By Bosse H.B. No. 970
74R65 JJT-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the consideration of an economic benefit gained by a
1-3 person through a violation of law when calculating certain
1-4 penalties against that person for that violation.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 12.020, Agriculture Code, is amended by
1-7 amending Subsections (b), (c), (d), and (e) and adding Subsections
1-8 (q), (r), and (s) to read as follows:
1-9 (b) The minimum penalty for a violation is an amount equal
1-10 to the greater of an amount established by the department under
1-11 Subsection (q) of this section or the economic benefit gained by
1-12 the violator through the violation. The maximum penalty for a
1-13 violation is an amount equal to the economic benefit gained by the
1-14 violator through the violation plus an amount not to exceed the
1-15 maximum amount provided by Subsection (c) of this section <The
1-16 penalty for each violation may be in an amount not to exceed the
1-17 maximum provided by Subsection (c) of this section>. Each day a
1-18 violation continues or occurs may be considered a separate
1-19 violation for purposes of penalty assessments.
1-20 (c) The provisions of this code subject to this section and
1-21 the applicable penalty amounts, subject to Subsection (b) of this
1-22 section, are as follows:
1-23 Provision Maximum Penalty
1-24 Chapters 13, 14, 61, 101, 102, 103, and 132 $ 500
2-1 Subchapter B, Chapter 71 $2,000
2-2 Subchapters A and C, Chapter 71
2-3 Chapters 72, 73, and 74 $5,000.
2-4 (d) In determining whether the amount of the penalty should
2-5 exceed the minimum penalty under Subsection (b) of this section,
2-6 the department shall consider:
2-7 (1) the seriousness of the violation, including but
2-8 not limited to the nature, circumstances, extent, and gravity of
2-9 the prohibited acts, and the hazard or potential hazard created to
2-10 the health or safety of the public;
2-11 (2) the economic damage to property or the environment
2-12 caused by the violation;
2-13 (3) the history of previous violations;
2-14 (4) the amount necessary to deter future violations;
2-15 (5) efforts to correct the violation; and
2-16 (6) any other matter that justice may require.
2-17 (e) If, after investigation of a possible violation and the
2-18 facts surrounding that possible violation, the department
2-19 determines that a violation has occurred, the department may issue
2-20 a violation report stating the facts on which the conclusion that a
2-21 violation occurred is based, recommending that an administrative
2-22 penalty under this section be imposed on the person charged, and
2-23 recommending the amount of that proposed penalty. The department
2-24 shall base the recommended amount of the proposed penalty on the
2-25 seriousness of the violation determined by consideration of the
2-26 factors set forth in Subsection (d) of this section, except that
2-27 the penalty may not be less than an amount equal to the greater of
3-1 an amount established by the department under Subsection (q) of
3-2 this section or the economic benefit gained by the violator through
3-3 the violation.
3-4 (q) For the purpose of determining the minimum penalty under
3-5 Subsection (b) of this section, the department shall establish an
3-6 amount for each type of violation to which this section applies
3-7 that all violators must pay even if the economic benefit gained by
3-8 the violator through the violation is less than the amount. In
3-9 setting the amount, the department shall consider the costs it
3-10 incurs in determining economic benefit under this section.
3-11 (r) The department shall adopt guidelines to refer to the
3-12 attorney general for civil action:
3-13 (1) a significant violation of a provision of this
3-14 code described by Subsection (c) of this section or a rule or order
3-15 adopted by the department under a provision of this code described
3-16 by Subsection (c) of this section; and
3-17 (2) a person who repeatedly violates a provision of
3-18 this code described by Subsection (c) of this section or a rule or
3-19 order adopted by the department under a provision of this code
3-20 described by Subsection (c) of this section.
3-21 (s) The Texas Natural Resource Conservation Commission by
3-22 rule shall define "economic benefit" for the purpose of this
3-23 section.
3-24 SECTION 2. Section 76.1555, Agriculture Code, is amended by
3-25 amending Subsections (a), (b), (c), and (d) and adding Subsections
3-26 (r), (s), and (t) to read as follows:
3-27 (a) If a person violates a provision of Chapter 75 or 76 of
4-1 this code administered by the department or a rule or order
4-2 adopted by the department under either of those chapters, the
4-3 department may assess an administrative penalty against the person
4-4 as provided by this section. The minimum penalty for a violation
4-5 is an amount equal to the greater of an amount established by the
4-6 department under Subsection (r) of this section or the economic
4-7 benefit gained by the violator through the violation. The maximum
4-8 penalty for a violation is an amount equal to the economic benefit
4-9 gained by the violator through the violation plus an amount not to
4-10 exceed the maximum amount specified by Subsection (b) of this
4-11 section.
4-12 (b) Subject to Subsection (a) of this section, the <The>
4-13 penalty may be in an amount not to exceed $2,000 for each
4-14 violation, provided that the penalty shall not exceed $4,000 for
4-15 all violations related to a single incident. Subject to Subsection
4-16 (a) of this section, the <The> department shall establish a
4-17 schedule stating the types of violations possible under Chapters 75
4-18 and 76 of this code and the maximum fine applicable to each type of
4-19 violation. The department is not required to comply with
4-20 Subchapter B, Chapter 2001, Government Code <Section 5,
4-21 Administrative Procedure and Texas Register Act (Article 6252-13a,
4-22 Vernon's Texas Civil Statutes)>, when establishing or revising the
4-23 schedule. The department shall publish the initial schedule and
4-24 any subsequent revision in the Texas Register before the schedule
4-25 or revision is implemented.
4-26 (c) In determining whether the amount of the penalty should
4-27 exceed the minimum penalty under Subsection (a) of this section,
5-1 the department shall consider:
5-2 (1) the seriousness of the violation, including but
5-3 not limited to the nature, circumstances, extent, and gravity of
5-4 the prohibited acts, and the hazard or potential hazard created to
5-5 the health or safety of the public;
5-6 (2) the economic damage to property or the environment
5-7 caused by the violation;
5-8 (3) the history of previous violations;
5-9 (4) the amount necessary to deter future violations;
5-10 (5) efforts to correct the violation; and
5-11 (6) any other matter that justice may require.
5-12 (d) If, after investigation of a possible violation and the
5-13 facts surrounding that possible violation, the department
5-14 determines that a violation has occurred, the department may issue
5-15 a violation report stating the facts on which the conclusion that a
5-16 violation occurred is based and may recommend that an
5-17 administrative penalty under this section be imposed on the person
5-18 charged and recommending the amount of that proposed penalty. The
5-19 department shall base the recommended amount of the proposed
5-20 penalty on the seriousness of the violation determined by
5-21 consideration of the factors set forth in Subsection (c) of this
5-22 section, except that the penalty may not be less than an amount
5-23 equal to the greater of an amount established by the department
5-24 under Subsection (r) of this section or the economic benefit gained
5-25 by the violator through the violation.
5-26 (r) For the purpose of determining the minimum penalty under
5-27 Subsection (a) of this section, the department shall establish an
6-1 amount for each type of violation to which this section applies
6-2 that all violators must pay even if the economic benefit gained by
6-3 the violator through the violation is less than the amount. In
6-4 setting the amount, the department shall consider the costs it
6-5 incurs in determining economic benefit under this section.
6-6 (s) The department shall adopt guidelines to refer to the
6-7 attorney general for civil action:
6-8 (1) a significant violation of this chapter or Chapter
6-9 75 of this code or of a rule or order adopted under those chapters;
6-10 and
6-11 (2) a person who repeatedly violates this chapter or
6-12 Chapter 75 of this code or a rule or order adopted under those
6-13 chapters.
6-14 (t) The Texas Natural Resource Conservation Commission by
6-15 rule shall define "economic benefit" for the purpose of this
6-16 section.
6-17 SECTION 3. Section 242.066, Health and Safety Code, is
6-18 amended by amending Subsections (b), (d), and (e) and adding
6-19 Subsections (f), (g), and (h) to read as follows:
6-20 (b) The minimum penalty for a violation is an amount equal
6-21 to the greater of an amount established by the department under
6-22 Subsection (f) or the economic benefit gained by the violator
6-23 through the violation. The maximum penalty for a violation is an
6-24 amount equal to the economic benefit gained by the violator through
6-25 the violation plus an amount not to exceed $10,000 a day <The
6-26 penalty may not exceed $10,000 a day for each violation>.
6-27 (d) Subject to Subsection (b), the <The> board shall
7-1 establish gradations of penalties in accordance with the relative
7-2 seriousness of the violation.
7-3 (e) In determining whether the amount of a penalty should
7-4 exceed the minimum penalty under Subsection (b), the department
7-5 shall consider any matter that justice may require, including:
7-6 (1) the gradations of penalties established under
7-7 Subsection (d);
7-8 (2) the seriousness of the violation, including the
7-9 nature, circumstances, extent, and gravity of the prohibited act
7-10 and the hazard or potential hazard created by the act to the health
7-11 or safety of the public;
7-12 (3) the history of previous violations;
7-13 (4) deterrence of future violations; and
7-14 (5) efforts to correct the violation.
7-15 (f) For the purpose of determining the minimum penalty under
7-16 Subsection (b), the department shall establish an amount for each
7-17 type of violation to which this section applies that all violators
7-18 must pay even if the economic benefit gained by the violator
7-19 through the violation is less than the amount. In setting the
7-20 amount, the department shall consider the costs it incurs in
7-21 determining economic benefit under this section.
7-22 (g) The department shall adopt guidelines to refer to the
7-23 attorney general for civil action:
7-24 (1) a significant violation of this chapter or of a
7-25 rule or order adopted or license issued under this chapter; and
7-26 (2) a person who repeatedly violates this chapter or a
7-27 rule or order adopted or license issued under this chapter.
8-1 (h) The Texas Natural Resource Conservation Commission by
8-2 rule shall define "economic benefit" for the purpose of this
8-3 section.
8-4 SECTION 4. Section 242.068, Health and Safety Code, is
8-5 amended by adding Subsection (f) to read as follows:
8-6 (f) The penalty must be an amount equal to or greater than
8-7 the minimum penalty under Section 242.066.
8-8 SECTION 5. Section 361.251, Health and Safety Code, is
8-9 amended by amending Subsections (b), (c), and (d) and adding
8-10 Subsections (v), (w), and (x) to read as follows:
8-11 (b) The minimum penalty for a violation is an amount equal
8-12 to the greater of an amount established by the department under
8-13 Subsection (v) or the economic benefit gained by the violator
8-14 through the violation. The maximum penalty for a violation is an
8-15 amount equal to the economic benefit gained by the violator through
8-16 the violation plus an amount not to exceed $10,000 a day <The
8-17 amount of the penalty may not exceed $10,000 a day for a person who
8-18 violates this chapter or a rule, order, license, or permit issued
8-19 under this chapter>. Each day a violation continues may be
8-20 considered a separate violation.
8-21 (c) In determining whether the amount of the penalty should
8-22 exceed the minimum penalty under Subsection (b), the department
8-23 shall consider:
8-24 (1) the seriousness of the violation, including the
8-25 nature, circumstances, extent, and gravity of the prohibited act
8-26 and the hazard or potential hazard created to the health or safety
8-27 of the public;
9-1 (2) the history of previous violations;
9-2 (3) the amount necessary to deter future violations;
9-3 (4) efforts to correct the violation; and
9-4 (5) any other matters that justice may require.
9-5 (d) If, after examination of a possible violation and the
9-6 facts surrounding that possible violation, the department concludes
9-7 that a violation has occurred, the department may issue a
9-8 preliminary report:
9-9 (1) stating the facts that support the conclusion;
9-10 (2) recommending that a civil penalty under this
9-11 section be imposed; and
9-12 (3) recommending the amount of the penalty, which
9-13 shall be based on the seriousness of the violation as determined
9-14 from the facts surrounding the violation, except that the penalty
9-15 may not be less than an amount equal to the greater of an amount
9-16 established by the department under Subsection (b) or the economic
9-17 benefit gained by the violator through the violation.
9-18 (v) For the purpose of determining the minimum penalty under
9-19 Subsection (b), the department shall establish an amount for each
9-20 type of violation to which this section applies that all violators
9-21 must pay even if the economic benefit gained by the violator
9-22 through the violation is less than the amount. In setting the
9-23 amount, the department shall consider the costs it incurs in
9-24 determining economic benefit under this section.
9-25 (w) The department shall adopt guidelines to refer to the
9-26 attorney general for civil action:
9-27 (1) a significant violation of a provision of this
10-1 chapter that is under the department's jurisdiction or a rule
10-2 adopted by the board of health or order, license, or permit issued
10-3 by the department under this chapter; and
10-4 (2) a person who repeatedly violates a provision of
10-5 this chapter that is under the department's jurisdiction or a rule
10-6 adopted by the board of health or order, license, or permit issued
10-7 by the department under this chapter.
10-8 (x) The commission by rule shall define "economic benefit"
10-9 for the purpose of this section.
10-10 SECTION 6. Section 361.252, Health and Safety Code, is
10-11 amended by amending Subsections (b), (c), (d), and (h) and adding
10-12 Subsections (r), (s), and (t) to read as follows:
10-13 (b) The minimum penalty for a violation is an amount equal
10-14 to the greater of an amount established by the commission under
10-15 Subsection (r) or the economic benefit gained by the violator
10-16 through the violation. The maximum penalty for a violation is an
10-17 amount equal to the economic benefit gained by the violator through
10-18 the violation plus an amount not to exceed $10,000 a day <The
10-19 amount of the penalty may not exceed $10,000 a day for a person who
10-20 violates this chapter or a rule, order, or permit issued under this
10-21 chapter>. Each day a violation continues may be considered a
10-22 separate violation.
10-23 (c) In determining whether the amount of the penalty should
10-24 exceed the minimum penalty under Subsection (b), the commission
10-25 shall consider:
10-26 (1) the nature, circumstances, extent, duration, and
10-27 gravity of the prohibited act with special emphasis on the hazard
11-1 or potential hazard created to the health or safety of the public;
11-2 (2) the impact of the violation on a receiving stream
11-3 or underground water reservoir, on the property owners along a
11-4 receiving stream or underground water reservoir, and on water users
11-5 of a receiving stream or underground water reservoir;
11-6 (3) with respect to the alleged violator:
11-7 (A) the history and extent of previous
11-8 violations;
11-9 (B) the degree of culpability, including whether
11-10 the violation was attributable to mechanical or electrical failures
11-11 and whether the violation could have been reasonably anticipated
11-12 and avoided;
11-13 (C) the demonstrated good faith, including
11-14 actions taken by the alleged violator to rectify the cause of the
11-15 violation; and
11-16 (D) <economic benefit gained by the violation;
11-17 and>
11-18 <(E)> the amount necessary to deter future
11-19 violations; and
11-20 (4) any other matters that justice may require.
11-21 (d) If, after examination of a possible violation and the
11-22 facts surrounding that possible violation, the executive director
11-23 concludes that a violation has occurred, the executive director may
11-24 issue a preliminary report:
11-25 (1) stating the facts that support the conclusion;
11-26 (2) recommending that a civil penalty under this
11-27 section be imposed; and
12-1 (3) recommending the proposed <amount of the> penalty
12-2 in an amount equal to or greater than the minimum penalty under
12-3 Subsection (b), considering<, which shall be based on> the factors
12-4 prescribed by Subsection (c), including an analysis of each factor
12-5 for the commission.
12-6 (h) If the person charged requests or the commission orders
12-7 a hearing, the commission shall order and shall give notice of the
12-8 hearing. The commission by order may find that a violation has
12-9 occurred and may assess a civil penalty, may find that a violation
12-10 has occurred but that no penalty should be assessed, or may find
12-11 that no violation has occurred. In making a penalty decision, the
12-12 commission shall determine the economic benefit gained by the
12-13 violator through the violation and analyze each factor prescribed
12-14 by Subsection (c). All proceedings under this subsection are
12-15 subject to Chapter 2001, Government Code <the Administrative
12-16 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
12-17 Civil Statutes)>.
12-18 (r) For the purpose of determining the minimum penalty under
12-19 Subsection (b), the commission shall establish an amount for each
12-20 type of violation to which this section applies that all violators
12-21 must pay even if the economic benefit gained by the violator
12-22 through the violation is less than the amount. In setting the
12-23 amount, the commission shall consider the costs it incurs in
12-24 determining economic benefit under this section.
12-25 (s) The commission shall adopt guidelines to refer to the
12-26 attorney general for civil action:
12-27 (1) a significant violation of this chapter or a rule
13-1 or order adopted under this chapter concerning solid waste that is
13-2 under the commission's jurisdiction or a solid waste permit or
13-3 registration issued by the commission under this chapter; and
13-4 (2) a person who repeatedly violates this chapter or a
13-5 rule or order adopted under this chapter concerning solid waste
13-6 that is under the commission's jurisdiction or a solid waste permit
13-7 or registration issued by the commission under this chapter.
13-8 (t) The commission by rule shall define "economic benefit"
13-9 for the purpose of this section.
13-10 SECTION 7. Section 366.0921, Health and Safety Code, is
13-11 amended to read as follows:
13-12 Sec. 366.0921. Civil Penalty. A person <(a) An owner> who
13-13 violates any provision of this subchapter or any rule, permit, or
13-14 order issued pursuant to this chapter is subject to a civil penalty
13-15 in an amount not less than the applicable minimum penalty under
13-16 Section 366.0924(b) and not more than the applicable maximum
13-17 penalty under that subsection <of not less than $100 nor more than
13-18 $500 for each act of violation and for each day of violation.
13-19 ((b) Any other person who violates any provision of this
13-20 subchapter or any rule, permit, or order issued pursuant to this
13-21 chapter is subject to a civil penalty of not less than $500 nor
13-22 more than $5,000 for each act of violation and for each day of
13-23 violation>.
13-24 SECTION 8. Section 366.0924, Health and Safety Code, is
13-25 amended by amending Subsections (b) and (c) and adding Subsections
13-26 (l), (m), and (n) to read as follows:
13-27 (b) A person who violates this chapter or a rule, order, or
14-1 permit issued pursuant to this chapter is subject to a civil
14-2 penalty. Each day of a continuing violation may be considered a
14-3 separate violation. The minimum penalty for a violation is an
14-4 amount equal to the greater of an amount established by the
14-5 commission under Subsection (l) or the economic benefit gained by
14-6 the violator through the violation. The maximum penalty for a
14-7 violation is an amount equal to the economic benefit gained by the
14-8 violator through the violation plus:
14-9 (1) for an owner, an amount not to exceed $500 for
14-10 each violation or each day of a continuing violation; and
14-11 (2) for any other person, an amount not to exceed
14-12 $5,000 for each violation or each day of a continuing violation <as
14-13 follows:>
14-14 <(1) an owner shall be subject to a civil penalty in
14-15 an amount not to exceed $500 per day or act of violation. Each day
14-16 a violation continues may be considered a separate offense for
14-17 purposes of assessing a penalty; and>
14-18 <(2) any other person shall be subject to a civil
14-19 penalty in an amount not to exceed $5,000 per day or act of
14-20 violation. Each day a violation continues may be considered a
14-21 separate offense for purposes of assessing a penalty>.
14-22 (c) In determining whether the amount of the penalty should
14-23 exceed the minimum penalty under Subsection (b), the commission
14-24 shall consider:
14-25 (1) the circumstances surrounding the prohibited act,
14-26 with special consideration of the threat to public health and the
14-27 environment;
15-1 (2) the history of previous violations;
15-2 (3) the amount necessary to deter future violations;
15-3 (4) efforts to correct the violation; and
15-4 (5) any other matters that justice may require.
15-5 (l) For the purpose of determining the minimum penalty under
15-6 Subsection (b), the commission shall establish an amount for each
15-7 type of violation to which this section applies that all violators
15-8 must pay even if the economic benefit gained by the violator
15-9 through the violation is less than the amount. In setting the
15-10 amount, the commission shall consider the costs it incurs in
15-11 determining economic benefit under this section.
15-12 (m) The commission shall adopt guidelines to refer to the
15-13 attorney general for civil action:
15-14 (1) a significant violation of this chapter or a rule
15-15 or order adopted under this chapter concerning solid waste that is
15-16 under the commission's jurisdiction or a solid waste permit or
15-17 registration issued by the commission under this chapter; and
15-18 (2) a person who repeatedly violates this chapter or a
15-19 rule or order adopted under this chapter concerning solid waste
15-20 that is under the commission's jurisdiction or a solid waste permit
15-21 or registration issued by the commission under this chapter.
15-22 (n) The commission by rule shall define "economic benefit"
15-23 for the purpose of this section.
15-24 SECTION 9. Section 382.088, Health and Safety Code, is
15-25 amended by amending Subsections (b), (c), and (d) and adding
15-26 Subsections (k), (l), and (m) to read as follows:
15-27 (b) The minimum penalty for a violation is an amount equal
16-1 to the greater of an amount established by the board under
16-2 Subsection (k) or the economic benefit gained by the violator
16-3 through the violation. The maximum penalty for a violation is an
16-4 amount equal to the economic benefit gained by the violator through
16-5 the violation plus an amount not to exceed $10,000 a day <The
16-6 penalty for each violation may not exceed $10,000 a day for each
16-7 violation>. Each day that a continuing violation occurs may be
16-8 considered a separate violation.
16-9 (c) In determining whether the amount of the penalty should
16-10 exceed the minimum penalty under Subsection (b), the board shall
16-11 consider:
16-12 (1) the seriousness of the violation, including the
16-13 nature, circumstances, extent, and gravity of the prohibited acts
16-14 and the hazard or potential hazard to the public health or safety;
16-15 (2) the history of previous violations;
16-16 (3) the amount necessary to deter future violations;
16-17 (4) efforts to correct the violation; and
16-18 (5) any other matters that justice may require.
16-19 (d) If the executive director, after an investigation,
16-20 concludes that a violation has occurred, the executive director may
16-21 issue a preliminary report:
16-22 (1) stating the facts that support the conclusion;
16-23 (2) recommending that a civil penalty under this
16-24 section be imposed; and
16-25 (3) recommending the proposed <amount of the> penalty
16-26 in an amount equal to or greater than the minimum penalty under
16-27 Subsection (b), considering the factors prescribed by Subsection
17-1 (c), including an analysis of each factor for the board.
17-2 (k) For the purpose of determining the minimum penalty under
17-3 Subsection (b), the board shall establish an amount for each type
17-4 of violation to which this section applies that all violators must
17-5 pay even if the economic benefit gained by the violator through the
17-6 violation is less than the amount. In setting the amount, the
17-7 board shall consider the costs it incurs in determining economic
17-8 benefit under this section.
17-9 (l) The board shall adopt guidelines to refer to the
17-10 attorney general for civil action:
17-11 (1) a significant violation of this chapter or of a
17-12 rule or order adopted or permit issued under this chapter; and
17-13 (2) a person who repeatedly violates this chapter or a
17-14 rule or order adopted or permit issued under this chapter.
17-15 (m) The board by rule shall define "economic benefit" for
17-16 the purpose of this section.
17-17 SECTION 10. Section 401.384, Health and Safety Code, is
17-18 amended by amending Subsections (b) and (c) and adding Subsections
17-19 (d), (e), and (f) to read as follows:
17-20 (b) The minimum penalty for a violation is an amount equal
17-21 to the greater of an amount established by the board under
17-22 Subsection (d) or the economic benefit gained by the violator
17-23 through the violation. The maximum penalty for a violation is an
17-24 amount equal to the economic benefit gained by the violator through
17-25 the violation plus an amount not to exceed $10,000 a day <The
17-26 penalty for each violation may not exceed $10,000 a day for a
17-27 person who violates this chapter or a rule, order, license, or
18-1 registration issued under this chapter>. Each day a violation
18-2 continues may be considered a separate violation.
18-3 (c) In determining whether the amount of the penalty should
18-4 exceed the minimum penalty under Subsection (b), the department
18-5 shall consider:
18-6 (1) the seriousness of the violation, including the
18-7 nature, circumstances, extent, and gravity of the prohibited acts
18-8 and the hazard or potential hazard created to the public health or
18-9 safety;
18-10 (2) the history of previous violations;
18-11 (3) the amount necessary to deter future violations;
18-12 (4) efforts to correct the violation; and
18-13 (5) any other matters that justice requires.
18-14 (d) For the purpose of determining the minimum penalty under
18-15 Subsection (b), the department shall establish an amount for each
18-16 type of violation to which this section applies that all violators
18-17 must pay even if the economic benefit gained by the violator
18-18 through the violation is less than the amount. In setting the
18-19 amount, the department shall consider the costs it incurs in
18-20 determining economic benefit under this section.
18-21 (e) The department shall adopt guidelines to refer to the
18-22 attorney general for civil action:
18-23 (1) a significant violation of this chapter, a rule or
18-24 order adopted under this chapter, or a condition of a license or
18-25 registration issued under this chapter; and
18-26 (2) a person who repeatedly violates this chapter, a
18-27 rule or order adopted under this chapter, or a condition of a
19-1 license or registration issued under this chapter.
19-2 (f) The Texas Natural Resource Conservation Commission by
19-3 rule shall define "economic benefit" for the purpose of this
19-4 section.
19-5 SECTION 11. Section 401.388, Health and Safety Code, is
19-6 amended by adding Subsection (g) to read as follows:
19-7 (g) The penalty must be an amount equal to or greater than
19-8 the minimum penalty under Section 401.384.
19-9 SECTION 12. Section 431.054, Health and Safety Code, is
19-10 amended by amending Subsections (b) and (c) and adding Subsections
19-11 (e), (f), and (g) to read as follows:
19-12 (b) In determining whether the amount of the penalty should
19-13 exceed the minimum penalty under Subsection (c), the commissioner
19-14 shall consider:
19-15 (1) the person's previous violations;
19-16 (2) the seriousness of the violation;
19-17 (3) any hazard to the health and safety of the public;
19-18 (4) the person's demonstrated good faith; and
19-19 (5) such other matters as justice may require.
19-20 (c) The minimum penalty for a violation is an amount equal
19-21 to the greater of an amount established by the commissioner under
19-22 Subsection (e) or the economic benefit gained by the violator
19-23 through the violation. The maximum penalty for a violation is an
19-24 amount equal to the economic benefit gained by the violator through
19-25 the violation plus an amount not to exceed $25,000 a day <The
19-26 penalty may not exceed $25,000 a day for each violation>.
19-27 (e) For the purpose of determining the minimum penalty under
20-1 Subsection (c), the commissioner shall establish an amount for each
20-2 type of violation to which this section applies that all violators
20-3 must pay even if the economic benefit gained by the violator
20-4 through the violation is less than the amount. In setting the
20-5 amount, the commissioner shall consider the costs it incurs in
20-6 determining economic benefit under this section.
20-7 (f) The commissioner shall adopt guidelines to refer to the
20-8 attorney general for civil action:
20-9 (1) a significant violation of Subchapter B or of an
20-10 order adopted or registration issued under this chapter; and
20-11 (2) a person who repeatedly violates Subchapter B or
20-12 an order adopted or registration issued under this chapter.
20-13 (g) The Texas Natural Resource Conservation Commission by
20-14 rule shall define "economic benefit" for the purpose of this
20-15 section.
20-16 SECTION 13. Section 431.055, Health and Safety Code, is
20-17 amended by adding Subsection (f) to read as follows:
20-18 (f) The penalty must be an amount equal to or greater than
20-19 the minimum penalty under Section 431.054.
20-20 SECTION 14. Section 81.0531, Natural Resources Code, is
20-21 amended by amending Subsections (b) and (c) and adding Subsections
20-22 (d), (e), and (f) to read as follows:
20-23 (b) The minimum penalty for a violation is an amount equal
20-24 to the greater of an amount established by the commission under
20-25 Subsection (d) of this section or the economic benefit gained by
20-26 the violator through the violation. The maximum penalty for a
20-27 violation is an amount equal to the economic benefit gained by the
21-1 violator through the violation plus an amount not to exceed $10,000
21-2 a day <The penalty may not exceed $10,000 a day for each
21-3 violation>. Each day a violation continues may be considered a
21-4 separate violation for purposes of penalty assessments.
21-5 (c) In determining whether the amount of the penalty should
21-6 exceed the minimum penalty under Subsection (b) of this section,
21-7 the commission shall consider the permittee's history of previous
21-8 violations, the seriousness of the violation, any hazard to the
21-9 health or safety of the public, and the demonstrated good faith of
21-10 the person charged.
21-11 (d) For the purpose of determining the minimum penalty under
21-12 Subsection (b) of this section, the commission shall establish an
21-13 amount for each type of violation to which this section applies
21-14 that all violators must pay even if the economic benefit gained by
21-15 the violator through the violation is less than the amount. In
21-16 setting the amount, the commission shall consider the costs it
21-17 incurs in determining economic benefit under this section.
21-18 (e) The commission shall adopt guidelines to refer to the
21-19 attorney general for civil action:
21-20 (1) a violation described by Subsection (a) of this
21-21 section that is significant; and
21-22 (2) a person who repeatedly commits a violation
21-23 described by Subsection (a) of this section.
21-24 (f) The Texas Natural Resource Conservation Commission by
21-25 rule shall define "economic benefit" for the purpose of this
21-26 section.
21-27 SECTION 15. Section 81.0532, Natural Resources Code, is
22-1 amended by adding Subsection (f) to read as follows:
22-2 (f) The penalty must be an amount equal to or greater than
22-3 the minimum penalty under Section 81.0531 of this code.
22-4 SECTION 16. Section 116.143, Natural Resources Code, is
22-5 amended by amending Subsections (b) and (c) and adding Subsections
22-6 (d), (e), and (f) to read as follows:
22-7 (b) The minimum penalty for a violation is an amount equal
22-8 to the greater of an amount established by the commission under
22-9 Subsection (d) of this section or the economic benefit gained by
22-10 the violator through the violation. The maximum penalty for a
22-11 violation is an amount equal to the economic benefit gained by the
22-12 violator through the violation plus an amount not to exceed $10,000
22-13 a day <The penalty may not exceed $10,000 a day for each
22-14 violation>. Each day a violation continues may be considered a
22-15 separate violation for purposes of penalty assessments.
22-16 (c) In determining whether the amount of the penalty should
22-17 exceed the minimum penalty under Subsection (b) of this section,
22-18 the commission shall consider the person's history of previous
22-19 violations of this chapter, the seriousness of the violation, any
22-20 hazard to the health or safety of the public, and the demonstrated
22-21 good faith of the person charged.
22-22 (d) For the purpose of determining the minimum penalty under
22-23 Subsection (b) of this section, the commission shall establish an
22-24 amount for each type of violation to which this section applies
22-25 that all violators must pay even if the economic benefit gained by
22-26 the violator through the violation is less than the amount. In
22-27 setting the amount, the commission shall consider the costs it
23-1 incurs in determining economic benefit under this section.
23-2 (e) The commission shall adopt guidelines to refer to the
23-3 attorney general for civil action:
23-4 (1) a violation described by Subsection (a) of this
23-5 section that is significant; and
23-6 (2) a person who repeatedly commits a violation
23-7 described by Subsection (a) of this section.
23-8 (f) The Texas Natural Resource Conservation Commission by
23-9 rule shall define "economic benefit" for the purpose of this
23-10 section.
23-11 SECTION 17. Section 116.144, Natural Resources Code, is
23-12 amended by adding Subsection (f) to read as follows:
23-13 (f) The penalty must be an amount equal to or greater than
23-14 the minimum penalty under Section 116.143 of this code.
23-15 SECTION 18. Section 131.2661, Natural Resources Code, is
23-16 amended by amending Subsections (b) and (c) and adding Subsections
23-17 (d), (e), and (f) to read as follows:
23-18 (b) The minimum penalty for a violation is an amount equal
23-19 to the greater of an amount established by the commission under
23-20 Subsection (d) of this section or the economic benefit gained by
23-21 the violator through the violation. The maximum penalty for a
23-22 violation is an amount equal to the economic benefit gained by the
23-23 violator through the violation plus an amount not to exceed $10,000
23-24 a day <The penalty may not exceed $10,000 a day for each
23-25 violation>. Each day a violation continues may be considered a
23-26 separate violation for purposes of penalty assessments.
23-27 (c) In determining whether the amount of the penalty should
24-1 exceed the minimum penalty under Subsection (b) of this section,
24-2 the commission shall consider the permittee's history of previous
24-3 violations of this chapter, the seriousness of the violation, any
24-4 hazard to the health or safety of the public, and the demonstrated
24-5 good faith of the permittee or person charged.
24-6 (d) For the purpose of determining the minimum penalty under
24-7 Subsection (b) of this section, the commission shall establish an
24-8 amount for each type of violation to which this section applies
24-9 that all violators must pay even if the economic benefit gained by
24-10 the violator through the violation is less than the amount. In
24-11 setting the amount, the commission shall consider the costs it
24-12 incurs in determining economic benefit under this section.
24-13 (e) The commission shall adopt guidelines to refer to the
24-14 attorney general for civil action:
24-15 (1) a violation described by Subsection (a) of this
24-16 section that is significant; and
24-17 (2) a person who repeatedly commits a violation
24-18 described by Subsection (a) of this section.
24-19 (f) The Texas Natural Resource Conservation Commission by
24-20 rule shall define "economic benefit" for the purpose of this
24-21 section.
24-22 SECTION 19. Section 131.2662, Natural Resources Code, is
24-23 amended by adding Subsection (f) to read as follows:
24-24 (f) The penalty must be an amount equal to or greater than
24-25 the minimum penalty under Section 131.2661 of this code.
24-26 SECTION 20. Section 131.303, Natural Resources Code, is
24-27 amended to read as follows:
25-1 Sec. 131.303. Injunctive Relief and Civil Penalty. If a
25-2 person violates or threatens to violate a rule, order, or permit
25-3 issued by the commission under this subchapter, the commission may
25-4 request the attorney general to institute an action to obtain a
25-5 permanent or temporary injunction, temporary restraining order, or
25-6 other appropriate order enjoining the violation or threatened
25-7 violation, or to recover a civil penalty in an amount not less than
25-8 the minimum penalty under Section 131.304 of this code and not more
25-9 than the maximum penalty under that section <of not more than
25-10 $10,000 a day for each violation or threatened violation>, or for
25-11 both injunctive relief and civil penalty. The action shall be
25-12 brought in a court of competent jurisdiction in Travis County, in
25-13 the county in which the violation occurred, or in the county of
25-14 residence of any defendant.
25-15 SECTION 21. Section 131.304, Natural Resources Code, is
25-16 amended to read as follows:
25-17 Sec. 131.304. Administrative Penalty. (a) A person who
25-18 violates a rule, order, or permit issued by the commission under
25-19 this subchapter may be assessed a civil penalty by the commission.
25-20 (b) The minimum penalty for a violation is an amount equal
25-21 to the greater of an amount established by the commission under
25-22 Subsection (d) of this section or the economic benefit gained by
25-23 the violator through the violation. The maximum penalty for a
25-24 violation is an amount equal to the economic benefit gained by the
25-25 violator through the violation plus an amount not to exceed $10,000
25-26 a day <The penalty may not exceed $10,000 a day for each
25-27 violation>. Each day a violation continues may be considered a
26-1 separate violation for purposes of penalty assessments.
26-2 (c) In determining whether the amount of the penalty should
26-3 exceed the minimum penalty under Subsection (b) of this section,
26-4 the commission shall consider the permittee's history of previous
26-5 violations, the seriousness of the violation, any hazard to the
26-6 health or safety of the public, and the demonstrated good faith of
26-7 the person charged. The penalty shall be assessed, recovered, and
26-8 contested in accordance with the procedures provided in Sections
26-9 131.2662-131.2664 of Subchapter G of this chapter.
26-10 (d) For the purpose of determining the minimum penalty under
26-11 Subsection (b) of this section, the commission shall establish an
26-12 amount for each type of violation to which this section applies
26-13 that all violators must pay even if the economic benefit gained by
26-14 the violator through the violation is less than the amount. In
26-15 setting the amount, the commission shall consider the costs it
26-16 incurs in determining economic benefit under this section.
26-17 (e) The commission shall adopt guidelines to refer to the
26-18 attorney general for civil action:
26-19 (1) a significant violation of a rule, order, or
26-20 permit issued under this subchapter; and
26-21 (2) a person who repeatedly violates a rule, order, or
26-22 permit issued under this subchapter.
26-23 (f) The Texas Natural Resource Conservation Commission by
26-24 rule shall define "economic benefit" for the purpose of this
26-25 section.
26-26 SECTION 22. Section 141.013, Natural Resources Code, is
26-27 amended by amending Subsections (b) and (c) and adding Subsections
27-1 (d), (e), and (f) to read as follows:
27-2 (b) The minimum penalty for a violation is an amount equal
27-3 to the greater of an amount established by the commission under
27-4 Subsection (d) of this section or the economic benefit gained by
27-5 the violator through the violation. The maximum penalty for a
27-6 violation is an amount equal to the economic benefit gained by the
27-7 violator through the violation plus an amount not to exceed
27-8 $10,000 a day <The penalty may not exceed $10,000 a day for each
27-9 violation>. Each day a violation continues may be considered a
27-10 separate violation for purposes of penalty assessments.
27-11 (c) In determining whether the amount of the penalty should
27-12 exceed the minimum penalty under Subsection (b) of this section,
27-13 the commission shall consider the person's history of previous
27-14 violations of this subchapter or the rules, the seriousness of the
27-15 violation, any hazard to the health or safety of the public, and
27-16 the demonstrated good faith of the person.
27-17 (d) For the purpose of determining the minimum penalty under
27-18 Subsection (b) of this section, the commission shall establish an
27-19 amount for each type of violation to which this section applies
27-20 that all violators must pay even if the economic benefit gained by
27-21 the violator through the violation is less than the amount. In
27-22 setting the amount, the commission shall consider the costs it
27-23 incurs in determining economic benefit under this section.
27-24 (e) The commission shall adopt guidelines to refer to the
27-25 attorney general for civil action:
27-26 (1) a violation described by Subsection (a) of this
27-27 section that is significant; and
28-1 (2) a person who repeatedly commits a violation
28-2 described by Subsection (a) of this section.
28-3 (f) The Texas Natural Resource Conservation Commission by
28-4 rule shall define "economic benefit" for the purpose of this
28-5 section.
28-6 SECTION 23. Section 141.014, Natural Resources Code, is
28-7 amended by adding Subsection (f) to read as follows:
28-8 (f) The penalty must be an amount equal to or greater than
28-9 the minimum penalty under Section 141.013 of this code.
28-10 SECTION 24. Section 13.4151, Water Code, is amended by
28-11 amending Subsections (a), (b), (c), and (g) and adding Subsections
28-12 (o), (p), and (q) to read as follows:
28-13 (a) If a person, affiliated interest, or entity subject to
28-14 the jurisdiction of the commission violates this chapter or a rule
28-15 or order adopted under this chapter, the commission may assess a
28-16 penalty against that person, affiliated interest, or entity as
28-17 provided by this section. The minimum penalty for a violation is
28-18 an amount equal to the greater of an amount established by the
28-19 commission under Subsection (o) of this section or the economic
28-20 benefit gained by the violator through the violation. The maximum
28-21 penalty for a violation is an amount equal to the economic benefit
28-22 gained by the violator through the violation plus <The penalty may
28-23 be in> an amount not to exceed $500 a day. Each day a violation
28-24 continues may be considered a separate violation.
28-25 (b) In determining whether the amount of the penalty should
28-26 exceed the minimum penalty under Subsection (a) of this section,
28-27 the commission shall consider:
29-1 (1) the nature, circumstances, extent, duration, and
29-2 gravity of the prohibited acts or omissions;
29-3 (2) with respect to the alleged violator:
29-4 (A) the history and extent of previous
29-5 violations;
29-6 (B) the degree of culpability, including whether
29-7 the violation was attributable to mechanical or electrical failures
29-8 and whether the violation could have been reasonably anticipated
29-9 and avoided;
29-10 (C) the demonstrated good faith, including
29-11 actions taken by the person, affiliated interest, or entity to
29-12 correct the cause of the violation; and
29-13 (D) <any economic benefit gained through the
29-14 violation; and>
29-15 <(E)> the amount necessary to deter future
29-16 violations; and
29-17 (3) any other matters that justice requires.
29-18 (c) If, after examination of a possible violation and the
29-19 facts surrounding that possible violation, the executive director
29-20 concludes that a violation has occurred, the executive director may
29-21 issue a preliminary report stating the facts on which that
29-22 conclusion is based, recommending that a penalty under this section
29-23 be imposed on the person, affiliated interest, or retail public
29-24 utility charged, and recommending the amount of that proposed
29-25 penalty. The executive director shall recommend <base the
29-26 recommended amount of> the proposed penalty in an amount equal to
29-27 the greater of an amount established by the commission under
30-1 Subsection (o) of this section or the economic benefit gained by
30-2 the violator through the violation. The executive director shall
30-3 determine whether the proposed penalty should exceed the economic
30-4 benefit gained by the violator through the violation by considering
30-5 <on> the factors provided by Subsection (b) of this section, and
30-6 shall analyze each factor for the benefit of the commission.
30-7 (g) If the person, affiliated interest, or retail public
30-8 utility charged requests or the commission orders a hearing, the
30-9 commission shall call a hearing and give notice of the hearing. As
30-10 a result of the hearing, the commission by order may find that a
30-11 violation has occurred and may assess a civil penalty, may find
30-12 that a violation has occurred but that no penalty should be
30-13 assessed, or may find that no violation has occurred. All
30-14 proceedings under this subsection are subject to Chapter 2001,
30-15 Government Code <the Administrative Procedure and Texas Register
30-16 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>. In making
30-17 any penalty decision, the commission shall determine the economic
30-18 benefit gained by the violator through the violation and analyze
30-19 each of the factors provided by Subsection (b) of this section.
30-20 (o) For the purpose of determining the minimum penalty under
30-21 Subsection (a) of this section, the commission shall establish an
30-22 amount for each type of violation to which this section applies
30-23 that all violators must pay even if the economic benefit gained by
30-24 the violator through the violation is less than the amount. In
30-25 setting the amount, the commission shall consider the costs it
30-26 incurs in determining economic benefit under this section.
30-27 (p) The commission shall adopt guidelines to refer to the
31-1 attorney general for civil action:
31-2 (1) a significant violation of this chapter or of a
31-3 rule or order adopted under this chapter; and
31-4 (2) a person who repeatedly violates this chapter or a
31-5 rule or order adopted under this chapter.
31-6 (q) The commission by rule shall define "economic benefit"
31-7 for the purpose of this section.
31-8 SECTION 25. Section 26.136, Water Code, is amended by
31-9 amending Subsections (b), (c), (d), and (h) and adding Subsections
31-10 (p), (q), and (r) to read as follows:
31-11 (b) The minimum penalty for a violation is an amount equal
31-12 to the greater of an amount established by the commission under
31-13 Subsection (p) of this section or the economic benefit gained by
31-14 the violator through the violation. The maximum penalty for a
31-15 violation is an amount equal to the economic benefit gained by the
31-16 violator through the violation plus <The penalty may be in> an
31-17 amount not to exceed $10,000 a day <for a person who violates this
31-18 chapter or a rule, order, or permit>. Each day a violation
31-19 continues may be considered a separate violation for purposes of
31-20 penalty assessment.
31-21 (c) In determining whether the amount of the penalty should
31-22 exceed the minimum penalty under Subsection (b) of this section,
31-23 the commission shall consider:
31-24 (1) the nature, circumstances, extent, duration, and
31-25 gravity of the prohibited acts with special emphasis on the hazard
31-26 or potential hazard created to the health or safety of the public;
31-27 (2) the impact of the violation on a receiving stream
32-1 or underground water reservoir, on the property owners along a
32-2 receiving stream or underground water reservoir, and on water users
32-3 of a receiving stream or underground water reservoir;
32-4 (3) with respect to the alleged violator:
32-5 (A) the history and extent of previous
32-6 violations;
32-7 (B) the degree of culpability, including whether
32-8 the violation was attributable to mechanical or electrical failures
32-9 and whether the violation could have been reasonably anticipated
32-10 and avoided;
32-11 (C) the demonstrated good faith, including
32-12 actions taken by the alleged violator to rectify the cause of the
32-13 violation; and
32-14 (D) <any economic benefit gained through the
32-15 violation; and>
32-16 <(E)> the amount necessary to deter future
32-17 violations; and
32-18 (4) any other matters that justice may require.
32-19 (d) If, after examination of a possible violation and the
32-20 facts surrounding that possible violation, the executive director
32-21 concludes that a violation has occurred, the executive director may
32-22 issue a preliminary report stating the facts on which he based that
32-23 conclusion, recommending that a civil penalty under this section be
32-24 imposed on the person charged, and recommending the amount of that
32-25 proposed penalty. The executive director shall recommend <base the
32-26 recommended amount of> the proposed penalty in an amount equal to
32-27 the greater of an amount established by the commission under
33-1 Subsection (p) of this section or the economic benefit gained by
33-2 the violator through the violation. The executive director shall
33-3 determine whether the proposed penalty should exceed the economic
33-4 benefit gained by the violator through the violation by considering
33-5 <on> the factors provided by Subsection (c) of this section, and
33-6 the executive director shall analyze each factor for the benefit of
33-7 the commission.
33-8 (h) If the person charged requests, or the commission
33-9 orders, a hearing, the commission shall call a hearing and give
33-10 notice of the hearing. As a result of the hearing, the commission
33-11 by order either may find that a violation has occurred and may
33-12 assess a civil penalty, may find that a violation has occurred but
33-13 that no penalty should be assessed, or may find that no violation
33-14 has occurred. All proceedings under this subsection are subject to
33-15 Chapter 2001, Government Code <the Administrative Procedure and
33-16 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
33-17 Statutes)>. In making any penalty decision, the commission shall
33-18 determine the economic benefit gained by the violator through the
33-19 violation and analyze each of the factors provided by Subsection
33-20 (c) of this section.
33-21 (p) For the purpose of determining the minimum penalty under
33-22 Subsection (b) of this section, the commission shall establish an
33-23 amount for each type of violation to which this section applies
33-24 that all violators must pay even if the economic benefit gained by
33-25 the violator through the violation is less than the amount. In
33-26 setting the amount, the commission shall consider the costs it
33-27 incurs in determining economic benefit under this section.
34-1 (q) The commission shall adopt guidelines to refer to the
34-2 attorney general for civil action:
34-3 (1) a significant violation of this chapter or of a
34-4 rule or order adopted or permit issued under this chapter; and
34-5 (2) a person who repeatedly violates this chapter or a
34-6 rule or order adopted or permit issued under this chapter.
34-7 (r) The commission by rule shall define "economic benefit"
34-8 for the purpose of this section.
34-9 SECTION 26. Section 27.1011, Water Code, is amended by
34-10 amending Subsections (b) and (c) and adding Subsections (d), (e),
34-11 and (f) to read as follows:
34-12 (b) The minimum penalty for a violation is an amount equal
34-13 to the greater of an amount established by the railroad commission
34-14 under Subsection (d) of this section or the economic benefit gained
34-15 by the violator through the violation. The maximum penalty for a
34-16 violation is an amount equal to the economic benefit gained by the
34-17 violator through the violation plus an amount not to exceed $10,000
34-18 a day <The penalty may not exceed $10,000 a day for each
34-19 violation>. Each day a violation continues may be considered a
34-20 separate violation for purposes of penalty assessments.
34-21 (c) In determining whether the amount of the penalty should
34-22 exceed the minimum penalty under Subsection (b) of this section,
34-23 the railroad commission shall consider the permittee's history of
34-24 previous violations of this chapter, the seriousness of the
34-25 violation, any hazard to the health or safety of the public, and
34-26 the demonstrated good faith of the permittee or person charged.
34-27 (d) For the purpose of determining the minimum penalty under
35-1 Subsection (b) of this section, the railroad commission shall
35-2 establish an amount for each type of violation to which this
35-3 section applies that all violators must pay even if the economic
35-4 benefit gained by the violator through the violation is less than
35-5 the amount. In setting the amount, the railroad commission shall
35-6 consider the costs it incurs in determining economic benefit under
35-7 this section.
35-8 (e) The railroad commission shall adopt guidelines to refer
35-9 to the attorney general for civil action:
35-10 (1) a significant violation of this chapter or a rule,
35-11 order, license, permit, or certificate issued under this chapter;
35-12 and
35-13 (2) a person who repeatedly violates this chapter or a
35-14 rule, order, license, permit, or certificate issued under this
35-15 chapter.
35-16 (f) The commission by rule shall define "economic benefit"
35-17 for the purpose of this section.
35-18 SECTION 27. Section 27.1012, Water Code, is amended by
35-19 adding Subsection (f) to read as follows:
35-20 (f) The penalty must be an amount equal to or greater than
35-21 the minimum penalty under Section 27.1011 of this code.
35-22 SECTION 28. Section 27.1015, Water Code, is amended by
35-23 amending Subsections (b), (c), (d), and (h) and adding Subsections
35-24 (p), (q), and (r) to read as follows:
35-25 (b) The minimum penalty for a violation is an amount equal
35-26 to the greater of an amount established by the commission under
35-27 Subsection (p) of this section or the economic benefit gained by
36-1 the violator through the violation. The maximum penalty for a
36-2 violation is an amount equal to the economic benefit gained by the
36-3 violator through the violation plus an amount not to exceed $10,000
36-4 a day <The penalty may be in an amount not to exceed $10,000 a day
36-5 for a person who violates this chapter or a rule, order, or
36-6 permit>. Each day a violation continues may be considered a
36-7 separate violation for purposes of penalty assessment.
36-8 (c) In determining whether the amount of the penalty should
36-9 exceed the minimum penalty under Subsection (b) of this section,
36-10 the commission shall consider:
36-11 (1) the nature, circumstances, extent, duration, and
36-12 gravity of the prohibited acts with special emphasis on the hazard
36-13 or potential hazard created to the health or safety of the public;
36-14 (2) the impact of the violation on a receiving stream
36-15 or underground water reservoir, on the property owners along a
36-16 receiving stream or underground water reservoir, and on water users
36-17 of a receiving stream or underground water reservoir;
36-18 (3) with respect to the alleged violator:
36-19 (A) the history and extent of previous
36-20 violations;
36-21 (B) the degree of culpability, including whether
36-22 the violation was attributable to mechanical or electrical failures
36-23 and whether the violation could have been reasonably anticipated
36-24 and avoided;
36-25 (C) the demonstrated good faith, including
36-26 actions taken by the alleged violator to rectify the cause of the
36-27 violation; and
37-1 (D) <any economic benefit gained through the
37-2 violation; and>
37-3 <(E)> the amount necessary to deter future
37-4 violations; and
37-5 (4) any other matters that justice may require.
37-6 (d) If, after examination of a possible violation and the
37-7 facts surrounding that possible violation, the executive director
37-8 concludes that a violation has occurred, the executive director may
37-9 issue a preliminary report stating the facts on which he based that
37-10 conclusion, recommending that a civil penalty under this section be
37-11 imposed on the person charged, and recommending the amount of that
37-12 proposed penalty. The executive director shall recommend <base the
37-13 recommended amount of> the proposed penalty in an amount equal to
37-14 the greater of an amount established by the commission under
37-15 Subsection (b) of this section or the economic benefit gained by
37-16 the violator through the violation. The executive director shall
37-17 determine whether the proposed penalty should exceed the economic
37-18 benefit gained by the violator through the violation by considering
37-19 <on> the factors provided by Subsection (c) of this section, and
37-20 the executive director shall analyze each factor for the benefit of
37-21 the commission.
37-22 (h) If the person charged requests, or the commission
37-23 orders, a hearing, the commission shall call a hearing and give
37-24 notice of the hearing. As a result of the hearing, the commission
37-25 by order either may find that a violation has occurred and may
37-26 assess a civil penalty, may find that a violation has occurred but
37-27 that no penalty should be assessed, or may find that no violation
38-1 has occurred. All proceedings under this subsection are subject to
38-2 Chapter 2001, Government Code <the Administrative Procedure and
38-3 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
38-4 Statutes)>. In making any penalty decision, the commission shall
38-5 determine the economic benefit gained by the violator through the
38-6 violation and analyze each of the factors provided by Subsection
38-7 (c) of this section.
38-8 (p) For the purpose of determining the minimum penalty under
38-9 Subsection (b) of this section, the commission shall establish an
38-10 amount for each type of violation to which this section applies
38-11 that all violators must pay even if the economic benefit gained by
38-12 the violator through the violation is less than the amount. In
38-13 setting the amount, the commission shall consider the costs it
38-14 incurs in determining economic benefit under this section.
38-15 (q) The commission shall adopt guidelines to refer to the
38-16 attorney general for civil action:
38-17 (1) a significant violation of this chapter or of a
38-18 rule or order adopted or permit issued under this chapter; and
38-19 (2) a person who repeatedly violates this chapter or a
38-20 rule or order adopted or permit issued under this chapter.
38-21 (r) The commission by rule shall define "economic benefit"
38-22 for the purpose of this section.
38-23 SECTION 29. Section 28.067, Water Code, is amended by
38-24 amending Subsections (b), (c), (d), and (h) and adding Subsections
38-25 (p), (q), and (r) to read as follows:
38-26 (b) The minimum penalty for a violation is an amount equal
38-27 to the greater of an amount established by the commission under
39-1 Subsection (p) of this section or the economic benefit gained by
39-2 the violator through the violation. The maximum penalty for a
39-3 violation is an amount equal to the economic benefit gained by the
39-4 violator through the violation plus an amount not to exceed $10,000
39-5 a day <The penalty may be in an amount not to exceed $10,000 a day
39-6 for a person who knowingly violates this chapter or a rule, order,
39-7 or permit. For all other violations, the penalty may be in an
39-8 amount not to exceed $5,000 a day>. Each day a violation continues
39-9 may be considered a separate violation for purposes of penalty
39-10 assessment.
39-11 (c) In determining whether the amount of the penalty should
39-12 exceed the minimum penalty under Subsection (b) of this section,
39-13 the commission shall consider:
39-14 (1) the nature, circumstances, extent, duration, and
39-15 gravity of the prohibited acts with special emphasis on the hazard
39-16 created to the health or safety of the public;
39-17 (2) the impact of the violation on a receiving stream
39-18 or underground water reservoir, on the property owners along a
39-19 receiving stream or underground water reservoir, and on water users
39-20 of a receiving stream or underground water reservoir;
39-21 (3) with respect to the alleged violator:
39-22 (A) the history and extent of previous
39-23 violations;
39-24 (B) the degree of culpability, including whether
39-25 the violation was attributable to mechanical or electrical failures
39-26 and whether the violation could have been reasonably anticipated
39-27 and avoided;
40-1 (C) the demonstrated good faith, including
40-2 actions taken by the violator to rectify the cause of the
40-3 violation; and
40-4 (D) <any economic benefit gained through the
40-5 violation; and>
40-6 <(E)> the amount necessary to deter future
40-7 violations; and
40-8 (4) any other matters that justice may require.
40-9 (d) If, after examination of a possible violation and the
40-10 facts surrounding that possible violation, the executive director
40-11 concludes that a violation has occurred, the executive director may
40-12 issue a preliminary report stating the facts on which he based that
40-13 conclusion, recommending that a civil penalty under this section be
40-14 imposed on the person charged, and recommending the amount of that
40-15 proposed penalty. The executive director shall recommend <base the
40-16 recommended amount of> the proposed penalty in an amount equal to
40-17 the greater of an amount established by the commission under
40-18 Subsection (p) of this section or the economic benefit gained by
40-19 the violator through the violation. The executive director shall
40-20 determine whether the proposed penalty should exceed the economic
40-21 benefit gained by the violator through the violation by considering
40-22 <on> the factors set forth in Subsection (c) of this section, and
40-23 the executive director shall analyze each factor for the benefit of
40-24 the commission.
40-25 (h) If the person charged requests, or the commission
40-26 orders, a hearing, the commission shall call a hearing and give
40-27 notice of the hearing. As a result of the hearing, the commission
41-1 by order either may find that no violation has occurred, that a
41-2 violation has occurred but no penalty should be assessed, or that a
41-3 violation has occurred and a penalty should be assessed. All
41-4 proceedings under this subsection are subject to Chapter 2001,
41-5 Government Code <the Administrative Procedure and Texas Register
41-6 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>. In making
41-7 any penalty decision, the commission shall determine the economic
41-8 benefit gained by the violator through the violation and analyze
41-9 each of the factors set forth in Subsection (c) of this section.
41-10 (p) For the purpose of determining the minimum penalty under
41-11 Subsection (b) of this section, the commission shall establish an
41-12 amount for each type of violation to which this section applies
41-13 that all violators must pay even if the economic benefit gained by
41-14 the violator through the violation is less than the amount. In
41-15 setting the amount, the commission shall consider the costs it
41-16 incurs in determining economic benefit under this section.
41-17 (q) The commission shall adopt guidelines to refer to the
41-18 attorney general for civil action:
41-19 (1) a significant violation of this chapter or of a
41-20 rule or order adopted or permit issued under this chapter; and
41-21 (2) a person who repeatedly violates this chapter or a
41-22 rule or order adopted or permit issued under this chapter.
41-23 (r) The commission by rule shall define "economic benefit"
41-24 for the purpose of this section.
41-25 SECTION 30. Section 29.047, Water Code, is amended by
41-26 amending Subsections (b) and (c) and adding Subsections (d), (e),
41-27 and (f) to read as follows:
42-1 (b) The minimum penalty for a violation is an amount equal
42-2 to the greater of an amount established by the railroad commission
42-3 under Subsection (d) of this section or the economic benefit gained
42-4 by the violator through the violation. The maximum penalty for a
42-5 violation is an amount equal to the economic benefit gained by the
42-6 violator through the violation plus an amount not to exceed $10,000
42-7 a day <The penalty may not exceed $10,000 a day for each
42-8 violation>. Each day a violation continues may be considered a
42-9 separate violation for purposes of penalty assessments.
42-10 (c) In determining whether the amount of the penalty should
42-11 exceed the minimum penalty under Subsection (b) of this section,
42-12 the railroad commission shall consider the permittee's history of
42-13 previous violations of this chapter, the seriousness of the
42-14 violation, any hazard to the health or safety of the public, and
42-15 the demonstrated good faith of the permittee or person charged.
42-16 (d) For the purpose of determining the minimum penalty under
42-17 Subsection (b) of this section, the railroad commission shall
42-18 establish an amount for each type of violation to which this
42-19 section applies that all violators must pay even if the economic
42-20 benefit gained by the violator through the violation is less than
42-21 the amount. In setting the amount, the railroad commission shall
42-22 consider the costs it incurs in determining economic benefit under
42-23 this section.
42-24 (e) The railroad commission shall adopt guidelines to refer
42-25 to the attorney general for civil action:
42-26 (1) a significant violation of this chapter or of a
42-27 rule, order, license, permit, or certificate issued under this
43-1 chapter; and
43-2 (2) a person who repeatedly violates this chapter or a
43-3 rule, order, license, permit, or certificate issued under this
43-4 chapter.
43-5 (f) The Texas Natural Resource Conservation Commission by
43-6 rule shall define "economic benefit" for the purpose of this
43-7 section.
43-8 SECTION 31. Section 29.048, Water Code, is amended by adding
43-9 Subsection (f) to read as follows:
43-10 (f) The penalty must be an amount equal to or greater than
43-11 the minimum penalty under Section 29.047 of this code.
43-12 SECTION 32. Section 29.051, Water Code, is amended by
43-13 amending Subsection (a) and adding Subsections (c), (d), and (e) to
43-14 read as follows:
43-15 (a) A person who violates this chapter, a rule or order of
43-16 the railroad commission adopted under this chapter, or a term,
43-17 condition, or provision of a permit issued under this chapter, is
43-18 subject to a civil penalty <of not to exceed $10,000> for each
43-19 offense. The minimum penalty for a violation is an amount equal to
43-20 the greater of an amount established by the railroad commission
43-21 under Subsection (c) of this section or the economic benefit gained
43-22 by the violator through the violation. The maximum penalty for a
43-23 violation is an amount equal to the economic benefit gained by the
43-24 violator through the violation plus an amount not to exceed $10,000
43-25 a day. Each day a violation is committed is a separate offense.
43-26 (c) For the purpose of determining the minimum penalty under
43-27 Subsection (a) of this section, the railroad commission shall
44-1 establish an amount for each type of violation to which this
44-2 section applies that all violators must pay even if the economic
44-3 benefit gained by the violator through the violation is less than
44-4 the amount. In setting the amount, the railroad commission shall
44-5 consider the costs it incurs in determining economic benefit under
44-6 this section.
44-7 (d) The railroad commission shall adopt guidelines to refer
44-8 to the attorney general for civil action:
44-9 (1) a significant violation of this chapter, a rule or
44-10 order of the railroad commission adopted under this chapter, or a
44-11 term, condition, or provision of a permit issued under this
44-12 chapter; and
44-13 (2) a person who repeatedly violates this chapter, a
44-14 rule or order of the railroad commission adopted under this
44-15 chapter, or a term, condition, or provision of a permit issued
44-16 under this chapter.
44-17 (e) The Texas Natural Resource Conservation Commission by
44-18 rule shall define "economic benefit" for the purpose of this
44-19 section.
44-20 SECTION 33. Section 10B, Texas Structural Pest Control Act
44-21 (Article 135b-6, Vernon's Texas Civil Statutes), is amended by
44-22 amending Subsections (b), (c), and (d) and adding Subsections (p),
44-23 (q), and (r) to read as follows:
44-24 (b) The minimum penalty for a violation is an amount equal
44-25 to the greater of an amount established by the board under
44-26 Subsection (p) of this section or the economic benefit gained by
44-27 the violator through the violation. The maximum penalty for a
45-1 violation is an amount equal to the economic benefit gained by the
45-2 violator through the violation plus an amount not to exceed $5,000
45-3 a day <The penalty may be in an amount not to exceed $5,000 a day
45-4 for each violation>. Each day a violation continues or occurs may
45-5 be considered a separate violation for purposes of penalty
45-6 assessments.
45-7 (c) In determining whether the amount of the penalty should
45-8 exceed the minimum penalty under Subsection (b) of this section,
45-9 the board shall consider:
45-10 (1) the seriousness of the violation, including the
45-11 nature, circumstances, extent, and gravity of the prohibited acts,
45-12 and the hazard or potential hazard created to the health or safety
45-13 of the public;
45-14 (2) the economic damage to property or the environment
45-15 caused by the violation;
45-16 (3) the history of previous violations;
45-17 (4) the amount necessary to deter future violations;
45-18 (5) efforts to correct the violation; and
45-19 (6) any other matters that justice may require.
45-20 (d) If, after investigation of a possible violation and the
45-21 facts surrounding that possible violation, the executive director
45-22 determines that a violation has occurred, the executive director
45-23 may issue a violation report, stating the facts on which the
45-24 conclusion that a violation occurred is based, recommending that an
45-25 administrative penalty under this section be imposed on the person
45-26 charged and recommending the amount of that proposed penalty. The
45-27 executive director shall base the recommended amount of the
46-1 proposed penalty on the seriousness of the violation determined by
46-2 consideration of the factors set forth in Subsection (c) of this
46-3 section, except that the amount may not be less than the minimum
46-4 penalty under Subsection (b) of this section.
46-5 (p) For the purpose of determining the minimum penalty under
46-6 Subsection (b) of this section, the board shall establish an amount
46-7 for each type of violation to which this section applies that all
46-8 violators must pay even if the economic benefit gained by the
46-9 violator through the violation is less than the amount. In setting
46-10 the amount, the board shall consider the costs it incurs in
46-11 determining economic benefit under this section.
46-12 (q) The board shall adopt guidelines to refer to the
46-13 attorney general for civil action:
46-14 (1) a significant violation of this Act or a rule or
46-15 order adopted by the board; and
46-16 (2) a person who repeatedly violates this Act or a
46-17 rule or order adopted by the board.
46-18 (r) The Texas Natural Resource Conservation Commission by
46-19 rule shall define "economic benefit" for the purpose of this
46-20 section.
46-21 SECTION 34. (a) This Act takes effect September 1, 1995.
46-22 (b) This Act applies only to conduct committed on or after
46-23 the effective date of this Act. Conduct committed before the
46-24 effective date of this Act is governed by the law in effect at the
46-25 time the conduct was committed and that law is continued in effect
46-26 for that purpose.
46-27 SECTION 35. This Act does not affect the transfer of powers,
47-1 duties, rights, and obligations made by Chapter 3, Acts of the 72nd
47-2 Legislature, 1st Called Session, 1991.
47-3 SECTION 36. The importance of this legislation and the
47-4 crowded condition of the calendars in both houses create an
47-5 emergency and an imperative public necessity that the
47-6 constitutional rule requiring bills to be read on three several
47-7 days in each house be suspended, and this rule is hereby suspended.