By Sibley S.B. No. 1639
74R7371 DLF-F
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.
3-25 (b) A person who is exempt from the licensure requirements
3-26 of this chapter shall comply with the standards established by this
3-27 chapter and the rules adopted under this chapter.
4-1 SECTION 2. Subsections (a), (d), (g), (h), and (k), Section
4-2 34.003, Water Code, are amended to read as follows:
4-3 (a) The Texas irrigators advisory council is composed of
4-4 nine members appointed by the commission <department>.
4-5 Appointments to the council shall be made without regard to the
4-6 race, creed, sex, religion, or national origin of the appointees.
4-7 (d) A council member or an employee of the commission
4-8 <department> connected with the administration of this chapter may
4-9 not be an officer, employee, or paid consultant of a trade
4-10 association in the irrigation industry and may not be related
4-11 within the second degree by affinity or consanguinity to a person
4-12 who is an officer, employee, or paid consultant of a trade
4-13 association in the irrigation industry.
4-14 (g) The members <A member> of the council serve <serves a>
4-15 six-year terms <term>, with the terms of two members expiring
4-16 February 1 of each odd-numbered year <term expiring September 15>.
4-17 (h) A member of the council is entitled to a per diem as set
4-18 by legislative appropriation for each day that the member engages
4-19 in the business of the council. <A member may not receive any
4-20 compensation for travel expenses, including expenses for meals and
4-21 lodging, other than transportation expenses.> A member is entitled
4-22 to reimbursement for travel expenses, including expenses for meals
4-23 and lodging, as provided for in <compensation for transportation
4-24 expenses as prescribed by> the General Appropriations Act.
4-25 (k) The council shall elect a chairman by a majority vote at
4-26 the first meeting each fiscal year.
4-27 SECTION 3. Sections 34.004(b) and (c), Water Code, are
5-1 amended to read as follows:
5-2 (b) The executive director shall provide necessary services
5-3 to assist the commission <department> in conducting investigations
5-4 and examinations, holding hearings, and performing other duties and
5-5 functions under this chapter.
5-6 (c) The commission <department> shall hear all contested
5-7 cases as defined in Chapter 2001, Government Code, <the
5-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
5-9 Vernon's Texas Civil Statutes)> arising under this chapter. The
5-10 commission <department> is subject to Chapters 551 and 2001,
5-11 Government Code <the open meetings law, Chapter 271, Acts of the
5-12 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
5-13 Texas Civil Statutes), and the Administrative Procedure and Texas
5-14 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
5-15 SECTION 4. Sections 34.005, 34.006, 34.007, and 34.008,
5-16 Water Code, are amended to read as follows:
5-17 Sec. 34.005. Commission <Department> Finances. (a) Money
5-18 paid to the commission <department> under this chapter shall be
5-19 deposited in the state treasury in a special fund known as the
5-20 Texas irrigators fund.
5-21 (b) The Texas irrigators fund shall be used to pay only
5-22 expenses approved by the commission <department> that are incurred
5-23 in the administration and enforcement of this chapter.
5-24 (c) The executive director shall file annually with the
5-25 governor and with the presiding officer of each house of the
5-26 legislature a complete and detailed written report accounting for
5-27 all funds received and disbursed under this chapter during the
6-1 preceding fiscal year. The annual report must be in the form and
6-2 reported in the time provided by the General Appropriations Act.
6-3 (d) Sections 404.094 and 404.095, Government Code, do not
6-4 apply to the Texas irrigators fund.
6-5 Sec. 34.006. Rules. (a) The commission <department> shall
6-6 adopt only those rules consistent with this chapter to govern the
6-7 conduct of its business and proceedings authorized under this
6-8 chapter and shall adopt standards governing connections to public
6-9 or private water supplies by a licensed irrigator or a licensed
6-10 installer. The commission <department> may adopt standards for
6-11 landscape irrigation that include water conservation, irrigation
6-12 system design and installation, and conformance with municipal
6-13 codes by a licensed irrigator or a licensed installer. The
6-14 commission <department> may not adopt any standard or rule that
6-15 requires or prohibits the use of any irrigation system, component
6-16 part, or equipment of any particular brand or manufacturer.
6-17 (b) The commission <department> does not have authority to
6-18 amend or enlarge by rule on any provision of this chapter, to
6-19 change the meaning of this chapter by rule in any manner, to adopt
6-20 a rule that is contrary to the underlying and fundamental purposes
6-21 of this chapter, or to make a rule that is unreasonable, arbitrary,
6-22 capricious, illegal, or unnecessary.
6-23 (c) The commission <department> may not adopt rules
6-24 restricting competitive bidding or advertising by a person
6-25 regulated by the commission <department> except to prohibit false,
6-26 misleading, or deceptive practices by the person.
6-27 (d) The commission <department> may not include in its rules
7-1 to prohibit false, misleading, or deceptive practices by a person
7-2 regulated by the commission <department> a rule that:
7-3 (1) restricts the use of any medium for advertising;
7-4 (2) restricts the person's personal appearance or use
7-5 of the person's voice in an advertisement;
7-6 (3) relates to the size or duration of an
7-7 advertisement by the person; or
7-8 (4) restricts the person's advertisement under a trade
7-9 name.
7-10 (e) The commission <department> shall develop and implement
7-11 policies that provide the public with a reasonable opportunity to
7-12 appear before the commission <department> and to speak on any issue
7-13 under the jurisdiction of the commission <department>.
7-14 (f) The commission <department> shall prepare and maintain a
7-15 written plan that describes how a person who does not speak English
7-16 or who has a physical, mental, or developmental disability may be
7-17 provided reasonable access to the commission's <department's>
7-18 programs.
7-19 (g) The commission <department> shall prepare information of
7-20 public interest describing the functions of the commission
7-21 <department> and the commission's <department's> procedures by
7-22 which complaints are filed with and resolved by the commission
7-23 <department>. The commission <department> shall make the
7-24 information available to the public and appropriate state agencies.
7-25 (h) The commission <department> by rule shall establish
7-26 methods by which consumers and service recipients are notified of
7-27 the name, mailing address, and telephone number of the commission
8-1 <department> for the purpose of directing complaints to the
8-2 commission <department>. The commission <department> may provide
8-3 for that notification:
8-4 (1) on each registration form, application, or written
8-5 contract for services of an individual regulated under this
8-6 chapter;
8-7 (2) on a sign prominently displayed in the place of
8-8 business of each individual regulated under this chapter; or
8-9 (3) in a bill for service provided by an individual
8-10 regulated under this chapter.
8-11 (i) The commission shall establish criteria for
8-12 accreditation of training courses and continuing education programs
8-13 for licensed landscape irrigators and installers <department may
8-14 recognize, prepare, or administer continuing education programs for
8-15 landscape irrigation>. <Participation in the programs is
8-16 voluntary.>
8-17 (j) The commission shall establish criteria for
8-18 accreditation and approval of <department may certify> instructors
8-19 and establish standards for instructional course studies designed
8-20 to prepare applicants for an examination administered by the
8-21 commission <department>. Certification will be voluntary and based
8-22 on compliance of the instructor with the standards of the
8-23 commission <department>. The commission <department> may provide a
8-24 list containing the names of all commission <department> certified
8-25 instructors <and all known uncertified instructors to each
8-26 applicant for an examination administered by the department>.
8-27 Sec. 34.007. Registration Requirement. (a) No person may
9-1 act as a licensed <an> irrigator or installer unless he or she has
9-2 a valid certificate of registration under this chapter.
9-3 (b) The commission <department> shall issue certificates of
9-4 registration to persons <of good moral character> who have
9-5 prequalified <shown themselves fit, competent, and qualified> to
9-6 act as licensed irrigators or licensed installers by passing a
9-7 uniform, reasonable examination which will include the principles
9-8 of cross connections and safety devices to prevent contamination of
9-9 potable water supplies.
9-10 (c) The commission <department> shall provide in its rules
9-11 for the preparation, administration, and grading of examinations to
9-12 acquire certificates of registration under this chapter. The fee
9-13 for taking the examination shall be set by the commission
9-14 <department> not to exceed $200 <$100> for the irrigator
9-15 certificate of registration and not to exceed $150 <$75> for the
9-16 installer certificate of registration.
9-17 (d) A person holding a certificate of registration under
9-18 this chapter shall not be required to comply with any other
9-19 licensing requirements of other state agencies to perform any
9-20 function within the scope of the certificate issued under this
9-21 chapter <connections to private or public raw or potable water
9-22 supply systems>.
9-23 (e) Not later than the 45th <30th> day after the day on
9-24 which a person completes an examination administered by the
9-25 commission <department>, the commission <department> shall send to
9-26 the person his or her examination results. If requested in writing
9-27 by a person who fails the examination, the commission <department>
10-1 shall send to the person not later than the 60th <30th> day after
10-2 the day on which the written request is received by the commission
10-3 <department> an analysis of the person's performance on the
10-4 examination.
10-5 (f) The commission shall adopt rules establishing classes of
10-6 certificates and fees.
10-7 Sec. 34.008. Reciprocity. (a) The commission <department>
10-8 may certify for registration without examination an applicant who
10-9 is registered as a licensed irrigator or licensed installer in
10-10 another state or country that has requirements for registration
10-11 that are at least substantially equivalent to the requirements of
10-12 this state and that extends the same privilege of reciprocity to
10-13 licensed irrigators or licensed installers registered in this
10-14 state.
10-15 (b) The application for registration under this section
10-16 shall be accompanied by a fee of not to exceed $200 <$100> for a
10-17 licensed irrigator or $150 <$75> for a licensed installer as
10-18 determined by the commission <department>.
10-19 SECTION 5. Section 34.009, Water Code, is amended by
10-20 amending Subsections (b) and (c) and adding Subsections (d), (e),
10-21 and (f) to read as follows:
10-22 (b) Not later than the 30th day before the date on which a
10-23 person's certificate of registration expires, the commission shall
10-24 send a written notice of the impending expiration to the person at
10-25 the person's last known address as shown on the records of the
10-26 commission <The department or the executive director shall notify
10-27 every person registered under this chapter of the date of
11-1 expiration of his or her certificate and the amount of the fee that
11-2 is required for renewal for one year. The notice shall be mailed
11-3 at least two months in advance of the date of expiration of the
11-4 certificate>.
11-5 (c) A person may renew an unexpired certificate of
11-6 registration by paying to the commission the required renewal fee
11-7 <A person may renew his or her certificate at any time during the
11-8 months of July and August of each year by payment of the fee
11-9 adopted by the department in an amount of not more than $150 for a
11-10 licensed irrigator or $100 for a licensed installer>.
11-11 (d) If a person's certificate of registration has been
11-12 expired for 90 days or less, the person may renew the certificate
11-13 by paying to the commission the required renewal fee and a penalty
11-14 fee that is equal to one-half of the examination fee.
11-15 (e) If a person's certificate of registration has been
11-16 expired for longer than 90 days, the person may not renew the
11-17 certificate. The person may obtain a new certificate of
11-18 registration by submitting to reexamination and complying with the
11-19 requirements and procedures for obtaining an original certificate
11-20 of registration.
11-21 (f) The commission by rule may adopt a system under which
11-22 certificates of registration expire on various dates during the
11-23 year. For the year in which the expiration date is changed,
11-24 renewal fees payable on August 31 shall be prorated on a monthly
11-25 basis so that each registrant will pay only that portion of the
11-26 registration fee that is allocable to the number of months during
11-27 which the registration is valid. On renewal of the registration on
12-1 the new expiration date, the total renewal fee is due.
12-2 SECTION 6. Section 34.010, Water Code, is amended to read as
12-3 follows:
12-4 Sec. 34.010. Enforcement. (a) The commission <department>
12-5 may suspend or revoke a certificate of registration, place on
12-6 probation a person whose certificate has been suspended, or
12-7 reprimand a registrant for:
12-8 (1) a violation of this chapter or of a rule of the
12-9 commission <department>;
12-10 (2) fraud or deceit in obtaining a certificate of
12-11 registration; or
12-12 (3) gross negligence, incompetency, or misconduct
12-13 while acting as a licensed irrigator or licensed installer.
12-14 (b) If the commission <department> proposes to suspend or
12-15 revoke a person's certificate of registration, the person is
12-16 entitled to a hearing before the commission <department> or a
12-17 hearings officer appointed by the commission <department>. The
12-18 commission <department> shall prescribe procedures by which all
12-19 decisions to suspend or revoke are made by or are appealable to the
12-20 commission <department>.
12-21 (c) If a registrant's suspension is probated, the commission
12-22 <department> may require the registrant:
12-23 (1) to report regularly to the commission <department>
12-24 on matters that are the basis of the probation;
12-25 (2) to limit activities to the areas prescribed by the
12-26 commission <department>; or
12-27 (3) to continue or renew professional education until
13-1 the registrant attains a degree of skill satisfactory to the
13-2 commission <department> in those areas that are the basis of the
13-3 probation.
13-4 (d) Any person may file a complaint with the commission
13-5 <department>. The complaint must be in writing<, must be
13-6 notarized,> and must set forth the facts alleged. One copy must be
13-7 sent by certified mail to the alleged violator.
13-8 (e) The commission <department> shall keep an information
13-9 file about each complaint filed with the commission <department>
13-10 that the commission <department> has authority to resolve.
13-11 (f) <If a written complaint is filed with the department
13-12 that the department has authority to resolve, the department, at
13-13 least quarterly and until final disposition of the complaint, shall
13-14 notify the parties to the complaint of the status of the complaint
13-15 unless the notice would jeopardize an undercover investigation.>
13-16 <(g)> If the executive director determines through
13-17 investigation that evidence exists of a violation, the executive
13-18 director may refer such evidence to the commission <department> and
13-19 may request the setting of a hearing.
13-20 (g) <(h)> The commission <department> may compel the
13-21 attendance of witnesses before it as in civil cases in the district
13-22 court by issuance of a subpoena.
13-23 SECTION 7. Sections 34.011, 34.012, and 34.013, Water Code,
13-24 are amended to read as follows:
13-25 Sec. 34.011. Administrative Penalty. (a) If a person
13-26 licensed under this chapter, a person who is required to be
13-27 licensed under this chapter, or a person who is exempt from
14-1 licensure but who is subject to the standards of this chapter and
14-2 rules adopted <or registered> under this chapter violates an
14-3 applicable provision of this chapter or an applicable <a> rule or
14-4 order adopted by the commission <department> under this chapter,
14-5 the commission <department> may assess an administrative penalty
14-6 against the person as provided by this section. Each day a
14-7 violation continues may be considered a separate violation.
14-8 (b) The penalty for each violation shall be set in an amount
14-9 not to exceed $1,000.
14-10 (c) In determining the amount of the penalty, the commission
14-11 <department> shall consider:
14-12 (1) the seriousness of the violation, including the
14-13 nature, circumstances, extent, duration, and gravity of the
14-14 prohibited acts;
14-15 (2) the history of previous violations;
14-16 (3) the amount necessary to deter future violations;
14-17 (4) efforts to correct the violation; and
14-18 (5) any other matter that justice may require.
14-19 (d) If, after examination of a possible violation and the
14-20 facts surrounding that possible violation, the executive director
14-21 determines that a violation has occurred, the executive director
14-22 may issue a violation report stating the facts on which the
14-23 conclusion that a violation occurred is based, recommending that an
14-24 administrative penalty under this section be imposed on the person
14-25 charged and recommending the amount of that proposed penalty. The
14-26 executive director shall base the recommended amount of the
14-27 proposed penalty on the seriousness of the violation determined by
15-1 the consideration of the factors set forth in Subsection (c) of
15-2 this section.
15-3 (e) Not later than the 30th <14th> day after the date on
15-4 which the report is issued, the executive director shall give
15-5 written notice of the report to the person charged. The notice
15-6 shall include a brief summary of the charges, a statement of the
15-7 amount of the penalty recommended, and a statement of the right of
15-8 the person charged to a hearing on the occurrence of the violation
15-9 or the amount of the penalty, or both the occurrence of the
15-10 violation and the amount of the penalty.
15-11 (f) Not later than the 30th <20th> day after the date on
15-12 which notice is received, the person charged may accept the
15-13 determination of the executive director made under Subsection (d)
15-14 of this section, including the recommended penalty, or may make a
15-15 written request for a hearing on the determination.
15-16 (g) If the person charged with the violation accepts the
15-17 determination of the executive director, the commission
15-18 <department> shall issue an order approving the determination and
15-19 ordering the payment of the recommended penalty.
15-20 (h) If the person charged requests a hearing or fails to
15-21 timely respond to the notice, the executive director shall set a
15-22 hearing and give notice of the hearing to the person charged. The
15-23 hearing may be before the commission <department> or a hearings
15-24 examiner appointed by the commission <department>. The hearings
15-25 examiner shall make findings of fact and conclusions of law and
15-26 promptly issue to the commission <department> a proposal for
15-27 decision as to the occurrence of the violation, including a
16-1 recommendation as to the amount of the proposed penalty if a
16-2 penalty is warranted. Based on the findings of fact, conclusions
16-3 of law, and recommendations of the hearings examiner, the
16-4 commission <department> by order may find a violation has occurred
16-5 and may assess a penalty or may find that no violation has
16-6 occurred. All proceedings under this subsection are subject to
16-7 Chapter 2001, Government Code <the Administrative Procedure and
16-8 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
16-9 Statutes)>.
16-10 (i) The executive director shall give notice of the
16-11 commission's <department's> order to the person charged. The
16-12 notice shall include:
16-13 (1) the findings of fact and conclusions of law
16-14 separately stated;
16-15 (2) the amount of the penalty ordered, if any;
16-16 (3) a statement of the right of the person charged to
16-17 judicial review of the commission's <department's> order, if any;
16-18 and
16-19 (4) other information required by law.
16-20 (j) Within the 30-day period immediately following the date
16-21 on which the commission's <department's> order is final, as
16-22 provided by Section 2001.144, Government Code <16(c),
16-23 Administrative Procedure and Texas Register Act (Article 6252-13a,
16-24 Vernon's Texas Civil Statutes)>, the person charged with the
16-25 penalty shall:
16-26 (1) pay the penalty in full; <or>
16-27 (2) pay the penalty and file <if the person files> a
17-1 petition for judicial review, contesting either the amount of the
17-2 penalty or the fact of the violation or contesting both the fact of
17-3 the violation and the amount of the penalty; or
17-4 (3) without paying the penalty, file a petition for
17-5 judicial review contesting the occurrence of the violation, the
17-6 amount of the penalty, or both the occurrence of the violation and
17-7 the amount of the penalty<:>
17-8 <(A) forward the amount of the penalty to the
17-9 executive director for placement in an escrow account; or>
17-10 <(B) in lieu of payment into escrow, post with
17-11 the executive director a supersedeas bond in a form approved by the
17-12 executive director for the amount of the penalty, the bond to be
17-13 effective until all judicial review of the order or decision is
17-14 final>.
17-15 (k) Within the 30-day period, a person who acts under
17-16 Subsection (j)(3) of this section may:
17-17 (1) stay enforcement of the penalty by:
17-18 (A) paying the amount of the penalty to the
17-19 court for placement in an escrow account; or
17-20 (B) giving to the court a supersedeas bond that
17-21 is approved by the court for the amount of the penalty and that is
17-22 effective until all judicial review of the commission's order is
17-23 final; or
17-24 (2) request the court to stay enforcement of the
17-25 penalty by:
17-26 (A) filing with the court a sworn affidavit of
17-27 the person stating that the person is financially unable to pay the
18-1 penalty and is financially unable to give the supersedeas bond; and
18-2 (B) sending a copy of the affidavit to the
18-3 executive director by certified mail <If a person charged is
18-4 financially unable to either forward the amount of the penalty for
18-5 placement in an escrow account or post a supersedeas bond for the
18-6 amount of the penalty, the person may satisfy the requirements of
18-7 Subsection (j)(2) of this section by filing with the executive
18-8 director an affidavit sworn by the person charged, stating that the
18-9 person is financially unable to either forward the amount of the
18-10 penalty or post a bond>.
18-11 (l) If the executive director receives a copy of an
18-12 affidavit under Subsection (k)(2) of this section, the executive
18-13 director may file with the court, within five days after the date
18-14 the copy is received, a contest to the affidavit. The court shall
18-15 hold a hearing on the facts alleged in the affidavit as soon as
18-16 practicable and shall stay the enforcement of the penalty on
18-17 finding that the alleged facts are true. The person who files an
18-18 affidavit has the burden of proving that the person is financially
18-19 unable to pay the penalty or give the supersedeas bond. <Failure
18-20 to forward the money to or to post the bond or file the affidavit
18-21 with the executive director within the time provided by Subsection
18-22 (j) of this section results in a waiver of all legal rights to
18-23 judicial review. Also, if the person charged fails to pay the
18-24 penalty in full as provided under Subsection (j)(1) of this section
18-25 or forward the money, post the bond, or file the affidavit as
18-26 provided by Subsection (j) or (k) of this section, the executive
18-27 director may forward the matter to the attorney general for
19-1 enforcement.>
19-2 (m) Judicial review of the order or decision of the
19-3 commission <department> assessing the penalty shall be under the
19-4 substantial evidence rule and shall be instituted by filing a
19-5 petition with a district court in Travis County, as provided by
19-6 Subchapter G, Chapter 2001, Government Code <Section 19,
19-7 Administrative Procedure and Texas Register Act (Article 6252-13a,
19-8 Vernon's Texas Civil Statutes)>.
19-9 (n) If the person paid the penalty and if the penalty is
19-10 reduced or not assessed by the court, the executive director shall
19-11 remit to the person charged the appropriate amount plus accrued
19-12 interest if the penalty has been paid or shall execute a release of
19-13 the bond if a supersedeas bond has been posted. The accrued
19-14 interest on amounts remitted by the executive director under this
19-15 subsection shall be paid at a rate equal to the rate charged on
19-16 loans to depository institutions by the New York Federal Reserve
19-17 Bank and shall be paid for the period beginning on the date the
19-18 penalty is paid to the executive director under Subsection (j) of
19-19 this section and ending on the day the penalty is remitted.
19-20 (o) A penalty collected under this section shall be
19-21 deposited in the state treasury to the credit of the general
19-22 revenue fund.
19-23 Sec. 34.012. <Penalty;> Injunction. (a) <A person who
19-24 represents himself or herself as a licensed irrigator or licensed
19-25 installer in this state without being licensed or exempted under
19-26 this chapter, who presents or attempts to use as his or her own the
19-27 certificate of registration or the seal of another person who is a
20-1 licensed irrigator or licensed installer, or who gives false or
20-2 forged evidence of any kind to the department in obtaining or
20-3 assisting in obtaining for another a certificate of registration
20-4 shall be guilty of a Class C misdemeanor. Each day a violation of
20-5 this subsection occurs constitutes a separate offense.>
20-6 <(b)> A person, including a person who is not licensed under
20-7 this chapter, who violates this chapter or a rule or order of the
20-8 commission <department> adopted under this chapter is subject to a
20-9 civil penalty of not to exceed $1,000 for each offense. Each day a
20-10 violation is committed is a separate offense.
20-11 (b) <(c)> An action to recover the civil penalty <under
20-12 Subsection (b) of this section> may be brought by the commission
20-13 <department> in any court of competent jurisdiction in the county
20-14 in which the offending activity occurred, in which the defendant
20-15 resides, or in Travis County.
20-16 (c) <(d)> The commission <department> may enforce this
20-17 chapter or a valid rule or order of the commission <department> by
20-18 injunction or other appropriate remedy. The action may be brought
20-19 by the commission <department> in a court of competent jurisdiction
20-20 in the county in which the offending activity occurred, in which
20-21 the defendant resides, or in Travis County.
20-22 (d) <(e)> At the request of the commission <department>, the
20-23 attorney general shall institute and conduct a suit in the name of
20-24 the state to recover the civil penalty as provided under Subsection
20-25 (a) <(b) of this section> or for injunctive relief or other
20-26 appropriate remedy, or for both.
20-27 (e) A party to an action brought under this section may
21-1 appeal a final judgment in the manner provided for other civil
21-2 cases.
21-3 Sec. 34.013. Enforcement of Act. The executive director
21-4 with the assistance of the attorney general shall enforce this
21-5 chapter and the rules adopted by the commission <department>.
21-6 SECTION 8. The Texas irrigators fund is re-created as a
21-7 special fund to be used for the purposes specified in Chapter 34,
21-8 Water Code.
21-9 SECTION 9. The term of a member of the Texas irrigators
21-10 advisory council who is serving on the effective date of this Act
21-11 and whose term is to expire on September 15 of a year in accordance
21-12 with Section 34.003, Water Code, as it existed before the effective
21-13 date of this Act, is extended to February 1 of the year following
21-14 the year in which that member's term is to expire.
21-15 SECTION 10. This Act takes effect September 1, 1995.
21-16 SECTION 11. The importance of this legislation and the
21-17 crowded condition of the calendars in both houses create an
21-18 emergency and an imperative public necessity that the
21-19 constitutional rule requiring bills to be read on three several
21-20 days in each house be suspended, and this rule is hereby suspended.