74R10990 CBH-F
By Carter H.B. No. 620
Substitute the following for H.B. No. 620:
By Carter C.S.H.B. No. 620
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to excavation operations that may damage underground
1-3 facilities; providing civil penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. SHORT TITLE. This Act may be cited as the
1-6 Underground Facility Damage Prevention Act.
1-7 SECTION 2. DEFINITIONS. In this Act:
1-8 (1) "Corporation" means the Texas Underground Facility
1-9 Notification Corporation created by this Act.
1-10 (2) "Damage" means:
1-11 (A) the defacing, scraping, displacement,
1-12 penetration, destruction, or partial or complete severance of an
1-13 underground facility or of any protective coating, housing, or
1-14 other protective device of an underground facility;
1-15 (B) the weakening of structural or lateral
1-16 support of an underground facility; or
1-17 (C) the failure to properly replace the backfill
1-18 covering an underground facility.
1-19 (3) "Excavation" means an activity that removes or
1-20 otherwise disturbs soil from its natural setting by use of
1-21 explosives or a motor, engine, hydraulic or pneumatically powered
1-22 tool, or other machine-powered equipment of any kind and includes
1-23 augering, backfilling, boring, compressing, digging, ditching,
1-24 drilling, dragging, dredging, grading, mechanical probing,
2-1 plowing-in, pulling-in, ripping, scraping, trenching, and
2-2 tunneling.
2-3 (4) "Excavator" means a person that excavates or
2-4 intends to excavate in this state.
2-5 (5) "Exploration and production underground facility"
2-6 means an underground facility used by a person producing gas or
2-7 oil, or both, for the production of that gas or oil and includes
2-8 facilities used for field separation, treatment, or storage of gas
2-9 or oil.
2-10 (6) "Legal holiday" means a holiday specified as a
2-11 legal holiday by Subchapter B, Chapter 662, Government Code.
2-12 (7) "Mechanized equipment" means equipment operated by
2-13 mechanical power, including a trencher, bulldozer, power shovel,
2-14 auger, backhoe, scraper, drill, cable or pipe plow, and other
2-15 equipment used to plow-in or pull-in cable or pipe.
2-16 (8) "Notification system" means the notification
2-17 system with which the corporation contracts to provide notification
2-18 services under this Act.
2-19 (9) "Operator" means a person that operates an
2-20 underground facility.
2-21 (10) "Person" means an individual, corporation,
2-22 partnership, association, government or governmental subdivision or
2-23 agency, or other legal entity.
2-24 (11) "Secured facility" means a parcel of land used
2-25 for commercial or industrial purposes that is surrounded entirely
2-26 by a fence or other means of preventing access, including a fence
2-27 with one or more gates that are locked at all times or monitored by
3-1 a person who can prevent unauthorized access.
3-2 (12) "Underground facility" means a line, cable,
3-3 pipeline, system, or structure that is located partially or totally
3-4 underground and that is used to produce, store, convey, transmit,
3-5 or distribute communications, electricity, gas, water, sewage,
3-6 steam, or liquids such as petroleum, petroleum products, or
3-7 hazardous liquids.
3-8 SECTION 3. EXEMPTIONS. (a) The following are not subject
3-9 to this Act as underground facilities:
3-10 (1) an aboveground or underground storage tank, sump,
3-11 or impoundment, or piping connected to an aboveground or
3-12 underground storage tank, sump, or impoundment located in the same
3-13 tract of land as the storage tank, sump, or impoundment;
3-14 (2) an underground facility operated by the owner of a
3-15 secured facility and located entirely within the secured facility;
3-16 (3) an underground facility that serves only the owner
3-17 of the underground facility or the owner's tenant and that is
3-18 located solely on the owner's property;
3-19 (4) piping within a well bore;
3-20 (5) the portion of an exploration and production
3-21 underground facility that is located in the boundaries of an oil or
3-22 gas field and that is not located in the:
3-23 (A) extraterritorial jurisdiction of a
3-24 municipality; or
3-25 (B) boundaries of an established easement or
3-26 right-of-way; or
3-27 (6) an underground facility that serves a cemetery and
4-1 is located solely on the cemetery's property.
4-2 (b) An operator of an underground facility that is exempted
4-3 under this section may voluntarily register that facility under
4-4 this Act.
4-5 SECTION 4. COMPLIANCE BY PERMIT HOLDERS. (a) The fact that
4-6 a person has a legal permit, permission from the owner of the
4-7 property or the owner's licensee, or an easement to conduct
4-8 excavation operations does not affect the person's duty to comply
4-9 with this Act.
4-10 (b) Compliance with this Act does not affect a person's
4-11 responsibility to obtain a permit required by law.
4-12 SECTION 5. TEXAS UNDERGROUND FACILITY NOTIFICATION
4-13 CORPORATION. (a) The Texas Underground Facility Notification
4-14 Corporation is created to provide statewide notification services
4-15 under this Act.
4-16 (b) The corporation is a public nonprofit corporation and
4-17 has all the powers and duties incident to a nonprofit corporation
4-18 under the Texas Non-Profit Corporation Act (Article 1396-1.01, et
4-19 seq., Vernon's Texas Civil Statutes), except that the corporation:
4-20 (1) may not make donations for the public welfare or
4-21 for charitable, scientific, or educational purposes or in aid of
4-22 war activities;
4-23 (2) is not required to file articles of incorporation;
4-24 (3) may not merge or consolidate with another
4-25 corporation;
4-26 (4) is not subject to voluntary or involuntary
4-27 dissolution;
5-1 (5) may not be placed in receivership; and
5-2 (6) is not required to make reports to the secretary
5-3 of state under Article 9.01 of that Act.
5-4 (c) The corporation may not disseminate, make available, or
5-5 otherwise distribute maps or information provided by an operator
5-6 unless that action is necessary to perform the corporation's
5-7 specific obligations under this Act.
5-8 (d) All expenses of the corporation shall be paid from
5-9 income of the corporation. Liabilities created by the corporation
5-10 are not debts of the state, and the corporation may not secure any
5-11 liability with funds or assets of the state. Except as provided by
5-12 Section 7 of this Act, the corporation may not, for any reason,
5-13 impose an assessment, fee, or other charge, including a charge for
5-14 inputting data, against an operator.
5-15 (e) The corporation's member operators are divided into
5-16 divisions according to type of operator. The divisions are:
5-17 (1) intrastate electric utilities;
5-18 (2) interstate electric utilities;
5-19 (3) electric cooperative corporations;
5-20 (4) local exchange telephone companies that have more
5-21 than 31,000 access lines in service in this state;
5-22 (5) interexchange telecommunications carriers;
5-23 (6) telephone cooperative corporations and local
5-24 exchange telephone companies that have 31,000 or fewer access lines
5-25 in service in this state;
5-26 (7) gas distribution operators;
5-27 (8) gas transmission pipeline operators;
6-1 (9) liquid pipeline operators;
6-2 (10) municipal utility districts and water supply and
6-3 sewer service corporations;
6-4 (11) rural and other water districts;
6-5 (12) cable television companies that have fewer than
6-6 1,000 subscribers;
6-7 (13) cable television companies that have 1,000 or
6-8 more subscribers;
6-9 (14) municipalities with a population of less than
6-10 25,000; and
6-11 (15) municipalities with a population of 25,000 or
6-12 more.
6-13 (f) Each division shall elect a representative to serve on
6-14 the board of directors of the corporation. A member operator that
6-15 has operations that can be classified in more than one division is
6-16 entitled to participate in each applicable division. However, not
6-17 more than one employee of that operator may serve on the board at
6-18 any one time. Board membership is voluntary and a director is not
6-19 entitled to receive compensation for serving on the board.
6-20 Directors serve staggered three-year terms, with the terms of five
6-21 directors expiring annually on August 31. A director serves until
6-22 his successor is elected and has assumed office. The board may
6-23 declare a director's office vacant if the director ceases to be
6-24 associated with an operator included in the electing division. A
6-25 vacancy on the board shall be filled by the original electing
6-26 division for the remainder of the unexpired term.
6-27 (g) The board shall elect from among its directors a chair
7-1 and vice chair. The chair and vice chair serve for a term of one
7-2 year and may be reelected.
7-3 (h) The corporation's bylaws must provide that:
7-4 (1) before January 1, 1997, each division is entitled
7-5 to one vote; and
7-6 (2) on or after January 1, 1997, the proportion of the
7-7 total number of votes to which a division is entitled each year is
7-8 equal to the ratio that the amount of revenue that the division
7-9 provided to the corporation during the preceding year bears to the
7-10 total revenue provided by all divisions to the corporation during
7-11 the preceding year.
7-12 (i) The corporation through a request for proposals process
7-13 shall contract with a public or private entity to:
7-14 (1) establish a single notification system to serve
7-15 the entire state;
7-16 (2) establish one notification telephone number for
7-17 use by the entire state;
7-18 (3) receive notification of planned excavations and of
7-19 damage to an underground facility;
7-20 (4) disseminate that information to member operators
7-21 that may be affected by the excavation or damage; and
7-22 (5) ensure notification system network reliability
7-23 (backup).
7-24 (j) The corporation shall solicit proposals for the contract
7-25 to establish and operate the notification system by using a request
7-26 for proposals process that includes specifications for the
7-27 notification system that have been approved by the board of
8-1 directors in accordance with this Act by an affirmative vote of at
8-2 least two-thirds of the total number of votes entitled to be cast.
8-3 (k) Before soliciting requests for proposals, the
8-4 corporation shall prepare and send to each member operator for
8-5 comment the proposed specifications for the notification system and
8-6 the contract. The board shall consider the comments of the member
8-7 operators and shall approve or disapprove those comments during an
8-8 open meeting.
8-9 (l) The corporation shall open each proposal in a manner
8-10 that does not disclose the contents of the proposal during the
8-11 process of negotiating with competing offerors. The corporation
8-12 shall make a written award of a contract to establish and operate
8-13 the notification system to the offeror whose proposal is consistent
8-14 with this Act and is most advantageous to the member operators. In
8-15 determining whether a proposal is most advantageous, the
8-16 corporation shall consider the technology, computer software, and
8-17 other nonprice items of the proposal, including:
8-18 (1) the adequacy and precision of the mapping
8-19 technology proposed by and available from the offeror; and
8-20 (2) the ability of the offeror to transmit
8-21 notifications to the member operators in a manner that conforms
8-22 with each member operator's capability and system for receiving
8-23 those notifications.
8-24 (m) The corporation is not required to award the contract to
8-25 the lowest offeror if the terms of another proposal would result in
8-26 a lower annual cost and are more advantageous to the corporation
8-27 and its members for notification services. The corporation may
9-1 reject all proposals if the corporation finds that none of the
9-2 proposals is acceptable. After the proposals are opened, each
9-3 document relating to the consideration of a proposal or the award
9-4 of a contract and the text of the contract are considered books and
9-5 records of the corporation as that term is used in Article 2.23,
9-6 Texas Non-Profit Corporation Act (Article 1396-2.23, Vernon's Texas
9-7 Civil Statutes).
9-8 (n) An affirmative vote of at least two-thirds of the total
9-9 number of votes entitled to be cast is required to:
9-10 (1) approve the specifications for the notification
9-11 system; or
9-12 (2) award a contract under Subsection (l) of this
9-13 section.
9-14 (o) The corporation or a member of the corporation is not
9-15 subject to civil or criminal liability for any act or omission of
9-16 the notification system.
9-17 SECTION 6. DUTY TO JOIN AND PROVIDE INFORMATION. (a) Each
9-18 operator, including a political subdivision of this state, shall
9-19 join the corporation as a condition of doing business in this
9-20 state.
9-21 (b) Each operator shall provide to the notification system
9-22 with which the corporation contracts:
9-23 (1) maps or grid locations or other identifiers
9-24 approved by the corporation;
9-25 (2) the name and telephone number of a contact person
9-26 or persons; and
9-27 (3) at least quarterly but, if possible, as those
10-1 changes occur, information relating to each change in the
10-2 operator's maps or grid locations or other identifiers or in the
10-3 person or persons designated as the operator's contact person or
10-4 persons.
10-5 (c) The corporation may not require an operator to conduct a
10-6 survey of the operator's underground facilities.
10-7 SECTION 7. FEES AND RATES. (a) Each operator shall pay to
10-8 the board an initial entry fee of $50.
10-9 (b) The notification system shall charge each operator for a
10-10 call made to the system that affects the operator. The board shall
10-11 set the amount of the charge imposed by the system at not more than
10-12 $1.25 for each call made by the system to an affected operator.
10-13 The board may set the initial charge or change the charge only on
10-14 an affirmative vote of at least two-thirds of the total number of
10-15 votes entitled to be cast. The board may increase the charge to an
10-16 amount greater than $1.25 only on an affirmative vote of at least
10-17 three-fourths of the total number of votes entitled to be cast.
10-18 SECTION 8. NOTIFICATION. (a) A person is considered to
10-19 have provided notification under this Act when a person required to
10-20 provide notice under this Act delivers the required information and
10-21 the notification system receives that information within the time
10-22 limits prescribed by this Act.
10-23 (b) A person may deliver information required under this Act
10-24 by any appropriate method, including the use of any electronic
10-25 means of data transfer.
10-26 SECTION 9. DUTY OF CERTAIN EXCAVATORS. (a) Except as
10-27 provided by Sections 11 and 12 of this Act, a person that intends
11-1 to excavate on a tract of land shall notify the notification system
11-2 not earlier than the 14th day before the day the excavation is to
11-3 begin or later than the 48th hour before the time the excavation is
11-4 to begin, excluding Saturdays, Sundays, and legal holidays. The
11-5 excavator may not begin excavation before the time the excavation
11-6 is to begin without the prior written agreement of each operator
11-7 that has an underground facility in the area to be excavated. The
11-8 person must again notify the notification system of the intended
11-9 excavation in accordance with this subsection if the person does
11-10 not begin the excavation within 14 days after notifying the
11-11 notification system, excluding Saturdays, Sundays, and legal
11-12 holidays.
11-13 (b) Until the excavation is completed, the excavator must,
11-14 not later than the 30th day after the last notification, notify the
11-15 notification system by telephone that the excavator has not
11-16 completed the excavation.
11-17 (c) The notice required under this section shall include:
11-18 (1) the name of the person serving the notice;
11-19 (2) the specific location of the proposed area of
11-20 excavation, including:
11-21 (A) the street address, if available, and the
11-22 specific location of the excavation at the street address; and
11-23 (B) if there is no street address, an accurate
11-24 description of the excavation area using any available
11-25 designations;
11-26 (3) the name, address, and telephone number of the
11-27 excavator or the excavator's company;
12-1 (4) the excavator's field telephone number, if one is
12-2 available;
12-3 (5) the starting date and time and the anticipated
12-4 completion date of excavation;
12-5 (6) the type and extent of the proposed work; and
12-6 (7) a statement as to whether explosives will be used.
12-7 (d) If the operator notifies the excavator that the operator
12-8 wants to have a representative present during the excavation, the
12-9 excavator shall provide to the operator notice of intended
12-10 excavation not later than 24 hours before the time excavation will
12-11 begin. The excavator may not begin excavation before the end of
12-12 the 24-hour period without the express agreement of the operator.
12-13 SECTION 10. PRECAUTIONS TO AVOID DAMAGE TO FACILITIES. (a)
12-14 In addition to providing the notice required by Section 9 of this
12-15 Act, the excavator shall:
12-16 (1) plan the excavation to avoid damage to an
12-17 underground facility that is in or near the excavation area, taking
12-18 into consideration any necessary precautions identified by the
12-19 operator;
12-20 (2) maintain a clearance between the underground
12-21 facility and the cutting edge or point of mechanized equipment that
12-22 is reasonably necessary to avoid damage to the facility, as
12-23 provided by Subsection (b) of this section;
12-24 (3) provide support for an underground facility that
12-25 is reasonably necessary to protect the facility during the
12-26 excavation, including any backfill operations; and
12-27 (4) protect and preserve during excavation the marking
13-1 of the location of the underground facility until the marking is
13-2 not necessary for reasonably safe excavation.
13-3 (b) An excavator shall consider the known limit of control
13-4 of the cutting edge or point of a piece of mechanized equipment in
13-5 determining the necessary clearance that must be maintained with
13-6 uncovered surfaces and paved surfaces. The excavator shall use a
13-7 clearance of not less than 24 inches from the outer edge of the
13-8 operator's marks, unless the operator agrees in writing that a
13-9 smaller clearance can safely be used. However, the operator may
13-10 not reasonably withhold an agreement to use a smaller clearance if
13-11 the clearance is reasonable. In determining if the clearance is
13-12 reasonable, the operator may consider the method of excavation to
13-13 be used and the potential for damage, service interruption, and
13-14 loss of revenue.
13-15 (c) The excavator shall notify the operator if the
13-16 operator's underground facility is covered by concrete or asphalt
13-17 that is not an integral part of the underground facility system.
13-18 The excavator may use mechanized equipment to penetrate and
13-19 dislodge the concrete or asphalt, but only until dirt, rock, or
13-20 other natural material is exposed. After dirt, rock, or other
13-21 natural material is exposed, the operator may direct the excavator
13-22 to use one or more specific reasonable methods to expose the
13-23 facility. If the operator does not direct the use of a specific
13-24 method, the excavator shall proceed under the conditions of
13-25 hand-digging within the 24-inch clearance prescribed by Subsection
13-26 (b) of this section.
13-27 SECTION 11. EXCEPTION IN CASE OF EMERGENCY. (a) Section 9
14-1 of this Act does not apply to an emergency excavation that is
14-2 necessary to respond to a situation that endangers life, health, or
14-3 property or a situation in which the public need for service
14-4 compels immediate action.
14-5 (b) The excavator may begin emergency excavation under
14-6 Subsection (a) of this section immediately and shall take
14-7 reasonable precautions to protect underground facilities.
14-8 (c) When an emergency exists, the excavator shall notify the
14-9 notification system by telephone as promptly as reasonably
14-10 possible.
14-11 SECTION 12. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS. (a)
14-12 Section 9 of this Act does not apply to:
14-13 (1) a person who excavates 12 inches or less;
14-14 (2) agricultural activities such as fence installation
14-15 or repair, plowing, cultivating, planting, harvesting, repairing or
14-16 installing drainage tile or ditches, terracing, or similar
14-17 activities in connection with agricultural operations performed by
14-18 a person who owns or leases the property on which the agricultural
14-19 activity is conducted or who is a relative or employee of a person
14-20 who owns or leases the property, unless the activity is conducted
14-21 in the boundaries of an underground facility easement or
14-22 right-of-way and the ground is disturbed at a depth of more than 18
14-23 inches;
14-24 (3) interment operations at a cemetery;
14-25 (4) operations associated with the exploration or
14-26 production of oil and gas if the operations are not conducted
14-27 within an underground facility easement or right-of-way;
15-1 (5) excavations by or for a person that:
15-2 (A) owns or leases or owns a mineral leasehold
15-3 interest in the real property on which the excavation occurs; and
15-4 (B) operates all underground facilities located
15-5 at the excavation site;
15-6 (6) operations at a secured facility if:
15-7 (A) the excavator operates each underground
15-8 facility at the secured facility, other than those within a third
15-9 party underground facility easement or right-of-way; or
15-10 (B) the excavation activity is not within a
15-11 third party underground facility or right-of-way;
15-12 (7) routine railroad maintenance within 15 feet of
15-13 either side of the midline of the track if the maintenance will not
15-14 disturb the ground at a depth of more than 18 inches; and
15-15 (8) a county that performs county road and bridge
15-16 activities if the activities will not disturb the ground at a depth
15-17 of more than 12 inches and are not conducted in the boundaries of
15-18 an underground facility easement or right-of-way.
15-19 (b) A person exempted under Subsection (a)(2) of this
15-20 section may comply with the requirements of this Act relating to an
15-21 excavator and may be treated as an excavator, except that the
15-22 person is not subject to the penalties prescribed by Section 18 of
15-23 this Act.
15-24 SECTION 13. DUTY OF NOTIFICATION SYSTEM. (a) When the
15-25 notification system receives a call from an excavator, the
15-26 notification system shall provide to the excavator the name of each
15-27 member to which notice will be provided under Subsection (b) of
16-1 this section.
16-2 (b) Not later than two hours after the time the notification
16-3 system receives a notice of intent to excavate from an excavator,
16-4 the system shall notify each operator that may have an underground
16-5 facility in the vicinity of the proposed excavation operation. If
16-6 the notification system receives after 4 p.m. or on a Saturday,
16-7 Sunday, or legal holiday a notice of intent to excavate, the
16-8 notification system shall provide the notification required by this
16-9 subsection as soon as possible, but not later than 10 a.m. on the
16-10 first succeeding day that is not a Saturday, Sunday, or legal
16-11 holiday.
16-12 (c) The notification system shall:
16-13 (1) operate 24 hours a day every day of the year;
16-14 (2) operate a statewide toll-free telephone number;
16-15 and
16-16 (3) have the capability to receive emergency
16-17 information 24 hours a day from excavators and to disseminate the
16-18 information to the appropriate operators as soon as the information
16-19 is received.
16-20 (d) The notification system shall maintain for not less than
16-21 four years a record to document:
16-22 (1) the receipt of a notice of intent to excavate;
16-23 (2) the information the excavator is required to
16-24 provide under Section 9(c) of this Act;
16-25 (3) contact with operators; and
16-26 (4) the information the notification system provided
16-27 to the excavator.
17-1 (e) The notification system may not destroy records that
17-2 relate to any matter that is involved in litigation if the system
17-3 knows the litigation has not been finally resolved.
17-4 (f) The notification system shall make the records available
17-5 for inspection by excavators and operators, or their
17-6 representatives, during normal business hours.
17-7 (g) The notification system shall, at all times, maintain a
17-8 minimum of $5 million professional liability and errors and
17-9 omissions insurance to cover duties prescribed by this Act.
17-10 (h) The notification system shall develop public service
17-11 announcements, as directed and approved by the corporation, to
17-12 educate the public about the one-call notification system and its
17-13 availability. The operators may make the announcements in
17-14 conjunction with the operators' public education and awareness
17-15 programs.
17-16 SECTION 14. DUTY OF OPERATOR TO PERSON EXCAVATING. (a) Not
17-17 later than the 48th hour after the excavator gives to the
17-18 notification system notice of intent to excavate, excluding
17-19 Saturdays, Sundays, and legal holidays, or at such time mutually
17-20 agreed to by the operator and the excavator, the operator contacted
17-21 by the notification system shall locate and mark the approximate
17-22 location of its underground facilities at or near the site of the
17-23 proposed excavation if the operator believes that locating and
17-24 marking the location is necessary.
17-25 (b) For the purposes of this section, an excavator may
17-26 presume, unless the operator advises the excavator otherwise, that
17-27 the marking of an approximate location of an underground facility
18-1 is within 18 inches on either side of the underground facility.
18-2 (c) An operator shall refer to the American Public Works
18-3 Association color coding standards when marking.
18-4 SECTION 15. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY
18-5 CIRCUMSTANCE. (a) The deadline prescribed by Section 14(a) of
18-6 this Act does not apply if the operator experiences an
18-7 extraordinary circumstance due to an act of God, including a
18-8 tornado, a hurricane, an ice storm, or a severe flood, or a war or
18-9 riot, that limits personnel or resources needed to fulfill its
18-10 obligations under this Act.
18-11 (b) The operator shall notify the notification system of the
18-12 extraordinary circumstance and shall include in the notification:
18-13 (1) the nature of the extraordinary circumstance;
18-14 (2) the expected duration of the situation and the
18-15 approximate time at which the operator will be able to resume
18-16 location request activities; and
18-17 (3) the name and telephone number of the individual
18-18 that the notification system can contact if there is an emergency
18-19 that requires the operator's immediate attention.
18-20 (c) In addition to the notification required by Subsection
18-21 (b) of this section, the operator shall also notify each excavator
18-22 that has a pending location request and shall include in the
18-23 notification:
18-24 (1) the fact that the operator is experiencing an
18-25 extraordinary circumstance; and
18-26 (2) the approximate time at which the operator will
18-27 mark the requested location.
19-1 (d) The notification system shall inform each excavator
19-2 notifying the system under Section 9 of this Act that the
19-3 operator's location request activities are suspended until the
19-4 extraordinary circumstance has discontinued or has been corrected.
19-5 SECTION 16. EXCAVATION DAMAGE. (a) If an excavation
19-6 operation results in damage to an underground facility, the
19-7 excavator shall immediately contact the facility operator to report
19-8 the damage.
19-9 (b) If the excavator is not certain of the operator's
19-10 identity, the excavator shall contact the notification system to
19-11 report the damage, and the notification system shall immediately
19-12 notify by telephone each operator that has underground facilities
19-13 in or near the area in which the damage occurred.
19-14 (c) Only the operator or a person authorized by the operator
19-15 may perform repairs.
19-16 (d) An excavator shall delay backfilling in the immediate
19-17 area of the damage until the damage is repaired unless the operator
19-18 authorizes the backfilling.
19-19 (e) If damage endangers life, health, or property because of
19-20 the presence of flammable material, the excavator shall keep
19-21 sources of ignition away.
19-22 SECTION 17. INJUNCTION. (a) An operator may file an action
19-23 in a district court for an injunction to enjoin excavation
19-24 conducted in violation of this Act.
19-25 (b) Venue for a suit brought under this section is in a
19-26 county in which all or part of the excavation occurs.
19-27 SECTION 18. CIVIL PENALTY. (a) An excavator that violates
20-1 this Act is liable for a civil penalty of not less than $250 or
20-2 more than $1,000. If it is found at the trial on a civil penalty
20-3 that the excavator has violated this Act and has been assessed a
20-4 penalty under this section one other time during the three years
20-5 preceding the date of the most recent violation, the excavator is
20-6 liable for a civil penalty of not less than $1,000 or more than
20-7 $2,000. If it is found at the trial on a civil penalty that the
20-8 excavator has violated this Act and has been assessed a penalty
20-9 under this section at least two other times during the three years
20-10 preceding the date of the most recent violation, the excavator is
20-11 liable for a civil penalty of not less than $2,000 or more than
20-12 $5,000.
20-13 (b) Venue for a cause of action under this section is in:
20-14 (1) the county in which all or part of the alleged
20-15 violation occurred;
20-16 (2) the county in which the defendant has its
20-17 principal place of business in this state; or
20-18 (3) the county in which the defendant resides, if in
20-19 this state.
20-20 (c) The appropriate county attorney or criminal district
20-21 attorney shall bring the action to recover the civil penalty at the
20-22 request of an operator of an underground facility.
20-23 (d) If it is found that a violation of this Act occurred
20-24 entirely in an area that is not within a municipality's corporate
20-25 limits:
20-26 (1) 25 percent of the civil penalty collected under
20-27 this section shall be transferred to the county treasurer of the
21-1 county in which all or a majority of the violation occurred; and
21-2 (2) 75 percent of the civil penalty collected under
21-3 this section shall be transferred to the corporation.
21-4 (e) If it is found that a violation of this Act occurred
21-5 entirely or partially in an area that is within the corporate
21-6 limits of a municipality:
21-7 (1) 50 percent of the civil penalty collected under
21-8 this section shall be transferred to the corporation;
21-9 (2) 25 percent of the civil penalty collected under
21-10 this section shall be transferred to that municipality's treasurer;
21-11 and
21-12 (3) 25 percent of the civil penalty collected under
21-13 this section shall be transferred to the county treasurer of the
21-14 county in which all or a majority of the violation occurred.
21-15 (f) The county treasurer shall deposit all money received
21-16 under this section in the general fund of the county.
21-17 (g) The municipal treasurer shall deposit all money received
21-18 under this section in a special fund or in the municipality's
21-19 general fund.
21-20 (h) The corporation shall use money received under this
21-21 section to develop public service announcements for the
21-22 notification system as prescribed by Section 13(h) of this Act.
21-23 SECTION 19. INITIAL CORPORATION BOARD. (a) Not later than
21-24 January 1, 1996, each division of the Texas Underground Facility
21-25 Notification Corporation shall elect a representative to serve on
21-26 the board. After the initial election:
21-27 (1) the directors elected from the intrastate electric
22-1 utilities, interstate electric utilities, and electric cooperative
22-2 corporations shall draw lots to determine which director shall
22-3 serve a term expiring August 31, 1997, which director shall serve a
22-4 term expiring August 31, 1998, and which director shall serve a
22-5 term expiring August 31, 1999;
22-6 (2) the directors elected from the local exchange
22-7 telephone companies that have more than 31,000 access lines in
22-8 service in this state, interexchange telecommunications carriers,
22-9 and telephone cooperative corporations and local exchange telephone
22-10 companies that have 31,000 or fewer access lines in service in this
22-11 state shall draw lots to determine which director shall serve a
22-12 term expiring August 31, 1997, which director shall serve a term
22-13 expiring August 31, 1998, and which director shall serve a term
22-14 expiring August 31, 1999;
22-15 (3) the directors elected from the gas distribution
22-16 operators, gas transmission pipeline operators, and liquid
22-17 pipeline operators shall draw lots to determine which director
22-18 shall serve a term expiring August 31, 1997, which director shall
22-19 serve a term expiring August 31, 1998, and which director shall
22-20 serve a term expiring August 31, 1999;
22-21 (4) the directors elected from the municipal utility
22-22 districts and water supply and sewer service corporations, rural
22-23 and other water districts, and cable television companies that have
22-24 fewer than 1,000 subscribers shall draw lots to determine which
22-25 director shall serve a term expiring August 31, 1997, which
22-26 director shall serve a term expiring August 31, 1998, and which
22-27 director shall serve a term expiring August 31, 1999; and
23-1 (5) the directors elected from the cable television
23-2 companies that have 1,000 or more subscribers, municipalities with
23-3 a population of less than 25,000, and municipalities with a
23-4 population of 25,000 or more shall draw lots to determine which
23-5 director shall serve a term expiring August 31, 1997, which
23-6 director shall serve a term expiring August 31, 1998, and which
23-7 director shall serve a term expiring August 31, 1999.
23-8 (b) If a division does not elect a representative by January
23-9 1, 1996, the office allocated to that division is considered
23-10 vacant and shall be filled as soon as possible by that division for
23-11 the remainder of the unexpired term.
23-12 (c) The board of the Texas Underground Facility Notification
23-13 Corporation shall hold its first meeting on January 15, 1996.
23-14 SECTION 20. EFFECTIVE DATE. (a) This Act takes effect
23-15 September 1, 1995.
23-16 (b) Each operator shall pay the initial entry fee required
23-17 by Section 7 of this Act not later than January 1, 1996.
23-18 (c) The first proposed specifications for the contract for
23-19 the notification system shall be sent to the member operators for
23-20 notice and comment as prescribed by Section 5(k) of this Act as
23-21 soon as practicable, but not later than April 1, 1996. The
23-22 corporation shall award the initial contract for the notification
23-23 system as soon as practicable, but not later than September 1,
23-24 1996.
23-25 (d) The notification system shall begin operating not later
23-26 than January 1, 1997.
23-27 SECTION 21. EMERGENCY. The importance of this legislation
24-1 and the crowded condition of the calendars in both houses create an
24-2 emergency and an imperative public necessity that the
24-3 constitutional rule requiring bills to be read on three several
24-4 days in each house be suspended, and this rule is hereby suspended.