1-1 By: Sibley S.B. No. 1639
1-2 (In the Senate - Filed April 4, 1995; April 6, 1995, read
1-3 first time and referred to Committee on Natural Resources;
1-4 May 10, 1995, reported favorably by the following vote: Yeas 9,
1-5 Nays 0; May 10, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to regulation of certain irrigators and irrigation system
1-9 installers.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Sections 34.001 and 34.002, Water Code, are
1-12 amended to read as follows:
1-13 Sec. 34.001. Definitions. In this chapter:
1-14 (1) "Person" means a natural person.
1-15 (2) "Commission" means the Texas Natural Resource
1-16 Conservation Commission.
1-17 (3) "Council" means the Texas irrigators advisory
1-18 council.
1-19 (4) <(3)> "Executive director" means the executive
1-20 director of the Texas Natural Resource Conservation Commission or
1-21 the executive director's designee.
1-22 <(4) "Department" means the Texas Natural Resource
1-23 Conservation Commission.>
1-24 (5) "Irrigation system" means an assembly of component
1-25 parts permanently installed for the controlled distribution and
1-26 conservation of water for the purpose of irrigating any type of
1-27 landscape vegetation in any location or for the purpose of dust
1-28 reduction or erosion control.
1-29 (6) "Irrigator" means a person who sells, designs,
1-30 consults, installs, maintains, alters, repairs, or services an
1-31 irrigation system including the connection of such system in and to
1-32 a private or public, raw or potable water supply system or any
1-33 water supply. The term does not include:
1-34 (A) a person who assists in the installation,
1-35 maintenance, alteration, repair, or service of an irrigation system
1-36 under the direct supervision of a licensed irrigator; or
1-37 (B) an owner of a business that regularly
1-38 employs a licensed irrigator who directly supervises the business's
1-39 sale, design, consultation, installation, maintenance, alteration,
1-40 repair, and service of irrigation systems.
1-41 (7) "Licensed irrigator" means an irrigator who has
1-42 prequalified and is licensed under this chapter.
1-43 (8) "Installer" means a person who actually connects
1-44 an irrigation system to a private or public, raw or potable water
1-45 supply system or any water supply.
1-46 (9) "Licensed installer" means an installer who has
1-47 prequalified and is licensed under this chapter.
1-48 Sec. 34.002. Exemptions. (a) The licensure requirements of
1-49 this <This> chapter do <does> not apply to:
1-50 (1) any person licensed by the Texas State Board of
1-51 Plumbing Examiners;
1-52 (2) a registered professional engineer or architect or
1-53 landscape architect if his or her acts are incidental to the
1-54 pursuit of his or her profession;
1-55 (3) irrigation or yard sprinkler work done by a
1-56 property owner in a building or on premises owned or occupied by
1-57 him or her as his or her home;
1-58 (4) irrigation or yard sprinkler repair work, other
1-59 than extension of an existing irrigation or yard sprinkler system
1-60 or installation of a replacement system, done by a maintenance
1-61 person incidental to and on premises owned by the business in which
1-62 he or she is regularly employed or engaged and who does not engage
1-63 in the occupation of licensed irrigator or in yard sprinkler
1-64 construction or maintenance for the general public;
1-65 (5) irrigation or yard sprinkler work done on the
1-66 premises or equipment of a railroad by a regular employee of the
1-67 railroad who does not engage in the occupation of licensed
1-68 irrigator or in yard sprinkler construction or maintenance for the
2-1 general public;
2-2 (6) irrigation and yard sprinkler work done by a
2-3 person who is regularly employed by a county, city, town, special
2-4 district, or political subdivision of the state on public property;
2-5 (7) <a temporary or portable water device such as> a
2-6 garden hose, hose sprinkler, hose-end product, soaker hose, or
2-7 agricultural irrigation system;
2-8 (8) a portable or solid set or other type of
2-9 commercial agricultural irrigation system; or
2-10 (9) irrigation or yard sprinkler work done by an
2-11 agriculturist, agronomist, horticulturist, forester, gardener,
2-12 contract gardener, garden or lawn caretaker, nurseryman, or grader
2-13 or cultivator of land on land owned by himself or herself.
2-14 (b) A person who is exempt from the licensure requirements
2-15 of this chapter shall comply with the standards established by this
2-16 chapter and the rules adopted under this chapter.
2-17 SECTION 2. Subsections (a), (d), (g), (h), and (k), Section
2-18 34.003, Water Code, are amended to read as follows:
2-19 (a) The Texas irrigators advisory council is composed of
2-20 nine members appointed by the commission <department>.
2-21 Appointments to the council shall be made without regard to the
2-22 race, creed, sex, religion, or national origin of the appointees.
2-23 (d) A council member or an employee of the commission
2-24 <department> connected with the administration of this chapter may
2-25 not be an officer, employee, or paid consultant of a trade
2-26 association in the irrigation industry and may not be related
2-27 within the second degree by affinity or consanguinity to a person
2-28 who is an officer, employee, or paid consultant of a trade
2-29 association in the irrigation industry.
2-30 (g) The members <A member> of the council serve <serves a>
2-31 six-year terms <term>, with the terms of two members expiring
2-32 February 1 of each odd-numbered year <term expiring September 15>.
2-33 (h) A member of the council is entitled to a per diem as set
2-34 by legislative appropriation for each day that the member engages
2-35 in the business of the council. <A member may not receive any
2-36 compensation for travel expenses, including expenses for meals and
2-37 lodging, other than transportation expenses.> A member is entitled
2-38 to reimbursement for travel expenses, including expenses for meals
2-39 and lodging, as provided for in <compensation for transportation
2-40 expenses as prescribed by> the General Appropriations Act.
2-41 (k) The council shall elect a chairman by a majority vote at
2-42 the first meeting each fiscal year.
2-43 SECTION 3. Subsections (b) and (c), Sections 34.004, Water
2-44 Code, are amended to read as follows:
2-45 (b) The executive director shall provide necessary services
2-46 to assist the commission <department> in conducting investigations
2-47 and examinations, holding hearings, and performing other duties and
2-48 functions under this chapter.
2-49 (c) The commission <department> shall hear all contested
2-50 cases as defined in Chapter 2001, Government Code, <the
2-51 Administrative Procedure and Texas Register Act (Article 6252-13a,
2-52 Vernon's Texas Civil Statutes)> arising under this chapter. The
2-53 commission <department> is subject to Chapters 551 and 2001,
2-54 Government Code <the open meetings law, Chapter 271, Acts of the
2-55 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
2-56 Texas Civil Statutes), and the Administrative Procedure and Texas
2-57 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
2-58 SECTION 4. Sections 34.005, 34.006, 34.007, and 34.008,
2-59 Water Code, are amended to read as follows:
2-60 Sec. 34.005. Commission <Department> Finances. (a) Money
2-61 paid to the commission <department> under this chapter shall be
2-62 deposited in the state treasury in a special fund known as the
2-63 Texas irrigators fund.
2-64 (b) The Texas irrigators fund shall be used to pay only
2-65 expenses approved by the commission <department> that are incurred
2-66 in the administration and enforcement of this chapter.
2-67 (c) The executive director shall file annually with the
2-68 governor and with the presiding officer of each house of the
2-69 legislature a complete and detailed written report accounting for
2-70 all funds received and disbursed under this chapter during the
3-1 preceding fiscal year. The annual report must be in the form and
3-2 reported in the time provided by the General Appropriations Act.
3-3 (d) Sections 404.094 and 404.095, Government Code, do not
3-4 apply to the Texas irrigators fund.
3-5 Sec. 34.006. Rules. (a) The commission <department> shall
3-6 adopt only those rules consistent with this chapter to govern the
3-7 conduct of its business and proceedings authorized under this
3-8 chapter and shall adopt standards governing connections to public
3-9 or private water supplies by a licensed irrigator or a licensed
3-10 installer. The commission <department> may adopt standards for
3-11 landscape irrigation that include water conservation, irrigation
3-12 system design and installation, and conformance with municipal
3-13 codes by a licensed irrigator or a licensed installer. The
3-14 commission <department> may not adopt any standard or rule that
3-15 requires or prohibits the use of any irrigation system, component
3-16 part, or equipment of any particular brand or manufacturer.
3-17 (b) The commission <department> does not have authority to
3-18 amend or enlarge by rule on any provision of this chapter, to
3-19 change the meaning of this chapter by rule in any manner, to adopt
3-20 a rule that is contrary to the underlying and fundamental purposes
3-21 of this chapter, or to make a rule that is unreasonable, arbitrary,
3-22 capricious, illegal, or unnecessary.
3-23 (c) The commission <department> may not adopt rules
3-24 restricting competitive bidding or advertising by a person
3-25 regulated by the commission <department> except to prohibit false,
3-26 misleading, or deceptive practices by the person.
3-27 (d) The commission <department> may not include in its rules
3-28 to prohibit false, misleading, or deceptive practices by a person
3-29 regulated by the commission <department> a rule that:
3-30 (1) restricts the use of any medium for advertising;
3-31 (2) restricts the person's personal appearance or use
3-32 of the person's voice in an advertisement;
3-33 (3) relates to the size or duration of an
3-34 advertisement by the person; or
3-35 (4) restricts the person's advertisement under a trade
3-36 name.
3-37 (e) The commission <department> shall develop and implement
3-38 policies that provide the public with a reasonable opportunity to
3-39 appear before the commission <department> and to speak on any issue
3-40 under the jurisdiction of the commission <department>.
3-41 (f) The commission <department> shall prepare and maintain a
3-42 written plan that describes how a person who does not speak English
3-43 or who has a physical, mental, or developmental disability may be
3-44 provided reasonable access to the commission's <department's>
3-45 programs.
3-46 (g) The commission <department> shall prepare information of
3-47 public interest describing the functions of the commission
3-48 <department> and the commission's <department's> procedures by
3-49 which complaints are filed with and resolved by the commission
3-50 <department>. The commission <department> shall make the
3-51 information available to the public and appropriate state agencies.
3-52 (h) The commission <department> by rule shall establish
3-53 methods by which consumers and service recipients are notified of
3-54 the name, mailing address, and telephone number of the commission
3-55 <department> for the purpose of directing complaints to the
3-56 commission <department>. The commission <department> may provide
3-57 for that notification:
3-58 (1) on each registration form, application, or written
3-59 contract for services of an individual regulated under this
3-60 chapter;
3-61 (2) on a sign prominently displayed in the place of
3-62 business of each individual regulated under this chapter; or
3-63 (3) in a bill for service provided by an individual
3-64 regulated under this chapter.
3-65 (i) The commission shall establish criteria for
3-66 accreditation of training courses and continuing education programs
3-67 for licensed landscape irrigators and installers <department may
3-68 recognize, prepare, or administer continuing education programs for
3-69 landscape irrigation. Participation in the programs is voluntary>.
3-70 (j) The commission shall establish criteria for
4-1 accreditation and approval of <department may certify> instructors
4-2 and establish standards for instructional course studies designed
4-3 to prepare applicants for an examination administered by the
4-4 commission <department>. Certification will be voluntary and based
4-5 on compliance of the instructor with the standards of the
4-6 commission <department>. The commission <department> may provide a
4-7 list containing the names of all commission <department> certified
4-8 instructors <and all known uncertified instructors to each
4-9 applicant for an examination administered by the department>.
4-10 Sec. 34.007. Registration Requirement. (a) No person may
4-11 act as a licensed <an> irrigator or installer unless he or she has
4-12 a valid certificate of registration under this chapter.
4-13 (b) The commission <department> shall issue certificates of
4-14 registration to persons <of good moral character> who have
4-15 prequalified <shown themselves fit, competent, and qualified> to
4-16 act as licensed irrigators or licensed installers by passing a
4-17 uniform, reasonable examination which will include the principles
4-18 of cross connections and safety devices to prevent contamination of
4-19 potable water supplies.
4-20 (c) The commission <department> shall provide in its rules
4-21 for the preparation, administration, and grading of examinations to
4-22 acquire certificates of registration under this chapter. The fee
4-23 for taking the examination shall be set by the commission
4-24 <department> not to exceed $200 <$100> for the irrigator
4-25 certificate of registration and not to exceed $150 <$75> for the
4-26 installer certificate of registration.
4-27 (d) A person holding a certificate of registration under
4-28 this chapter shall not be required to comply with any other
4-29 licensing requirements of other state agencies to perform any
4-30 function within the scope of the certificate issued under this
4-31 chapter <connections to private or public raw or potable water
4-32 supply systems>.
4-33 (e) Not later than the 45th <30th> day after the day on
4-34 which a person completes an examination administered by the
4-35 commission <department>, the commission <department> shall send to
4-36 the person his or her examination results. If requested in writing
4-37 by a person who fails the examination, the commission <department>
4-38 shall send to the person not later than the 60th <30th> day after
4-39 the day on which the written request is received by the commission
4-40 <department> an analysis of the person's performance on the
4-41 examination.
4-42 (f) The commission shall adopt rules establishing classes of
4-43 certificates and fees.
4-44 Sec. 34.008. Reciprocity. (a) The commission <department>
4-45 may certify for registration without examination an applicant who
4-46 is registered as a licensed irrigator or licensed installer in
4-47 another state or country that has requirements for registration
4-48 that are at least substantially equivalent to the requirements of
4-49 this state and that extends the same privilege of reciprocity to
4-50 licensed irrigators or licensed installers registered in this
4-51 state.
4-52 (b) The application for registration under this section
4-53 shall be accompanied by a fee of not to exceed $200 <$100> for a
4-54 licensed irrigator or $150 <$75> for a licensed installer as
4-55 determined by the commission <department>.
4-56 SECTION 5. Section 34.009, Water Code, is amended by
4-57 amending Subsections (b) and (c) and adding Subsections (d), (e),
4-58 and (f) to read as follows:
4-59 (b) Not later than the 30th day before the date on which a
4-60 person's certificate of registration expires, the commission shall
4-61 send a written notice of the impending expiration to the person at
4-62 the person's last known address as shown on the records of the
4-63 commission <The department or the executive director shall notify
4-64 every person registered under this chapter of the date of
4-65 expiration of his or her certificate and the amount of the fee that
4-66 is required for renewal for one year. The notice shall be mailed
4-67 at least two months in advance of the date of expiration of the
4-68 certificate>.
4-69 (c) A person may renew an unexpired certificate of
4-70 registration by paying to the commission the required renewal fee
5-1 <A person may renew his or her certificate at any time during the
5-2 months of July and August of each year by payment of the fee
5-3 adopted by the department in an amount of not more than $150 for a
5-4 licensed irrigator or $100 for a licensed installer>.
5-5 (d) If a person's certificate of registration has been
5-6 expired for 90 days or less, the person may renew the certificate
5-7 by paying to the commission the required renewal fee and a penalty
5-8 fee that is equal to one-half of the examination fee.
5-9 (e) If a person's certificate of registration has been
5-10 expired for longer than 90 days, the person may not renew the
5-11 certificate. The person may obtain a new certificate of
5-12 registration by submitting to reexamination and complying with the
5-13 requirements and procedures for obtaining an original certificate
5-14 of registration.
5-15 (f) The commission by rule may adopt a system under which
5-16 certificates of registration expire on various dates during the
5-17 year. For the year in which the expiration date is changed,
5-18 renewal fees payable on August 31 shall be prorated on a monthly
5-19 basis so that each registrant will pay only that portion of the
5-20 registration fee that is allocable to the number of months during
5-21 which the registration is valid. On renewal of the registration on
5-22 the new expiration date, the total renewal fee is due.
5-23 SECTION 6. Section 34.010, Water Code, is amended to read as
5-24 follows:
5-25 Sec. 34.010. Enforcement. (a) The commission <department>
5-26 may suspend or revoke a certificate of registration, place on
5-27 probation a person whose certificate has been suspended, or
5-28 reprimand a registrant for:
5-29 (1) a violation of this chapter or of a rule of the
5-30 commission <department>;
5-31 (2) fraud or deceit in obtaining a certificate of
5-32 registration; or
5-33 (3) gross negligence, incompetency, or misconduct
5-34 while acting as a licensed irrigator or licensed installer.
5-35 (b) If the commission <department> proposes to suspend or
5-36 revoke a person's certificate of registration, the person is
5-37 entitled to a hearing before the commission <department> or a
5-38 hearings officer appointed by the commission <department>. The
5-39 commission <department> shall prescribe procedures by which all
5-40 decisions to suspend or revoke are made by or are appealable to the
5-41 commission <department>.
5-42 (c) If a registrant's suspension is probated, the commission
5-43 <department> may require the registrant:
5-44 (1) to report regularly to the commission <department>
5-45 on matters that are the basis of the probation;
5-46 (2) to limit activities to the areas prescribed by the
5-47 commission <department>; or
5-48 (3) to continue or renew professional education until
5-49 the registrant attains a degree of skill satisfactory to the
5-50 commission <department> in those areas that are the basis of the
5-51 probation.
5-52 (d) Any person may file a complaint with the commission
5-53 <department>. The complaint must be in writing<, must be
5-54 notarized,> and must set forth the facts alleged. One copy must be
5-55 sent by certified mail to the alleged violator.
5-56 (e) The commission <department> shall keep an information
5-57 file about each complaint filed with the commission <department>
5-58 that the commission <department> has authority to resolve.
5-59 (f) <If a written complaint is filed with the department
5-60 that the department has authority to resolve, the department, at
5-61 least quarterly and until final disposition of the complaint, shall
5-62 notify the parties to the complaint of the status of the complaint
5-63 unless the notice would jeopardize an undercover investigation.>
5-64 <(g)> If the executive director determines through
5-65 investigation that evidence exists of a violation, the executive
5-66 director may refer such evidence to the commission <department> and
5-67 may request the setting of a hearing.
5-68 (g) <(h)> The commission <department> may compel the
5-69 attendance of witnesses before it as in civil cases in the district
5-70 court by issuance of a subpoena.
6-1 SECTION 7. Sections 34.011, 34.012, and 34.013, Water Code,
6-2 are amended to read as follows:
6-3 Sec. 34.011. Administrative Penalty. (a) If a person
6-4 licensed under this chapter, a person who is required to be
6-5 licensed under this chapter, or a person who is exempt from
6-6 licensure but who is subject to the standards of this chapter and
6-7 rules adopted <or registered> under this chapter violates an
6-8 applicable provision of this chapter or an applicable <a> rule or
6-9 order adopted by the commission <department> under this chapter,
6-10 the commission <department> may assess an administrative penalty
6-11 against the person as provided by this section. Each day a
6-12 violation continues may be considered a separate violation.
6-13 (b) The penalty for each violation shall be set in an amount
6-14 not to exceed $1,000.
6-15 (c) In determining the amount of the penalty, the commission
6-16 <department> shall consider:
6-17 (1) the seriousness of the violation, including the
6-18 nature, circumstances, extent, duration, and gravity of the
6-19 prohibited acts;
6-20 (2) the history of previous violations;
6-21 (3) the amount necessary to deter future violations;
6-22 (4) efforts to correct the violation; and
6-23 (5) any other matter that justice may require.
6-24 (d) If, after examination of a possible violation and the
6-25 facts surrounding that possible violation, the executive director
6-26 determines that a violation has occurred, the executive director
6-27 may issue a violation report stating the facts on which the
6-28 conclusion that a violation occurred is based, recommending that an
6-29 administrative penalty under this section be imposed on the person
6-30 charged and recommending the amount of that proposed penalty. The
6-31 executive director shall base the recommended amount of the
6-32 proposed penalty on the seriousness of the violation determined by
6-33 the consideration of the factors set forth in Subsection (c) of
6-34 this section.
6-35 (e) Not later than the 30th <14th> day after the date on
6-36 which the report is issued, the executive director shall give
6-37 written notice of the report to the person charged. The notice
6-38 shall include a brief summary of the charges, a statement of the
6-39 amount of the penalty recommended, and a statement of the right of
6-40 the person charged to a hearing on the occurrence of the violation
6-41 or the amount of the penalty, or both the occurrence of the
6-42 violation and the amount of the penalty.
6-43 (f) Not later than the 30th <20th> day after the date on
6-44 which notice is received, the person charged may accept the
6-45 determination of the executive director made under Subsection (d)
6-46 of this section, including the recommended penalty, or may make a
6-47 written request for a hearing on the determination.
6-48 (g) If the person charged with the violation accepts the
6-49 determination of the executive director, the commission
6-50 <department> shall issue an order approving the determination and
6-51 ordering the payment of the recommended penalty.
6-52 (h) If the person charged requests a hearing or fails to
6-53 timely respond to the notice, the executive director shall set a
6-54 hearing and give notice of the hearing to the person charged. The
6-55 hearing may be before the commission <department> or a hearings
6-56 examiner appointed by the commission <department>. The hearings
6-57 examiner shall make findings of fact and conclusions of law and
6-58 promptly issue to the commission <department> a proposal for
6-59 decision as to the occurrence of the violation, including a
6-60 recommendation as to the amount of the proposed penalty if a
6-61 penalty is warranted. Based on the findings of fact, conclusions
6-62 of law, and recommendations of the hearings examiner, the
6-63 commission <department> by order may find a violation has occurred
6-64 and may assess a penalty or may find that no violation has
6-65 occurred. All proceedings under this subsection are subject to
6-66 Chapter 2001, Government Code <the Administrative Procedure and
6-67 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
6-68 Statutes)>.
6-69 (i) The executive director shall give notice of the
6-70 commission's <department's> order to the person charged. The
7-1 notice shall include:
7-2 (1) the findings of fact and conclusions of law
7-3 separately stated;
7-4 (2) the amount of the penalty ordered, if any;
7-5 (3) a statement of the right of the person charged to
7-6 judicial review of the commission's <department's> order, if any;
7-7 and
7-8 (4) other information required by law.
7-9 (j) Within the 30-day period immediately following the date
7-10 on which the commission's <department's> order is final, as
7-11 provided by Section 2001.144, Government Code <16(c),
7-12 Administrative Procedure and Texas Register Act (Article 6252-13a,
7-13 Vernon's Texas Civil Statutes)>, the person charged with the
7-14 penalty shall:
7-15 (1) pay the penalty in full; <or>
7-16 (2) pay the penalty and file <if the person files> a
7-17 petition for judicial review, contesting either the amount of the
7-18 penalty or the fact of the violation or contesting both the fact of
7-19 the violation and the amount of the penalty; or
7-20 (3) without paying the penalty, file a petition for
7-21 judicial review contesting the occurrence of the violation, the
7-22 amount of the penalty, or both the occurrence of the violation and
7-23 the amount of the penalty<:>
7-24 <(A) forward the amount of the penalty to the
7-25 executive director for placement in an escrow account; or>
7-26 <(B) in lieu of payment into escrow, post with
7-27 the executive director a supersedeas bond in a form approved by the
7-28 executive director for the amount of the penalty, the bond to be
7-29 effective until all judicial review of the order or decision is
7-30 final>.
7-31 (k) Within the 30-day period, a person who acts under
7-32 Subsection (j)(3) of this section may:
7-33 (1) stay enforcement of the penalty by:
7-34 (A) paying the amount of the penalty to the
7-35 court for placement in an escrow account; or
7-36 (B) giving to the court a supersedeas bond that
7-37 is approved by the court for the amount of the penalty and that is
7-38 effective until all judicial review of the commission's order is
7-39 final; or
7-40 (2) request the court to stay enforcement of the
7-41 penalty by:
7-42 (A) filing with the court a sworn affidavit of
7-43 the person stating that the person is financially unable to pay the
7-44 penalty and is financially unable to give the supersedeas bond; and
7-45 (B) sending a copy of the affidavit to the
7-46 executive director by certified mail <If a person charged is
7-47 financially unable to either forward the amount of the penalty for
7-48 placement in an escrow account or post a supersedeas bond for the
7-49 amount of the penalty, the person may satisfy the requirements of
7-50 Subsection (j)(2) of this section by filing with the executive
7-51 director an affidavit sworn by the person charged, stating that the
7-52 person is financially unable to either forward the amount of the
7-53 penalty or post a bond>.
7-54 (l) If the executive director receives a copy of an
7-55 affidavit under Subsection (k)(2) of this section, the executive
7-56 director may file with the court, within five days after the date
7-57 the copy is received, a contest to the affidavit. The court shall
7-58 hold a hearing on the facts alleged in the affidavit as soon as
7-59 practicable and shall stay the enforcement of the penalty on
7-60 finding that the alleged facts are true. The person who files an
7-61 affidavit has the burden of proving that the person is financially
7-62 unable to pay the penalty or give the supersedeas bond. <Failure
7-63 to forward the money to or to post the bond or file the affidavit
7-64 with the executive director within the time provided by Subsection
7-65 (j) of this section results in a waiver of all legal rights to
7-66 judicial review. Also, if the person charged fails to pay the
7-67 penalty in full as provided under Subsection (j)(1) of this section
7-68 or forward the money, post the bond, or file the affidavit as
7-69 provided by Subsection (j) or (k) of this section, the executive
7-70 director may forward the matter to the attorney general for
8-1 enforcement.>
8-2 (m) Judicial review of the order or decision of the
8-3 commission <department> assessing the penalty shall be under the
8-4 substantial evidence rule and shall be instituted by filing a
8-5 petition with a district court in Travis County, as provided by
8-6 Subchapter G, Chapter 2001, Government Code <Section 19,
8-7 Administrative Procedure and Texas Register Act (Article 6252-13a,
8-8 Vernon's Texas Civil Statutes)>.
8-9 (n) If the person paid the penalty and if the penalty is
8-10 reduced or not assessed by the court, the executive director shall
8-11 remit to the person charged the appropriate amount plus accrued
8-12 interest if the penalty has been paid or shall execute a release of
8-13 the bond if a supersedeas bond has been posted. The accrued
8-14 interest on amounts remitted by the executive director under this
8-15 subsection shall be paid at a rate equal to the rate charged on
8-16 loans to depository institutions by the New York Federal Reserve
8-17 Bank and shall be paid for the period beginning on the date the
8-18 penalty is paid to the executive director under Subsection (j) of
8-19 this section and ending on the day the penalty is remitted.
8-20 (o) A penalty collected under this section shall be
8-21 deposited in the state treasury to the credit of the general
8-22 revenue fund.
8-23 Sec. 34.012. <Penalty;> Injunction. (a) <A person who
8-24 represents himself or herself as a licensed irrigator or licensed
8-25 installer in this state without being licensed or exempted under
8-26 this chapter, who presents or attempts to use as his or her own the
8-27 certificate of registration or the seal of another person who is a
8-28 licensed irrigator or licensed installer, or who gives false or
8-29 forged evidence of any kind to the department in obtaining or
8-30 assisting in obtaining for another a certificate of registration
8-31 shall be guilty of a Class C misdemeanor. Each day a violation of
8-32 this subsection occurs constitutes a separate offense.>
8-33 <(b)> A person, including a person who is not licensed under
8-34 this chapter, who violates this chapter or a rule or order of the
8-35 commission <department> adopted under this chapter is subject to a
8-36 civil penalty of not to exceed $1,000 for each offense. Each day a
8-37 violation is committed is a separate offense.
8-38 (b) <(c)> An action to recover the civil penalty <under
8-39 Subsection (b) of this section> may be brought by the commission
8-40 <department> in any court of competent jurisdiction in the county
8-41 in which the offending activity occurred, in which the defendant
8-42 resides, or in Travis County.
8-43 (c) <(d)> The commission <department> may enforce this
8-44 chapter or a valid rule or order of the commission <department> by
8-45 injunction or other appropriate remedy. The action may be brought
8-46 by the commission <department> in a court of competent jurisdiction
8-47 in the county in which the offending activity occurred, in which
8-48 the defendant resides, or in Travis County.
8-49 (d) <(e)> At the request of the commission <department>, the
8-50 attorney general shall institute and conduct a suit in the name of
8-51 the state to recover the civil penalty as provided under Subsection
8-52 (a) <(b) of this section> or for injunctive relief or other
8-53 appropriate remedy, or for both.
8-54 (e) A party to an action brought under this section may
8-55 appeal a final judgment in the manner provided for other civil
8-56 cases.
8-57 Sec. 34.013. Enforcement of Act. The executive director
8-58 with the assistance of the attorney general shall enforce this
8-59 chapter and the rules adopted by the commission <department>.
8-60 SECTION 8. The Texas irrigators fund is re-created as a
8-61 special fund to be used for the purposes specified in Chapter 34,
8-62 Water Code.
8-63 SECTION 9. The term of a member of the Texas irrigators
8-64 advisory council who is serving on the effective date of this Act
8-65 and whose term is to expire on September 15 of a year in accordance
8-66 with Section 34.003, Water Code, as it existed before the effective
8-67 date of this Act, is extended to February 1 of the year following
8-68 the year in which that member's term is to expire.
8-69 SECTION 10. This Act takes effect September 1, 1995.
8-70 SECTION 11. The importance of this legislation and the
9-1 crowded condition of the calendars in both houses create an
9-2 emergency and an imperative public necessity that the
9-3 constitutional rule requiring bills to be read on three several
9-4 days in each house be suspended, and this rule is hereby suspended.
9-5 * * * * *