By Wilson                                             H.B. No. 2510
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to regulation of certain irrigators and irrigation system
    1-3  installers.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Sections 34.001 and 34.002, Water Code, are
    1-6  amended to read as follows:
    1-7        Sec. 34.001.  Definitions.  In this chapter:
    1-8              (1)  "Person" means a natural person.
    1-9              (2)  "Commission" means the Texas Natural Resource
   1-10  Conservation Commission.
   1-11              (3)  "Council" means the Texas irrigators advisory
   1-12  council.
   1-13              (4) <(3)>  "Executive director" means the executive
   1-14  director of the Texas Natural Resource Conservation Commission or
   1-15  the executive director's designee.
   1-16              <(4)  "Department" means the Texas Natural Resource
   1-17  Conservation Commission.>
   1-18              (5)  "Irrigation system" means an assembly of component
   1-19  parts permanently installed for the controlled distribution and
   1-20  conservation of water for the purpose of irrigating any type of
   1-21  landscape vegetation in any location or for the purpose of dust
   1-22  reduction or erosion control.
   1-23              (6)  "Irrigator" means a person who sells, designs,
   1-24  consults, installs, maintains, alters, repairs, or services an
    2-1  irrigation system including the connection of such system in and to
    2-2  a private or public, raw or potable water supply system or any
    2-3  water supply.  The term does not include:
    2-4                    (A)  a person who assists in the installation,
    2-5  maintenance, alteration, repair, or service of an irrigation system
    2-6  under the direct supervision of a licensed irrigator; or
    2-7                    (B)  an owner of a business that regularly
    2-8  employs a licensed irrigator who directly supervises the business's
    2-9  sale, design, consultation, installation, maintenance, alteration,
   2-10  repair, and service of irrigation systems.
   2-11              (7)  "Licensed irrigator" means an irrigator who has
   2-12  prequalified and is licensed under this chapter.
   2-13              (8)  "Installer" means a person who actually connects
   2-14  an irrigation system to a private or public, raw or potable water
   2-15  supply system or any water supply.
   2-16              (9)  "Licensed installer" means an installer who has
   2-17  prequalified and is licensed under this chapter.
   2-18        Sec. 34.002.  Exemptions.  (a)  The licensure requirements of
   2-19  this <This> chapter do <does> not apply to:
   2-20              (1)  any person licensed by the Texas State Board of
   2-21  Plumbing Examiners;
   2-22              (2)  a registered professional engineer or architect or
   2-23  landscape architect if his or her acts are incidental to the
   2-24  pursuit of his or her profession;
   2-25              (3)  irrigation or yard sprinkler work done by a
   2-26  property owner in a building or on premises owned or occupied by
   2-27  him or her as his or her home;
    3-1              (4)  irrigation or yard sprinkler repair work, other
    3-2  than extension of an existing irrigation or yard sprinkler system
    3-3  or installation of a replacement system, done by a maintenance
    3-4  person incidental to and on premises owned by the business in which
    3-5  he or she is regularly employed or engaged and who does not engage
    3-6  in the occupation of licensed irrigator or in yard sprinkler
    3-7  construction or maintenance for the general public;
    3-8              (5)  irrigation or yard sprinkler work done on the
    3-9  premises or equipment of a railroad by a regular employee of the
   3-10  railroad who does not engage in the occupation of licensed
   3-11  irrigator or in yard sprinkler construction or maintenance for the
   3-12  general public;
   3-13              (6)  irrigation and yard sprinkler work done by a
   3-14  person who is regularly employed by a county, city, town, special
   3-15  district, or political subdivision of the state on public property;
   3-16              (7)  <a temporary or portable water device such as> a
   3-17  garden hose, hose sprinkler, hose-end product, soaker hose, or
   3-18  agricultural irrigation system;
   3-19              (8)  a portable or solid set or other type of
   3-20  commercial agricultural irrigation system; <or>
   3-21              (9)  irrigation or yard sprinkler work done by an
   3-22  agriculturist, agronomist, horticulturist, forester, gardener,
   3-23  contract gardener, garden or lawn caretaker, nurseryman, or grader
   3-24  or cultivator of land on land owned by himself or herself; or
   3-25              (10)  irrigation or yard sprinkler work done by a
   3-26  property owner, or at his or her direction, on premises owned by
   3-27  the property owner if the system is not connected to a private or
    4-1  public water supply system.
    4-2        (b)  A person who is exempt from the licensure requirements
    4-3  of this chapter shall comply with the standards established by this
    4-4  chapter and the rules adopted under this chapter.
    4-5        SECTION 2.  Subsections (a), (d), (g), (h), and (k), Section
    4-6  34.003, Water Code, are amended to read as follows:
    4-7        (a)  The Texas irrigators advisory council is composed of
    4-8  nine members appointed by the commission <department>.
    4-9  Appointments to the council shall be made without regard to the
   4-10  race, creed, sex, religion, or national origin of the appointees.
   4-11        (d)  A council member or an employee of the commission
   4-12  <department> connected with the administration of this chapter may
   4-13  not be an officer, employee, or paid consultant of a trade
   4-14  association in the irrigation industry and may not be related
   4-15  within the second degree by affinity or consanguinity to a person
   4-16  who is an officer, employee, or paid consultant of a trade
   4-17  association in the irrigation industry.
   4-18        (g)  The members <A member> of the council serve <serves a>
   4-19  six-year terms <term>, with the terms of two members expiring
   4-20  February 1 of each odd-numbered year <term expiring September 15>.
   4-21        (h)  A member of the council is entitled to a per diem as set
   4-22  by legislative appropriation for each day that the member engages
   4-23  in the business of the council.  <A member may not receive any
   4-24  compensation for travel expenses, including expenses for meals and
   4-25  lodging, other than transportation expenses.> A member is entitled
   4-26  to reimbursement for travel expenses, including expenses for meals
   4-27  and lodging, as provided for in <compensation for transportation
    5-1  expenses as prescribed by> the General Appropriations Act.
    5-2        (k)  The council shall elect a chairman by a majority vote at
    5-3  the first meeting each fiscal year.
    5-4        SECTION 3.  Sections 34.004(b) and (c), Water Code, are
    5-5  amended to read as follows:
    5-6        (b)  The executive director shall provide necessary services
    5-7  to assist the commission <department> in conducting investigations
    5-8  and examinations, holding hearings, and performing other duties and
    5-9  functions under this chapter.
   5-10        (c)  The commission <department> shall hear all contested
   5-11  cases as defined in Chapter 2001, Government Code, <the
   5-12  Administrative Procedure and Texas Register Act (Article 6252-13a,
   5-13  Vernon's Texas Civil Statutes)> arising under this chapter.  The
   5-14  commission <department> is subject to Chapters 551 and 2001,
   5-15  Government Code <the open meetings law, Chapter 271, Acts of the
   5-16  60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
   5-17  Texas Civil Statutes), and the Administrative Procedure and Texas
   5-18  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
   5-19        SECTION 4.  Sections 34.005, 34.006, 34.007, and 34.008,
   5-20  Water Code, are amended to read as follows:
   5-21        Sec. 34.005.  Commission <Department> Finances.  (a)  Money
   5-22  paid to the commission <department> under this chapter shall be
   5-23  deposited in the state treasury in a special fund known as the
   5-24  Texas irrigators fund.
   5-25        (b)  The Texas irrigators fund shall be used to pay only
   5-26  expenses approved by the commission <department> that are incurred
   5-27  in the administration and enforcement of this chapter.
    6-1        (c)  The executive director shall file annually with the
    6-2  governor and with the presiding officer of each house of the
    6-3  legislature a complete and detailed written report accounting for
    6-4  all funds received and disbursed under this chapter during the
    6-5  preceding fiscal year.  The annual report must be in the form and
    6-6  reported in the time provided by the General Appropriations Act.
    6-7        (d)  Sections 404.094 and 404.095, Government Code, do not
    6-8  apply to the Texas irrigators fund.
    6-9        Sec. 34.006.  Rules.  (a)  The commission <department> shall
   6-10  adopt only those rules consistent with this chapter to govern the
   6-11  conduct of its business and proceedings authorized under this
   6-12  chapter and shall adopt standards governing connections to public
   6-13  or private water supplies by a licensed irrigator or a licensed
   6-14  installer.  The commission <department> may adopt standards for
   6-15  landscape irrigation that include water conservation, irrigation
   6-16  system design and installation, and conformance with municipal
   6-17  codes by a licensed irrigator or a licensed installer.  The
   6-18  commission <department> may not adopt any standard or rule that
   6-19  requires or prohibits the use of any irrigation system, component
   6-20  part, or equipment of any particular brand or manufacturer.
   6-21        (b)  The commission <department> does not have authority to
   6-22  amend or enlarge by rule on any provision of this chapter, to
   6-23  change the meaning of this chapter by rule in any manner, to adopt
   6-24  a rule that is contrary to the underlying and fundamental purposes
   6-25  of this chapter, or to make a rule that is unreasonable, arbitrary,
   6-26  capricious, illegal, or unnecessary.
   6-27        (c)  The commission <department> may not adopt rules
    7-1  restricting competitive bidding or advertising by a person
    7-2  regulated by the commission <department> except to prohibit false,
    7-3  misleading, or deceptive practices by the person.
    7-4        (d)  The commission <department> may not include in its rules
    7-5  to prohibit false, misleading, or deceptive practices by a person
    7-6  regulated by the commission <department> a rule that:
    7-7              (1)  restricts the use of any medium for advertising;
    7-8              (2)  restricts the person's personal appearance or use
    7-9  of the person's voice in an advertisement;
   7-10              (3)  relates to the size or duration of an
   7-11  advertisement by the person; or
   7-12              (4)  restricts the person's advertisement under a trade
   7-13  name.
   7-14        (e)  The commission <department> shall develop and implement
   7-15  policies that provide the public with a reasonable opportunity to
   7-16  appear before the commission <department> and to speak on any issue
   7-17  under the jurisdiction of the commission <department>.
   7-18        (f)  The commission <department> shall prepare and maintain a
   7-19  written plan that describes how a person who does not speak English
   7-20  or who has a physical, mental, or developmental disability may be
   7-21  provided reasonable access to the commission's <department's>
   7-22  programs.
   7-23        (g)  The commission <department> shall prepare information of
   7-24  public interest describing the functions of the commission
   7-25  <department> and the commission's <department's> procedures by
   7-26  which complaints are filed with and resolved by the commission
   7-27  <department>.  The commission <department> shall make the
    8-1  information available to the public and appropriate state agencies.
    8-2        (h)  The commission <department> by rule shall establish
    8-3  methods by which consumers and service recipients are notified of
    8-4  the name, mailing address, and telephone number of the commission
    8-5  <department> for the purpose of directing complaints to the
    8-6  commission <department>.  The commission <department> may provide
    8-7  for that notification:
    8-8              (1)  on each registration form, application, or written
    8-9  contract for services of an individual regulated under this
   8-10  chapter;
   8-11              (2)  on a sign prominently displayed in the place of
   8-12  business of each individual regulated under this chapter; or
   8-13              (3)  in a bill for service provided by an individual
   8-14  regulated under this chapter.
   8-15        <(i)  The department may recognize, prepare, or administer
   8-16  continuing education programs for landscape irrigation.
   8-17  Participation in the programs is voluntary.>
   8-18        <(j)  The department may certify instructors and establish
   8-19  standards for instructional course studies designed to prepare
   8-20  applicants for an examination administered by the department.
   8-21  Certification will be voluntary and based on compliance of the
   8-22  instructor with the standards of the department.  The department
   8-23  may provide a list containing the names of all department certified
   8-24  instructors and all known uncertified instructors to each applicant
   8-25  for an examination administered by the department.>
   8-26        Sec. 34.007.  Registration Requirement.  (a)  No person may
   8-27  act as a licensed <an> irrigator or installer unless he or she has
    9-1  a valid certificate of registration under this chapter.
    9-2        (b)  The commission <department> shall issue certificates of
    9-3  registration to persons <of good moral character> who have
    9-4  prequalified <shown themselves fit, competent, and qualified> to
    9-5  act as licensed irrigators or licensed installers by passing a
    9-6  uniform, reasonable examination which will include the principles
    9-7  of cross connections and safety devices to prevent contamination of
    9-8  potable water supplies.
    9-9        (c)  The commission <department> shall provide in its rules
   9-10  for the preparation, administration, and grading of examinations to
   9-11  acquire certificates of registration under this chapter.  The fee
   9-12  for taking the examination shall be set by the commission
   9-13  <department> not to exceed $200 <$100> for the irrigator
   9-14  certificate of registration and not to exceed $150 <$75> for the
   9-15  installer certificate of registration.
   9-16        (d)  A person holding a certificate of registration under
   9-17  this chapter shall not be required to comply with any other
   9-18  licensing requirements of other state agencies to perform any
   9-19  function within the scope of the certificate issued under this
   9-20  chapter <connections to private or public raw or potable water
   9-21  supply systems>.
   9-22        (e)  Not later than the 45th <30th> day after the day on
   9-23  which a person completes an examination administered by the
   9-24  commission <department>, the commission <department> shall send to
   9-25  the person his or her examination results.  If requested in writing
   9-26  by a person who fails the examination, the commission <department>
   9-27  shall send to the person not later than the 60th <30th> day after
   10-1  the day on which the written request is received by the commission
   10-2  <department> an analysis of the person's performance on the
   10-3  examination.
   10-4        (f)  The commission shall adopt rules establishing classes of
   10-5  certificates and fees.
   10-6        Sec. 34.008.  Reciprocity.  (a)  The commission <department>
   10-7  may certify for registration without examination an applicant who
   10-8  is registered as a licensed irrigator or licensed installer in
   10-9  another state or country that has requirements for registration
  10-10  that are at least substantially equivalent to the requirements of
  10-11  this state and that extends the same privilege of reciprocity to
  10-12  licensed irrigators or licensed installers registered in this
  10-13  state.
  10-14        (b)  The application for registration under this section
  10-15  shall be accompanied by a fee of not to exceed $200 <$100> for a
  10-16  licensed irrigator or $150 <$75> for a licensed installer as
  10-17  determined by the commission <department>.
  10-18        SECTION 5.  Section 34.009, Water Code, is amended by
  10-19  amending Subsections (b) and (c) and adding Subsections (d), (e),
  10-20  and (f) to read as follows:
  10-21        (b)  Not later than the 30th day before the date on which a
  10-22  person's certificate of registration expires, the commission shall
  10-23  send a written notice of the impending expiration to the person at
  10-24  the person's last known address as shown on the records of the
  10-25  commission <The department or the executive director shall notify
  10-26  every person registered under this chapter of the date of
  10-27  expiration of his or her certificate and the amount of the fee that
   11-1  is required for renewal for one year.  The notice shall be mailed
   11-2  at least two months in advance of the date of expiration of the
   11-3  certificate>.
   11-4        (c)  A person may renew an unexpired certificate of
   11-5  registration by paying to the commission the required renewal fee
   11-6  <A person may renew his or her certificate at any time during the
   11-7  months of July and August of each year by payment of the fee
   11-8  adopted by the department in an amount of not more than $150 for a
   11-9  licensed irrigator or $100 for a licensed installer>.
  11-10        (d)  If a person's certificate of registration has been
  11-11  expired for 90 days or less, the person may renew the certificate
  11-12  by paying to the commission the required renewal fee and a penalty
  11-13  fee that is equal to one-half of the examination fee.
  11-14        (e)  If a person's certificate of registration has been
  11-15  expired for longer than 90 days, the person may not renew the
  11-16  certificate.  The person may obtain a new certificate of
  11-17  registration by submitting to reexamination and complying with the
  11-18  requirements and procedures for obtaining an original certificate
  11-19  of registration.
  11-20        (f)  The commission by rule may adopt a system under which
  11-21  certificates of registration expire on various dates during the
  11-22  year.  For the year in which the expiration date is changed,
  11-23  renewal fees payable on August 31 shall be prorated on a monthly
  11-24  basis so that each registrant will pay only that portion of the
  11-25  registration fee that is allocable to the number of months during
  11-26  which the registration is valid.  On renewal of the registration on
  11-27  the new expiration date, the total renewal fee is due.
   12-1        SECTION 6.  Section 34.010, Water Code, is amended to read as
   12-2  follows:
   12-3        Sec. 34.010.  Enforcement.  (a)  The commission <department>
   12-4  may suspend or revoke a certificate of registration, place on
   12-5  probation a person whose certificate has been suspended, or
   12-6  reprimand a registrant for:
   12-7              (1)  a violation of this chapter or of a rule of the
   12-8  commission <department>;
   12-9              (2)  fraud or deceit in obtaining a certificate of
  12-10  registration; or
  12-11              (3)  gross negligence, incompetency, or misconduct
  12-12  while acting as a licensed irrigator or licensed installer.
  12-13        (b)  If the commission <department> proposes to suspend or
  12-14  revoke a person's certificate of registration, the person is
  12-15  entitled to a hearing before the commission <department> or a
  12-16  hearings officer appointed by the commission <department>.  The
  12-17  commission <department> shall prescribe procedures by which all
  12-18  decisions to suspend or revoke are made by or are appealable to the
  12-19  commission <department>.
  12-20        (c)  If a registrant's suspension is probated, the commission
  12-21  <department> may require the registrant:
  12-22              (1)  to report regularly to the commission <department>
  12-23  on matters that are the basis of the probation;
  12-24              (2)  to limit activities to the areas prescribed by the
  12-25  commission <department>; or
  12-26              (3)  to continue or renew professional education until
  12-27  the registrant attains a degree of skill satisfactory to the
   13-1  commission <department> in those areas that are the basis of the
   13-2  probation.
   13-3        (d)  Any person may file a complaint with the commission
   13-4  <department>.  The complaint must be in writing<, must be
   13-5  notarized,> and must set forth the facts alleged.  One copy must be
   13-6  sent by certified mail to the alleged violator.
   13-7        (e)  The commission <department> shall keep an information
   13-8  file about each complaint filed with the commission <department>
   13-9  that the commission <department> has authority to resolve.
  13-10        (f)  <If a written complaint is filed with the department
  13-11  that the department has authority to resolve, the department, at
  13-12  least quarterly and until final disposition of the complaint, shall
  13-13  notify the parties to the complaint of the status of the complaint
  13-14  unless the notice would jeopardize an undercover investigation.>
  13-15        <(g)>  If the executive director determines through
  13-16  investigation that evidence exists of a violation, the executive
  13-17  director may refer such evidence to the commission <department> and
  13-18  may request the setting of a hearing.
  13-19        (g) <(h)>  The commission <department> may compel the
  13-20  attendance of witnesses before it as in civil cases in the district
  13-21  court by issuance of a subpoena.
  13-22        SECTION 7.  Sections 34.011, 34.012, and 34.013, Water Code,
  13-23  are amended to read as follows:
  13-24        Sec. 34.011.  Administrative Penalty.  (a)  If a person
  13-25  licensed under this chapter, a person who is required to be
  13-26  licensed under this chapter, or a person who is exempt from
  13-27  licensure but who is subject to the standards of this chapter and
   14-1  rules adopted <or registered> under this chapter violates an
   14-2  applicable provision of this chapter or an applicable <a> rule or
   14-3  order adopted by the commission <department> under this chapter,
   14-4  the commission <department> may assess an administrative penalty
   14-5  against the person as provided by this section.  Each day a
   14-6  violation continues may be considered a separate violation.
   14-7        (b)  The penalty for each violation shall be set in an amount
   14-8  not to exceed $1,000.
   14-9        (c)  In determining the amount of the penalty, the commission
  14-10  <department> shall consider:
  14-11              (1)  the seriousness of the violation, including the
  14-12  nature, circumstances, extent, duration, and gravity of the
  14-13  prohibited acts;
  14-14              (2)  the history of previous violations;
  14-15              (3)  the amount necessary to deter future violations;
  14-16              (4)  efforts to correct the violation; and
  14-17              (5)  any other matter that justice may require.
  14-18        (d)  If, after examination of a possible violation and the
  14-19  facts surrounding that possible violation, the executive director
  14-20  determines that a violation has occurred, the executive director
  14-21  may issue a violation report stating the facts on which the
  14-22  conclusion that a violation occurred is based, recommending that an
  14-23  administrative penalty under this section be imposed on the person
  14-24  charged and recommending the amount of that proposed penalty.  The
  14-25  executive director shall base the recommended amount of the
  14-26  proposed penalty on the seriousness of the violation determined by
  14-27  the consideration of the factors set forth in Subsection (c) of
   15-1  this section.
   15-2        (e)  Not later than the 30th <14th> day after the date on
   15-3  which the report is issued, the executive director shall give
   15-4  written notice of the report to the person charged.  The notice
   15-5  shall include a brief summary of the charges, a statement of the
   15-6  amount of the penalty recommended, and a statement of the right of
   15-7  the person charged to a hearing on the occurrence of the violation
   15-8  or the amount of the penalty, or both the occurrence of the
   15-9  violation and the amount of the penalty.
  15-10        (f)  Not later than the 30th <20th> day after the date on
  15-11  which notice is received, the person charged may accept the
  15-12  determination of the executive director made under Subsection (d)
  15-13  of this section, including the recommended penalty, or may make a
  15-14  written request for a hearing on the determination.
  15-15        (g)  If the person charged with the violation accepts the
  15-16  determination of the executive director, the commission
  15-17  <department> shall issue an order approving the determination and
  15-18  ordering the payment of the recommended penalty.
  15-19        (h)  If the person charged requests a hearing or fails to
  15-20  timely respond to the notice, the executive director shall set a
  15-21  hearing and give notice of the hearing to the person charged.  The
  15-22  hearing may be before the commission <department> or a hearings
  15-23  examiner appointed by the commission <department>.  The hearings
  15-24  examiner shall make findings of fact and conclusions of law and
  15-25  promptly issue to the commission <department> a proposal for
  15-26  decision as to the occurrence of the violation, including a
  15-27  recommendation as to the amount of the proposed penalty if a
   16-1  penalty is warranted.  Based on the findings of fact, conclusions
   16-2  of law, and recommendations of the hearings examiner, the
   16-3  commission <department> by order may find a violation has occurred
   16-4  and may assess a penalty or may find that no violation has
   16-5  occurred.  All proceedings under this subsection are subject to
   16-6  Chapter 2001, Government Code <the Administrative Procedure and
   16-7  Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   16-8  Statutes)>.
   16-9        (i)  The executive director shall give notice of the
  16-10  commission's <department's> order to the person charged.  The
  16-11  notice shall include:
  16-12              (1)  the findings of fact and conclusions of law
  16-13  separately stated;
  16-14              (2)  the amount of the penalty ordered, if any;
  16-15              (3)  a statement of the right of the person charged to
  16-16  judicial review of the commission's <department's> order, if any;
  16-17  and
  16-18              (4)  other information required by law.
  16-19        (j)  Within the 30-day period immediately following the date
  16-20  on which the commission's <department's> order is final, as
  16-21  provided by Section 2001.144, Government Code <16(c),
  16-22  Administrative Procedure and Texas Register Act (Article 6252-13a,
  16-23  Vernon's Texas Civil Statutes)>, the person charged with the
  16-24  penalty shall:
  16-25              (1)  pay the penalty in full; <or>
  16-26              (2)  pay the penalty and file <if the person files> a
  16-27  petition for judicial review, contesting either the amount of the
   17-1  penalty or the fact of the violation or contesting both the fact of
   17-2  the violation and the amount of the penalty; or
   17-3              (3)  without paying the penalty, file a petition for
   17-4  judicial review contesting the occurrence of the violation, the
   17-5  amount of the penalty, or both the occurrence of the violation and
   17-6  the amount of the penalty<:>
   17-7                    <(A)  forward the amount of the penalty to the
   17-8  executive director for placement in an escrow account; or>
   17-9                    <(B)  in lieu of payment into escrow, post with
  17-10  the executive director a supersedeas bond in a form approved by the
  17-11  executive director for the amount of the penalty, the bond to be
  17-12  effective until all judicial review of the order or decision is
  17-13  final>.
  17-14        (k)  Within the 30-day period, a person who acts under
  17-15  Subsection (j)(3) of this section may:
  17-16              (1)  stay enforcement of the penalty by:
  17-17                    (A)  paying the amount of the penalty to the
  17-18  court for placement in an escrow account; or
  17-19                    (B)  giving to the court a supersedeas bond that
  17-20  is approved by the court for the amount of the penalty and that is
  17-21  effective until all judicial review of the commission's order is
  17-22  final; or
  17-23              (2)  request the court to stay enforcement of the
  17-24  penalty by:
  17-25                    (A)  filing with the court a sworn affidavit of
  17-26  the person stating that the person is financially unable to pay the
  17-27  penalty and is financially unable to give the supersedeas bond; and
   18-1                    (B)  sending a copy of the affidavit to the
   18-2  executive director by certified mail  <If a person charged is
   18-3  financially unable to either forward the amount of the penalty for
   18-4  placement in an escrow account or post a supersedeas bond for the
   18-5  amount of the penalty, the person may satisfy the requirements of
   18-6  Subsection (j)(2) of this section by filing with the executive
   18-7  director an affidavit sworn by the person charged, stating that the
   18-8  person is financially unable to either forward the amount of the
   18-9  penalty or post a bond>.
  18-10        (l)  If the executive director receives a copy of an
  18-11  affidavit under Subsection (k)(2) of this section, the executive
  18-12  director may file with the court, within five days after the date
  18-13  the copy is received, a contest to the affidavit.  The court shall
  18-14  hold a hearing on the facts alleged in the affidavit as soon as
  18-15  practicable and shall stay the enforcement of the penalty on
  18-16  finding that the alleged facts are true.  The person who files an
  18-17  affidavit has the burden of proving that the person is financially
  18-18  unable to pay the penalty or give the supersedeas bond.  <Failure
  18-19  to forward the money to or to post the bond or file the affidavit
  18-20  with the executive director within the time provided by Subsection
  18-21  (j) of this section results in a waiver of all legal rights to
  18-22  judicial review.   Also, if the person charged fails to pay the
  18-23  penalty in full as provided under Subsection (j)(1) of this section
  18-24  or forward the money, post the bond, or file the affidavit as
  18-25  provided by Subsection (j) or (k) of this section, the executive
  18-26  director may forward the matter to the attorney general for
  18-27  enforcement.>
   19-1        (m)  Judicial review of the order or decision of the
   19-2  commission <department> assessing the penalty shall be under the
   19-3  substantial evidence rule and shall be instituted by filing a
   19-4  petition with a district court in Travis County, as provided by
   19-5  Subchapter G, Chapter 2001, Government Code <Section 19,
   19-6  Administrative Procedure and Texas Register Act (Article 6252-13a,
   19-7  Vernon's Texas Civil Statutes)>.
   19-8        (n)  If the person paid the penalty and if the penalty is
   19-9  reduced or not assessed by the court, the executive director shall
  19-10  remit to the person charged the appropriate amount plus accrued
  19-11  interest if the penalty has been paid or shall execute a release of
  19-12  the bond if a supersedeas bond has been posted.  The accrued
  19-13  interest on amounts remitted by the executive director under this
  19-14  subsection shall be paid at a rate equal to the rate charged on
  19-15  loans to depository institutions by the New York Federal Reserve
  19-16  Bank and shall be paid for the period beginning on the date the
  19-17  penalty is paid to the executive director under Subsection (j) of
  19-18  this section and ending on the day the penalty is remitted.
  19-19        (o)  A penalty collected under this section shall be
  19-20  deposited in the state treasury to the credit of the general
  19-21  revenue fund.
  19-22        Sec. 34.012.  <Penalty;> Injunction.  (a)  <A person who
  19-23  represents himself or herself as a licensed irrigator or licensed
  19-24  installer in this state without being licensed or exempted under
  19-25  this chapter, who presents or attempts to use as his or her own the
  19-26  certificate of registration or the seal of another person who is a
  19-27  licensed irrigator or licensed installer, or who gives false or
   20-1  forged evidence of any kind to the department in obtaining or
   20-2  assisting in obtaining for another a certificate of registration
   20-3  shall be guilty of a Class C misdemeanor.  Each day a violation of
   20-4  this subsection occurs constitutes a separate offense.>
   20-5        <(b)>  A person, including a person who is not licensed under
   20-6  this chapter, who violates this chapter or a rule or order of the
   20-7  commission <department> adopted under this chapter is subject to a
   20-8  civil penalty of not to exceed $1,000 for each offense.  Each day a
   20-9  violation is committed is a separate offense.
  20-10        (b) <(c)>  An action to recover the civil penalty <under
  20-11  Subsection (b) of this section> may be brought by the commission
  20-12  <department> in any court of competent jurisdiction in the county
  20-13  in which the offending activity occurred, in which the defendant
  20-14  resides, or in Travis County.
  20-15        (c) <(d)>  The commission <department> may enforce this
  20-16  chapter or a valid rule or order of the commission <department> by
  20-17  injunction or other appropriate remedy.  The action may be brought
  20-18  by the commission <department> in a court of competent jurisdiction
  20-19  in the county in which the offending activity occurred, in which
  20-20  the defendant resides, or in Travis County.
  20-21        (d) <(e)>  At the request of the commission <department>, the
  20-22  attorney general shall institute and conduct a suit in the name of
  20-23  the state to recover the civil penalty as provided under Subsection
  20-24  (a) <(b) of this section> or for injunctive relief or other
  20-25  appropriate remedy, or for both.
  20-26        (e)  A party to an action brought under this section may
  20-27  appeal a final judgment in the manner provided for other civil
   21-1  cases.
   21-2        Sec. 34.013.  Enforcement of Act.  The executive director
   21-3  with the assistance of the attorney general shall enforce this
   21-4  chapter and the rules adopted by the commission <department>.
   21-5        SECTION 8.  The Texas irrigators fund is re-created as a
   21-6  special fund to be used for the purposes specified in Chapter 34,
   21-7  Water Code.
   21-8        SECTION 9.  The term of a member of the Texas irrigators
   21-9  advisory council who is serving on the effective date of this Act
  21-10  and whose term is to expire on September 15 of a year in accordance
  21-11  with Section 34.003, Water Code, as it existed before the effective
  21-12  date of this Act, is extended to February 1 of the year following
  21-13  the year in which that member's term is to expire.
  21-14        SECTION 10.  This Act takes effect September 1, 1995.
  21-15        SECTION 11.  The importance of this legislation and the
  21-16  crowded condition of the calendars in both houses create an
  21-17  emergency and an imperative public necessity that the
  21-18  constitutional rule requiring bills to be read on three several
  21-19  days in each house be suspended, and this rule is hereby suspended.