revocation, the
6-64 lessee may appeal that decision by filing a written appeal to the
6-65 commission. That appeal must be filed with the director within 14
6-66 days of written notification to the lessee of the director's
6-67 declaration of revocation.
6-68 (f) If a lessee timely files a notice of appeal, the lease
6-69 is continued in effect but remains subject to the suspension of
6-70 privileges. If the lessee does not timely file a notice of appeal,
7-1 the lease is terminated.
7-2 (g) On receipt of a timely notice of appeal, the director
7-3 shall present the appeal to the commission at the earliest feasible
7-4 commission meeting.
7-5 (h) If the commission determines that the lessee has failed
7-6 to comply with a substantial term or condition of the lease, any
7-7 provision of this chapter, or any rule adopted pursuant to this
7-8 chapter, the commission may uphold the declaration of revocation
7-9 and permanently revoke all privileges under the lease or modify the
7-10 lease. The commission also may overturn the declaration of
7-11 revocation, which action shall have the effect of reinstating the
7-12 lease privileges. The commission's decision on the appeal shall be
7-13 final.
7-14 Sec. 86.027. EASEMENTS TO MAINTAIN STRUCTURES IN STATE-OWNED
7-15 STREAMBEDS. (a) No person may place or maintain any structure
7-16 into or across any state-owned, navigable, freshwater river or
7-17 stream without first obtaining an easement from the department if
7-18 any phase of construction of the structure results in the
7-19 disturbance or taking of substrate material.
7-20 (b) Structures constructed pursuant to a permit issued under
7-21 the authority of the Water Code and crossings or bridges for public
7-22 roads are exempt from the requirements of this section.
7-23 (c) The commission by rule may create additional exemptions
7-24 from the requirements of this section on the basis of public
7-25 safety, administrative necessity, or insignificant effects on
7-26 habitats for fish and wildlife resources.
7-27 (d) The commission shall establish by rule reasonable fees
7-28 for the processing and review of applications for easements and the
7-29 prices for the granting of the easements. Fees may take into
7-30 account the actual costs of processing, and the prices may take
7-31 into account, in addition to any normal fee for occupation of
7-32 space, damage to habitats for fish and wildlife resources and the
7-33 risk of additional, consequential damage to habitats for fish and
7-34 wildlife resources from continued use and occupancy pursuant to the
7-35 easement. Money received shall be deposited to the credit of the
7-36 game, fish, and water safety fund.
7-37 (e) The department may condition easements to ensure
7-38 protection of fish and wildlife resources, navigation, and
7-39 recreation.
7-40 (f) Nothing in this section shall be construed as legalizing
7-41 structures that otherwise are illegal under any other
7-42 constitutional provision, statute, or legal precedent.
7-43 Sec. 86.028. LIABILITY FOR VALUE OF MATERIAL TAKEN. A
7-44 person who takes any substrate material under the jurisdiction of
7-45 the commission in violation of this chapter or a rule adopted under
7-46 this chapter is liable to the state for the value of the material
7-47 taken and the value of any other natural resource under the
7-48 jurisdiction of the department which is damaged or diminished in
7-49 value.
7-50 Sec. 86.029. CIVIL PENALTY. A person who violates any
7-51 provision of this chapter or any rule, lease, easement, permit, or
7-52 order of the department under this chapter is subject to a civil
7-53 penalty of not less than $100 or more than $10,000 for each act of
7-54 violation and for each day of violation, to be recovered as
7-55 provided in this chapter.
7-56 Sec. 86.030. ENFORCEMENT. (a) If a person has violated, is
7-57 violating, or is threatening to violate any provision of this
7-58 chapter or any rule, lease, easement, permit, or order of the
7-59 department issued under this chapter, the director may commence an
7-60 action for injunctive relief to restrain the person from continuing
7-61 the violation or threat of violation, for assessment and recovery
7-62 of the civil penalty under Section 86.029 of this code, for
7-63 recovery of the value of material taken in violation of this
7-64 chapter, or for any appropriate combination of these remedies.
7-65 (b) On application for injunctive relief and a finding that
7-66 a person is violating or threatening to violate any provision of
7-67 this chapter or any rule, lease, easement, permit, or order of the
7-68 department under this chapter, a court shall grant the injunctive
7-69 relief the facts may warrant, without any requirement for bond.
7-70 (c) At the request of the director, the attorney general or
8-1 the county attorney of the county in which the violation or threat
8-2 of violation occurred shall commence an action for injunctive
8-3 relief, to recover a civil penalty, to recover the value of
8-4 material taken in violation of this chapter, or for any appropriate
8-5 combination of these remedies. All amounts recovered shall be
8-6 credited to the game, fish, and water safety fund. In addition,
8-7 the actual cost of investigation, reasonable attorney fees, and
8-8 reasonable expert witness fees also may be recovered, and those
8-9 recovered amounts shall be credited to the same operating funds
8-10 from which expenditures occurred.
8-11 Sec. 86.031. MORE THAN ONE DEFENDANT. If more than one
8-12 defendant is named in an action under this chapter, each defendant
8-13 against whom judgment is rendered is jointly and severally liable
8-14 for the recovery provided by this chapter.
8-15 Sec. 86.032. BOTH CIVIL SUIT AND CRIMINAL PROSECUTION
8-16 PERMISSIBLE. The pendency or determination of either a civil
8-17 action brought under this chapter or a criminal prosecution for the
8-18 same violation does not bar the other action.
8-19 SECTION 2. The phrase "sale of marl, sand, gravel, shell,
8-20 and mudshell" as used in Section 11.032, Parks and Wildlife Code,
8-21 shall be understood to mean "sale or lease of substrate material
8-22 under the authority of Chapter 86 of this code and all application
8-23 or easement fees, civil penalties, or damages collected under the
8-24 authority of Chapter 86."
8-25 SECTION 3. The phrase "sand, shell, and gravel" in Sec.
8-26 11.033, Parks and Wildlife Code, shall be understood to mean
8-27 "substrate material" as defined in Section 86.001, Parks and
8-28 Wildlife Code, as amended by this Act.
8-29 SECTION 4. This Act takes effect September 1, 1993.
8-30 SECTION 5. This Act applies only to an offense committed on
8-31 or after the effective date of this Act. An offense committed
8-32 before the effective date of this Act is governed by the previous
8-33 law, and that law is continued in effect for that purpose. An
8-34 offense is committed before the effective date of this Act if any
8-35 element of the offense is committed before the effective date of
8-36 this Act.
8-37 SECTION 6. This Act applies only to a violation for which a
8-38 civil penalty may be imposed that occurs on or after the effective
8-39 date of this Act.
8-40 SECTION 7. The importance of this legislation and the
8-41 crowded condition of the calendars in both houses create an
8-42 emergency and an imperative public necessity that the
8-43 constitutional rule requiring bills to be read on three several
8-44 days in each house be suspended, and this rule is hereby suspended.
8-45 * * * * *
8-46 Austin,
8-47 Texas
8-48 May 4, 1993
8-49 Hon. Bob Bullock
8-50 President of the Senate
8-51 Sir:
8-52 We, your Committee on Natural Resources to which was referred S.B.
8-53 No. 1345, have had the same under consideration, and I am
8-54 instructed to report it back to the Senate with the recommendation
8-55 that it do not pass, but that the Committee Substitute adopted in
8-56 lieu thereof do pass and be printed.
8-57 Sims,
8-58 Chairman
8-59 * * * * *
8-60 WITNESSES
8-61 No witnesses appeared on S.B. No. 1345.