BILL ANALYSIS
H.B. 2510
By: Wilson
4-10-95
Committee Report (Amended)
BACKGROUND
Chapter 34 of the Water Code deals with the regulation and
licensing of irrigators and irrigation systems. This chapter sets
out pertinent definitions, licensing requirements, rulemaking
authority and penalty provisions dealing with the irrigation
industry.
PURPOSE
HB 2510 provides for clean-up measures relating to the irrigator
licensing program at the Texas Natural Resource Conservation
Commission. It clarifies items that did not get properly changed
when the independent Board of Irrigators was put under the control
of the TNRCC.
RULEMAKING AUTHORITY
It is the committee's opinion that the TNRCC is granted express
rulemaking authority at Section 4, page 10, lines 5-6 of the bill
(Section 34.007(f), Water Code).
It is the committee's opinion that the TNRCC is granted express
rulemaking authority at Section 5, page 11, lines 21-23 of the bill
(Section 34.009(f), Water Code).
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the definition section, Section 34.001 as
follows:
(2) "Commission" means the Texas Natural Resource
Conservation Commission.
Deletes existing definition of "Department" and changes it to
"Commission".
(7) "Licensed irrigator" means an irrigator who has
prequalified and is licensed under Chapter 34.
Adds the requirement of prequalification to the definition of
licensed irrigator.
(9) "Licensed installer" means an installer who has
prequalified and is licensed under Chapter 34.
Adds the requirement of prequalification to the definition of
licensed installer.
Section 34.002(a) is amended to clarify that "[t]he licensure
requirements of this chapter (Chapter 34) do not apply to the
additional people who:
(4) repair work if the work does not constitute extension
of an existing system or replacing an existing system; or
(7) a hose-end irrigation system product.
These additions clarify that licensure requirements do not
apply to people doing exclusively repair work or using irrigation
products you can attach to the end of a hose.
(b) A person who is exempt from the licensure requirements
of this chapter (Chapter 34) shall comply with the standards
established by this chapter and the rules adopted under this
chapter.
Paragraph (b) makes it clear that being exempt from licensure
does not release a person from complying with the statutes and
rules governing irrigation systems.
SECTION 2. Amends Section 34.003 of the Water code as
follows:
(a) Changes the term "department" to "commission".
(d) Changes the term "department" to "commission".
The changes in (a) and (d) make the paragraphs conform to the
definition set forth in Section 1 of the bill, Section 34.001(2) of
the Act.
(g) The members of the council serve 6-year terms with the
terms of 2 members expiring on February 1st of each odd-numbered
year.
Paragraph (g) clarifies the existing language setting out the
terms of council members and makes their terms expire on February
1st instead of September 15th.
(h) A member is entitled to reimbursement for travel
expenses, including meals and lodging, as provided in the General
Appropriations Act.
Changes the allowable expense provision to permit
reimbursement for meals and lodging in addition to travel costs.
(i) The council shall elect a chairman by majority vote of
the members at the first meeting each fiscal year.
This clarifies that the council is to elect its chairman at
the first meeting of the fiscal year; rather than the calendar
year.
SECTION 3. Amends Sections 34.004(b) and (c), Water Code, as
follows:
(b) Changes "department" to "commission".
This conforms the paragraph to the definition in Section 1 of
the bill (Section 34.001(2)).
(c) Changes "department" to "commission". Changes the
reference to the Administrative Procedure and Texas Register Act to
"Chapter 2001, Government Code". Changes reference to the open
meetings law to "Chapter 551, Government Code".
These changes conform the paragraph to the definitions in
Section 1 of the bill (Section 34.001(2)) and conforms the cites in
the paragraph to the correct new cites in the Government Code.
SECTION 4. Amends Sections 34.005, 34.006, 34.007 and 34.008
as follows:
Sec. 34.005(a)-(c). Commission Finances. Changes
"department" to "commission".
Changes the term "department" to "commission" to conform the
section to the definition of commission in Section 1 (Sec.
34.001(2)).
(d) Sections 404.094 and 404.095, Government Code, do not
apply to the Texas irrigators fund.
Provides that the Texas irrigators fund is continued.
Sec. 34.006(a)-(h). Rules. Changes "department" to
"commission".
Changes the term "department" to "commission" to conform the
section to the definition of commission in Section 1 (Sec.
34.001(2)).
(i) The commission shall establish criteria for
accreditation of training courses and continuing education programs
for licensed landscape irrigators and installers.
Amends existing section to make continuing education mandatory
for licensed landscape irrigators and installers, instead of the
voluntary programs that are allowed under current law.
(j) The commission shall establish criteria for accreditation
and approval of instructors and establish standards for
instructional studies to prepare applicants for an exam
administered by the commission. Changes "department" to
"commission".
Amends existing language to mandate the establishment by the
commission of criteria for accreditation of instructors for courses
to prepare license applicants for licensing exams.
Sec. 34.007. Registration Requirement.
(a) No person may act as a licensed irrigator or installer
unless he has a certificate of registration under this chapter.
Amends existing language to provide that a person may not act
as a licensed irrigator/installer unless registered.
(b) Changes "department" to "commission". Provides for
prequalification of persons to be registered.
Changes the term "department" to "commission" to conform the
paragraph to the definition of commission in Section 1 (Sec.
34.001(2)).
(c) Changes "department" to "commission". Sets exam fee at
$200 maximum for irrigators and $150 for installers.
Amends existing language to conform the paragraph to the
definition of commission in Section 1 (Sec. 34.001(2)). Doubles
maximum exam fee to $200 for irrigators and $150 for installers.
(d) A person registered under this chapter shall not be
required to comply with the licensing requirements of other state
agencies in order to perform any function within the scope of the
registration issued under this chapter.
Amends existing language to provide that a person registered
under the Act needs no other licenses to act as an irrigator or
installer. Expands the acts for which other licensing is not
required from only connecting to private or public water supply
systems.
(e) Not later than the 45th day after completing an
examination administered by the commission, a person shall be sent
his exam results. If an applicant who fails the exam makes a
written request to the commission for an analysis of the person's
performance on the exam, the commission shall provide such an
analysis not later than the 60th day after the request.
Amends existing language to increase the time the commission
has to report exam results from 30 to 45 days. Increases the time
the commission has to respond to a person who failed the exam that
requests an analysis of the person's performance from 30 to 60
days. Changes "department" to "commission" to conform with the
definition of commission in Section 1 (Sec. 34.001(2)).
(f) The commission shall adopt rules establishing classes
of certificates and fees.
Adds a new paragraph (f) to allow the commission to adopt
rules creating classes of certificates and fees for those
certificates.
Sec. 34.008. Reciprocity. (a) Changes "department" to
"commission". Allows commission to determine criteria for
reciprocal licensing of persons licensed in other states and
counties.
Amends existing language to conform to the definition of
commission in Section 1 (Sec. 34.001(2)).
(b) The fee for an application for registration by
reciprocity shall not exceed $200 for a licensed irrigator or $150
for a licensed installer.
Amends existing language to double the maximum applications
fees for licensing by reciprocity to $200 for irrigators and $150
for installers. Changes "department" to "commission" to conform
with the definition of commission in Section 1 (Sec. 34.001(2)).
SECTION 5. Amends Section 34.009, Water Code, as follows:
(b) Not later than the 30th day before the date on which a
certificate of registration expires, the commission shall notify
the person of the impending expiration in writing at the person's
last known address as shown on the records of the commission.
Amends existing language to provide for 30 day written notice
to be given to a person before his certificate expires. The notice
must be sent to the person's address as shown in commission
records.
(c) A person may renew an unexpired certificate of
registration by paying to the commission the required renewal fee.
Amends existing language to provide that renewals of
certificates may be done by paying a renewal fee to the commission.
(d) If a persons' certificate of registration has been
expired for 90 days or less, the person may renew the certificate
by paying the renewal fee to the commission, plus a penalty equal
to one-half the appropriate examination fee.
Adds a new paragraph to provide for renewal of certificates
that have been expired for less than 90 days upon payment of a fee
equal to the normal renewal fee plus a penalty of one-half the exam
fee. Conforms statute to standard provision in other similar
statutes.
(e) If a person's certificate of registration has been
expired for over 90 days, the certificate may not be renewed. The
person may get a new certificate by taking the appropriate
examination and complying with the requirements for an original
certificate.
Adds a new paragraph providing that a certificate that was
expired for over 90 days cannot be renewed. The person must meet
all the requirements of a person seeking an original certificate.
(f) The commission by rule may adopt a system under which
certificates expire at various dates throughout the year. For the
year in which the expiration date is changed, the commission shall
prorate fees appropriately.
Adds a new paragraph providing that the commission may set up
a system whereby certificates expire at various dates during the
year. During the year that such a system is set up, the renewal
fees shall be prorated on a monthly basis.
SECTION 6. Amends Section 34.010, Water Code, as follows:
(a)-(h) Changes "department" to "commission" wherever the
word appears.
Changes "department" to "commission" to conform with the
definition of commission set forth in Section 1 (Sec. 34.001(2)).
Deletes existing paragraph (f) dealing with quarterly notice to
parties to a complaint as to the status of the complaint.
SECTION 7. Amends Section 34.011, 34.012 and 34.013, Water
Code, as follows:
Sec. 34.011 (a)-(c). A person licensed under this chapter, a
person who is required to be licensed under this chapter, or a
person exempted from licensure under this chapter who violates an
applicable provision of this chapter or a rule adopted by the
commission is subject to an administrative penalty. Changes
"department" to "commission".
Clarifies existing language to ensure that persons covered by
the licensing requirements or exemptions under this chapter may be
assessed administrative penalties for violation of the Act or rules
of the commission. Changes "department" to "commission" to conform
to the definition of commission in Section 1 (Sec. 34.001(2)).
(e) Increases from 14th to 30th day the date by which the
executive director must give written notice of a violation to the
person charged.
(f) Increases from 20th to 30th day as the date by which the
person charged must accept or reject the executive director's
determination.
Paragraphs (e) and (f) amend existing language to increase the
time the executive director has to make a violation determination,
and that the person charged has to accept or reject the
determination of the executive director.
(g)-(i) Changes "department" to "commission". Changes the
reference to the Administrative Procedure and Texas Register Act to
Section 2001, Government Code, to conform the citation.
(j) A person charged with a penalty that is administratively
final may pay the penalty in full, pay the penalty and file for
judicial review contesting the fact of the violation or the amount
of the penalty, or not pay the penalty and file for judicial review
of the occurrence of the violation or the amount of the penalty.
Amends existing language to provide a mechanism for not paying
the penalty while the penalty is up on judicial review.
(k) Within 30 days of a penalty assessment, a person
choosing not to pay the penalty while the matter is up on judicial
review may (1) stay enforcement of the penalty by:
(a) paying the penalty into escrow; or
(b) giving a supersedeas bond to the court for the
amount of the penalty.
or (2) request the court to stay the enforcement of the penalty by:
(a) filing with the court an affidavit stating that
the person is financially unable to pay the penalty
or give the supersedeas
bond; and
(b) sending a copy of the affidavit with the
executive director.
Amends existing language to provide for staying the
enforcement of a penalty by paying the penalty into escrow, filing
a supersedeas bond, or filing a pauper's affidavit with the court.
(l) The executive director may contest the pauper's
affidavit by filing a contest of the affidavit with the court
within 5 days after receiving a copy of the affidavit. The court
shall hold a hearing on the contest, and the person filing the
affidavit has the burden of proving that the person is financially
unable to pay the penalty or give the supersedeas bond.
Amends existing language by setting up a method for contesting
the pauper's affidavit and consideration of the contest by the
court.
(m) Changes "department" to "commission". Changes cite to
Administrative Procedure and Texas Register Act to Chapter 2001,
Government Code.
Changes "department" to "commission" to conform the definition
of commission to Section 1 (Sec. 34.001(2)). Changes the cite of
the Administrative Procedures Act to conform to current cite.
(n) Provides for remittance of the penalty back to the
person charged if the person paid the penalty while it was on
judicial review.
Amends existing language to provide for remittance of the
penalty paid if the court, on judicial review, reduces or does not
assess a penalty.
Sec. 34.012. Injunction. (a) A person not licensed under
this chapter is subject to civil penalties for violation of the
Act.
Amends existing language to strike existing paragraph (a)
dealing with false representation of licensed irrigator or
installer, and instead includes in the penalty provision of
paragraph (b) any person who violates the chapter as being subject
to civil penalties.
(b)-(d) Changes "department" to "commission".
Changes "department" to "commission" to conform the definition
of commission to Section 1 (Sec. 34.001(2)).
(e) A party to an action brought under this section related
to civil penalties and injunctions may appeal a final judgment as
in all civil cases.
Amends existing law by adding a paragraph providing for
judicial review of a civil penalty or an injunction.
Sec. 34.013. Enforcement of Act. Changes "department" to
"commission".
Changes "department" to "commission" to conform the definition
of commission to Section 1 (Sec. 34.001(2)).
SECTION 8. Recreates the special fund called the Texas
irrigators fund for the purposes set forth in the chapter.
SECTION 9. Continues the term of members serving on the Texas
irrigators advisory council to February 1st of the next year if the
member's term is set to expire on September 15th. Conforms to
Section 34.003, Water Code, as amended by this bill.
SECTION 10. Effective date September 1, 1995.
SECTION 11. Emergency clause.
EXPLANATION OF AMENDMENTS
Committee Amentment No.1: On page 3, between lines 24 and 25,
adds a new paragraph (10) to Section 34.002 to exclude irrigation
or yard sprinkler work done by a property owner, or at his or her
direction, on premises owned by the property owner if the system is
not connected to a private or public water supply system from
licensure requirements.
Committee Amendment No.2: On page 8, lines 11-26, deletes
subsections (i) and (j) of Section 34.006, Water Code, in their
entirety.
SUMMARY OF COMMITTEE ACTION
H.B.2510 was considered by the committee in a public hearing on
April 10, 1995.
The following persons testified in favor of the bill:
Mr. John C. Sofyanas, representing himself and Texas Turf
Irrigation Association;
Mr. Joe H. Key, representing himself and Irrigator Advisory
Council.
The following persons testified against the bill: None (0).
The following persons testified on the bill: None (0).
The committee considered two (2) amendments to the bill. Each of
the two (2) amendments was adopted without objection.
The bill was reported favorably as amended, with the recommendation
that it do pass and be printed, by a record vote of 8 ayes, 0 nays,
0 pnv, and 1 absent.