By: Madla S.B. No. 1955
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the transfer of certain occupational certification and
1-2 licensing programs administered by the Texas Natural Resource
1-3 Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subdivisions (1), (2), and (7), Section 32.001,
1-6 Water Code, are amended to read as follows:
1-7 (1) ["Commission" means the Texas Natural Resource
1-8 Conservation Commission.]
1-9 [(2)] "Council" means the Texas water well drillers
1-10 advisory council.
1-11 (2) "Department" means the Texas Department of
1-12 Licensing and Regulation.
1-13 (7) "Executive director" means the executive director
1-14 of the department [Texas Natural Resource Conservation Commission].
1-15 SECTION 2. Subsections (a) through (f), (h), and (i),
1-16 Section 32.002, Water Code, are amended to read as follows:
1-17 (a) A person may not act as or offer to perform services as
1-18 a driller unless the person holds a license issued by the
1-19 department [commission] under this chapter and under rules adopted
1-20 under this chapter.
1-21 (b) An application for a license must contain [the
1-22 applicant's]:
1-23 (1) the applicant's name;
2-1 (2) the applicant's business address;
2-2 (3) the applicant's permanent mailing address; and
2-3 (4) any other relevant information required by the
2-4 department [commission].
2-5 (c) At the time of application, each applicant shall pay to
2-6 the department [commission] a nonrefundable examination fee.
2-7 (d) A person qualifying for a license shall pay to the
2-8 department [commission] the license fee set by the department
2-9 [commission].
2-10 (e) Except as provided by Section 32.003 [of this code], a
2-11 license issued under this chapter expires August 31 of each year.
2-12 On or before that day, each licensee shall pay an annual fee to the
2-13 department [commission] to renew the license. The department
2-14 [commission] shall notify each licensee in writing of the
2-15 licensee's impending license expiration not later than August 1 of
2-16 each year. If a person's license has been expired for 90 days or
2-17 less, the person may renew the license by paying to the department
2-18 [commission] the required renewal fee and a late fee equal to
2-19 one-half of the examination fee for the license. If a person's
2-20 license has been expired for more than 90 days but less than two
2-21 years, the person may renew the license by paying to the department
2-22 [commission] all unpaid renewal fees and a late fee that is equal
2-23 to the examination fee for the license. If a person's license has
2-24 been expired for two years or more, the person may not renew the
2-25 license. The person may obtain a new license by submitting to
3-1 reexamination and complying with the requirements and procedures
3-2 for obtaining an original license.
3-3 (f) The department [commission] shall maintain a current
3-4 register of licensees.
3-5 (h) The department [commission] shall issue a duplicate
3-6 license to replace a lost or destroyed license on proper
3-7 application and payment of a fee.
3-8 (i) The department [commission] by rule shall set the fees
3-9 imposed by this chapter in amounts that are reasonable and
3-10 necessary to cover the costs of administering this chapter.
3-11 SECTION 3. Sections 32.003, 32.004, and 32.005, Water Code,
3-12 are amended to read as follows:
3-13 Sec. 32.003. STAGGERED RENEWAL OF LICENSES. The department
3-14 [commission] by rule may adopt a system under which licenses expire
3-15 on various dates during the year. For the year in which the
3-16 license expiration date is changed, license renewal fees payable on
3-17 August 31 shall be prorated. On renewal of the license on the new
3-18 expiration date, the total license renewal fee is payable.
3-19 Sec. 32.004. PERSONS LICENSED IN OTHER STATES. The
3-20 department [commission] may adopt rules allowing waiver of a
3-21 license requirement for an applicant with a valid license from
3-22 another state having license requirements substantially equivalent
3-23 to those of this state.
3-24 Sec. 32.005. REPORTING OF WELL LOGS. (a) Every licensed
3-25 driller drilling, deepening, or otherwise altering a water well in
4-1 this state shall make and keep a legible and accurate well log in
4-2 accordance with department [commission] rule on forms prescribed by
4-3 the department [commission]. Not later than the 60th day after the
4-4 completion or cessation of drilling, deepening, or otherwise
4-5 altering the well, the licensed driller shall deliver or transmit
4-6 by certified mail a copy of the well log to the department, the
4-7 Texas Natural Resource Conservation Commission, [commission] and
4-8 [to] the owner of the well or the person for whom the well was
4-9 drilled. [Each copy of a well log, other than a commission copy,
4-10 must include the name, mailing address, and telephone number of the
4-11 commission.]
4-12 (b) The well log shall be recorded at the time of drilling
4-13 and must show the depth, thickness, and character of the strata
4-14 penetrated, the location of water-bearing strata, the depth, size,
4-15 and character of casing installed, and any other information
4-16 required by department [commission] rule.
4-17 (c) The department [commission] shall hold the contents of
4-18 the well log confidential and not a matter of public record if it
4-19 receives, by certified mail, a written request to do so from the
4-20 owner or the person for whom the well was drilled.
4-21 SECTION 4. Section 32.006, Water Code, is amended by
4-22 amending Subsections (a) and (e) and adding Subsections (m) and (n)
4-23 to read as follows:
4-24 (a) The Texas water well drillers advisory council is
4-25 composed of nine members appointed by the department [commission].
5-1 Appointments to the council shall be made without regard to the
5-2 race, creed, sex, religion, or national origin of the appointees.
5-3 (e) A council member or an employee of the department
5-4 [commission] connected with the administration of this chapter may
5-5 not be an officer, employee, or paid consultant of a trade
5-6 association in the well drilling industry and may not be related
5-7 within the second degree by affinity or consanguinity to a person
5-8 who is an officer, employee, or paid consultant of a trade
5-9 association in the well drilling industry.
5-10 (m) The council shall:
5-11 (1) advise the department on the contents of the
5-12 licensing examination; and
5-13 (2) assist the department in the evaluation of
5-14 continuing education programs.
5-15 (n) The council may:
5-16 (1) recommend standards for continuing education
5-17 programs, including standards relating to the:
5-18 (A) qualifications of program providers and
5-19 instructors; and
5-20 (B) level of program fees;
5-21 (2) recommend topics to be covered in a continuing
5-22 education course;
5-23 (3) propose rules for adoption by the department
5-24 relating to the regulation of drillers registered under this
5-25 chapter; and
6-1 (4) hear consumer complaints and make recommendations
6-2 to the department as to their disposition.
6-3 SECTION 5. Subsections (a) through (f), Section 32.007,
6-4 Water Code, are amended to read as follows:
6-5 (a) The department [commission], with the advice of the
6-6 council, shall prepare licensing examinations, pass on the
6-7 qualifications of license applicants, and issue licenses to those
6-8 who qualify.
6-9 (b) The department [commission] shall design written
6-10 examinations in a manner that disqualifies a person lacking in the
6-11 necessary knowledge of drilling, of completion and plugging methods
6-12 and techniques, and of groundwater formations to the extent that
6-13 the performance by the person of services as a driller would create
6-14 a serious risk of polluting fresh water. The department
6-15 [commission] may prescribe additional requirements for the
6-16 examination of monitoring well drillers and may prescribe
6-17 additional requirements relating to water conservation for the
6-18 examination of dewatering well drillers. An applicant may elect to
6-19 have the examination given orally.
6-20 (c) The department [commission] shall offer examinations at
6-21 least once a year. The department [commission] shall offer the
6-22 examinations more frequently if more than 10 persons petition for
6-23 an additional examination.
6-24 (d) The department [commission] shall administer the
6-25 examination so that a person grading the examination does not know
7-1 whose paper is being graded.
7-2 (e) Not later than the 30th day after the date a licensing
7-3 examination is administered under this chapter, the department
7-4 [commission] shall notify each examinee of the results of the
7-5 examination.
7-6 (f) The department [commission] shall maintain files of
7-7 examination papers. A person, at any time within six months of the
7-8 date that the person is notified of the results of an examination,
7-9 is entitled to inspect the person's examination paper during normal
7-10 business hours at the department's [commission's] offices for the
7-11 purpose of challenging the propriety of the questions, the method
7-12 of grading, and the accuracy of grading. If requested in writing
7-13 by a person who fails the licensing examination, the department
7-14 [commission] shall furnish the person with an analysis of the
7-15 person's performance on the examination.
7-16 SECTION 6. Sections 32.008 and 32.009, Water Code, are
7-17 amended to read as follows:
7-18 Sec. 32.008. CONTINUING EDUCATION. The department
7-19 [commission], with the participation of the council, may recognize,
7-20 prepare, or offer continuing education programs for licensees.
7-21 Participation in continuing education programs is voluntary unless
7-22 the council determines that the department should require
7-23 participation.
7-24 Sec. 32.009. RULES AND REGULATIONS. (a) The department,
7-25 with advice and comment from the Texas Natural Resource
8-1 Conservation Commission, [commission] shall adopt rules as
8-2 necessary to enforce this chapter, including rules governing
8-3 applications for a license, qualifications of applicants, standards
8-4 of conduct for licensed drillers including marking of well drilling
8-5 rigs and equipment, and rules governing procedure and practice
8-6 before the department [commission].
8-7 (b) The department [commission] may enforce by injunction or
8-8 other appropriate remedy in courts of competent jurisdiction any
8-9 rule, decisions, determinations, or orders adopted or entered by it
8-10 that do not conflict with a statute. The attorney general shall
8-11 represent the department [commission] on request.
8-12 (c) The department [commission] shall adopt rules in
8-13 accordance with Chapter 2001, Government Code.
8-14 (d) Notwithstanding Subsection (a) [of this section], the
8-15 department [commission] may not adopt rules under this chapter:
8-16 (1) regulating the installation or repair of well
8-17 pumps and equipment by a person who owns or is in control of
8-18 property or the person's employee or a person not hired or
8-19 compensated acting on the person's behalf on the property the
8-20 person owns or controls for the person's own use; or
8-21 (2) requiring a person who owns or is in control of
8-22 property or possesses a well to complete, repair, or retrofit the
8-23 well to any standard other than a standard in effect at the time
8-24 the well was originally completed unless the well is found to be a
8-25 threat to public health and safety or to water quality.
9-1 SECTION 7. Subsections (a), (c), and (d), Section 32.010,
9-2 Water Code, are amended to read as follows:
9-3 (a) The department [commission] may, after notice and
9-4 hearing, revoke or suspend a license, place on probation a person
9-5 whose license has been suspended, or reprimand a licensee for a
9-6 violation of this chapter or a rule adopted under this chapter.
9-7 (c) The department [commission], before revoking a license,
9-8 placing a licensee on probation, or reprimanding a licensee, shall
9-9 notify the licensee in writing of the alleged violation and provide
9-10 the licensee with an opportunity for a hearing. The notice shall
9-11 be given not later than the 10th day before the date set for the
9-12 hearing. The notice shall be made by registered mail to the last
9-13 known business address of the licensee. The licensee, each person
9-14 complaining against the licensee, and any other witness whose
9-15 testimony is relied on to substantiate the charges made may be
9-16 present at the hearing. The licensee may present relevant oral or
9-17 written evidence.
9-18 (d) Each decision and order in a disciplinary hearing
9-19 rendered by the department [commission] must be made in writing and
9-20 must set forth briefly the findings of fact and the department's
9-21 [commission's] conclusions. Parties to the proceedings shall be
9-22 notified of the decision or order not later than the 30th day after
9-23 the conclusion of the hearing.
9-24 SECTION 8. Subsections (a), (b), (d), (e), (f), (g), (i),
9-25 and (j), Section 32.011, Water Code, are amended to read as
10-1 follows:
10-2 (a) If a person fails to comply with a provision of this
10-3 chapter or a rule adopted by the department [commission] under this
10-4 chapter, the person may be assessed, in addition to other
10-5 penalties, an administrative penalty set by the department
10-6 [commission] in an amount not to exceed $2,500 for each violation.
10-7 (b) In determining the amount of the penalty, the department
10-8 [commission] shall consider the person's history of previous
10-9 violations and the seriousness of the failure to comply.
10-10 (d) If a public hearing is held, the department [commission]
10-11 shall make findings of fact and issue a written decision as to the
10-12 occurrence of the violation and, when appropriate, an order that a
10-13 penalty be paid.
10-14 (e) If the person charged with a violation does not appear
10-15 for the hearing, the department [commission] may assess a penalty
10-16 and issue an order that the penalty be paid after the department
10-17 [commission] has determined that a violation occurred.
10-18 (f) Not later than the 30th day after the date on which an
10-19 order is issued, the department [commission] shall inform a person
10-20 ordered to pay a penalty under this section of the amount of the
10-21 penalty.
10-22 (g) Not later than the 30th day after the date the order
10-23 becomes final under Subchapter F, Chapter 2001, Government Code,
10-24 the person charged with the penalty shall:
10-25 (1) pay the penalty in full;
11-1 (2) forward the amount to the department [commission]
11-2 for placement in an escrow account pending judicial review of the
11-3 matter; or
11-4 (3) post with the department [commission] a
11-5 supersedeas bond for the amount of the penalty until judicial
11-6 review is final.
11-7 (i) If a court determines that a violation has not occurred
11-8 or that the amount of the penalty should be reduced or not
11-9 assessed, the department [commission] shall remit the appropriate
11-10 amount to the person with interest or execute release of the bond.
11-11 (j) An administrative penalty owed under this section may be
11-12 recovered in a civil action brought by the attorney general at the
11-13 request of the department [commission].
11-14 SECTION 9. Sections 32.012 through 32.016, Water Code, are
11-15 amended to read as follows:
11-16 Sec. 32.012. APPEAL OF DEPARTMENT [COMMISSION] ACTION.
11-17 (a) A person affected by a ruling, order, decision, or other act
11-18 of the department [commission] may appeal by filing a petition in a
11-19 district court in Travis County.
11-20 (b) A petition must be filed not later than the 30th day
11-21 after the date of the department's [commission's] action or, in the
11-22 case of a ruling, order, or decision, not later than the 30th day
11-23 after its effective date.
11-24 (c) Service of citation on the department [commission] shall
11-25 be accomplished not later than the 30th day after the date the
12-1 petition was filed. Citation may be served on the executive
12-2 director.
12-3 (d) The plaintiff must pursue the action with reasonable
12-4 diligence.
12-5 (e) The substantial evidence rule applies in the judicial
12-6 review of any department [commission] action, ruling, order, or
12-7 decision. An administrative or executive action taken before the
12-8 filing of the suit continues in force and effect until the rights
12-9 of the parties are determined by the court.
12-10 Sec. 32.013. COMPLAINTS. (a) The department [commission]
12-11 shall prepare information of consumer interest describing the
12-12 procedures by which consumer complaints under this chapter are
12-13 filed with and resolved by it. The department [commission] shall
12-14 make the information available to the public and appropriate state
12-15 agencies.
12-16 (b) If a written complaint under this chapter is filed with
12-17 the department [commission] relating to a licensee, the department
12-18 [commission], at least quarterly, shall notify the parties to the
12-19 complaint of the status of the complaint until final disposition
12-20 unless the notice would jeopardize an undercover investigation.
12-21 The department [commission] shall maintain a file about each
12-22 complaint filed against a licensee.
12-23 Sec. 32.014. DISPOSITION OF REVENUES. (a) The financial
12-24 transactions of the department [commission] in connection with the
12-25 administration of this chapter are subject to audit by the state
13-1 auditor in accordance with Chapter 321, Government Code.
13-2 (b) All money collected by the department [commission] under
13-3 this chapter shall be deposited to the credit of the water well
13-4 drillers fund account in the general revenue fund and may be used
13-5 only to administer this chapter. The department [commission] shall
13-6 allocate not more than 20 percent of the money in the account
13-7 [water well drillers fund] to cover administrative costs of the
13-8 department [commission].
13-9 Sec. 32.015. CIVIL PENALTY. A person who fails to comply
13-10 with this chapter or a rule adopted by the department [commission]
13-11 under this chapter is subject to a civil penalty of not less than
13-12 $200 or more than $1,000 for each day of noncompliance or each act
13-13 of noncompliance as determined by the court. The department
13-14 [commission] may also seek injunctive relief for a violation of
13-15 this chapter. The action may be brought by the department
13-16 [commission] in any court of competent jurisdiction in Travis
13-17 County or the county in which the offending activity occurred or in
13-18 which the person resides. At the request of the executive
13-19 director, the attorney general shall bring an action in the name of
13-20 the state for injunctive relief, to recover the civil penalty, or
13-21 for both the injunctive relief and civil penalty, as authorized by
13-22 this section. A party to an action may appeal from a final
13-23 judgment as in other civil cases. The obtaining of a license under
13-24 this chapter by a person does not relieve the person from liability
13-25 under law.
14-1 Sec. 32.016. MARKING RIGS WITH IDENTIFICATION NUMBER. A
14-2 driller shall legibly mark all rigs used by the driller or the
14-3 driller's employees in the well drilling business with the license
14-4 number that appears on the driller's license. The department
14-5 [commission] shall adopt rules specifying the method and manner for
14-6 marking the rigs.
14-7 SECTION 10. Subsections (a), (b), (c), and (e), Section
14-8 32.017, Water Code, are amended to read as follows:
14-9 (a) A licensed driller shall complete a well under standards
14-10 and procedures adopted by the department [commission].
14-11 (b) A licensed driller shall notify the department
14-12 [commission] and the landowner or person having a well drilled when
14-13 the driller encounters water injurious to vegetation, land, or
14-14 other water, and the well must be plugged, repaired, or properly
14-15 completed in order to avoid injury or pollution. The driller shall
14-16 assure that the well is plugged, repaired, or properly completed
14-17 under standards and procedures adopted by the department
14-18 [commission].
14-19 (c) Not later than the 180th day after the date on which a
14-20 landowner or other person who possesses an abandoned or
14-21 deteriorated well learns of its condition, the landowner or other
14-22 person who possesses an abandoned or deteriorated well shall have
14-23 the well plugged or capped under standards and procedures adopted
14-24 by the department [commission]. A licensed driller who knows of an
14-25 abandoned or deteriorated well shall notify the landowner or person
15-1 possessing the well that the well must be plugged or capped in
15-2 order to avoid injury or pollution.
15-3 (e) A licensed driller, licensed pump installer, or well
15-4 owner who plugs an abandoned or deteriorated well shall submit a
15-5 plugging report to the executive director not later than the 30th
15-6 day after the date the well is plugged. The department
15-7 [commission] shall furnish plugging report forms on request.
15-8 SECTION 11. Section 32.019, Water Code, is amended to read
15-9 as follows:
15-10 Sec. 32.019. TRANSFER OF FUNCTIONS. If the functions of the
15-11 department [commission] necessary to the proper implementation of
15-12 its duties under this chapter are transferred to another agency,
15-13 the powers and duties given in this chapter to the department
15-14 [commission] shall be transferred to the other agency.
15-15 SECTION 12. Subdivisions (2) and (3), Section 33.001, Water
15-16 Code, are amended to read as follows:
15-17 (2) "Department" ["Commission"] means the Texas
15-18 Department of Licensing and Regulation [Natural Resource
15-19 Conservation Commission].
15-20 (3) "Executive director" means the executive director
15-21 of the department [Texas Natural Resource Conservation Commission].
15-22 SECTION 13. Subsections (a) through (e), (g), and (h),
15-23 Section 33.002, Water Code, are amended to read as follows:
15-24 (a) A person may not act as or offer to perform the services
15-25 of an installer unless the person holds a license issued by the
16-1 department [commission] under rules adopted under this chapter.
16-2 (b) An application for a license must contain [the
16-3 applicant's]:
16-4 (1) the applicant's name;
16-5 (2) the applicant's business address;
16-6 (3) the applicant's permanent mailing address; and
16-7 (4) any other information required by the department
16-8 [commission].
16-9 (c) At the time of application, an applicant shall pay to
16-10 the department [commission] a nonrefundable examination fee. A
16-11 person qualifying for a license shall pay to the department
16-12 [commission] the license fee set by the department [commission].
16-13 (d) Except as provided by Section 33.003 [of this code], a
16-14 license issued under this chapter expires on August 31 of each
16-15 year. On or before that day, each licensee shall pay an annual fee
16-16 to the department [commission] to renew the license. The
16-17 department [commission] shall notify each licensee in writing of
16-18 the impending license expiration not later than August 1 of each
16-19 year. If a person's license has been expired for 90 days or less,
16-20 the person may renew the license by paying to the department
16-21 [commission] the required renewal fee and a late fee that is equal
16-22 to one-half of the examination fee for the license. If a person's
16-23 license has been expired for more than 90 days but less than two
16-24 years, the person may renew the license by paying to the department
16-25 [commission] all unpaid renewal fees and a late fee that is equal
17-1 to the examination fee for the license. If a person's license has
17-2 been expired two years or more, the person may not renew the
17-3 license. The person may obtain a new license by submitting to
17-4 reexamination and complying with the requirements for obtaining an
17-5 original license.
17-6 (e) The department [commission] shall maintain a current
17-7 register of licensees.
17-8 (g) The department [commission] shall issue a duplicate
17-9 license to replace a lost or destroyed license on proper
17-10 application and payment of a fee.
17-11 (h) The department [commission] by rule shall set the fees
17-12 imposed under this chapter in amounts that are reasonable and
17-13 necessary to cover the costs of administering this chapter.
17-14 SECTION 14. Sections 33.003 through 33.008, Water Code, are
17-15 amended to read as follows:
17-16 Sec. 33.003. STAGGERED RENEWAL OF LICENSES. The department
17-17 [commission] by rule may adopt a system under which licenses expire
17-18 on various dates during the year. For the year in which the
17-19 license expiration date is changed, license renewal fees payable on
17-20 August 31 shall be prorated. On renewal of the license on the new
17-21 expiration date, the total license renewal fee is payable.
17-22 Sec. 33.004. PERSONS LICENSED IN OTHER STATES. The
17-23 department [commission] may adopt rules allowing waiver of a
17-24 license requirement for an applicant with a valid license from
17-25 another state that has license requirements substantially
18-1 equivalent to those of this state.
18-2 Sec. 33.005. EXAMINATIONS. (a) The department
18-3 [commission], with the advice of the council, shall prepare
18-4 licensing examinations, pass on the qualifications of license
18-5 applicants, and issue licenses to those who qualify.
18-6 (b) The department [commission] shall design written
18-7 examinations in such a manner as to disqualify a person lacking the
18-8 knowledge of pump installation to the extent that the performance
18-9 by the person of pump installation would create a serious risk of
18-10 polluting fresh water.
18-11 (c) The department [commission] shall offer examinations
18-12 prepared by it at least once a month and more frequently if more
18-13 than 10 persons petition it for an additional examination. The
18-14 examination shall be administered so that a person grading the
18-15 examination does not know whose paper is being graded. The
18-16 department [commission] shall maintain files of examination papers.
18-17 Sec. 33.006. CONTINUING EDUCATION. The department
18-18 [commission], with the participation of the council, may recognize,
18-19 prepare, or offer continuing education programs for licensees.
18-20 Participation in continuing education programs is voluntary unless
18-21 the council determines that the department should require
18-22 participation.
18-23 Sec. 33.007. RULES. (a) The department [commission] shall
18-24 adopt rules as necessary to enforce this chapter.
18-25 (b) The department [commission] may enforce by injunction or
19-1 other appropriate remedy in courts of competent jurisdiction any
19-2 rule, decisions, determinations, or orders adopted or entered by it
19-3 that do not conflict with a statute. The attorney general shall
19-4 represent the department [commission] on request.
19-5 (c) The department [commission] shall adopt rules in
19-6 accordance with Chapter 2001, Government Code.
19-7 (d) Notwithstanding Subsection (a) [of this section], the
19-8 department [commission] may not adopt rules under this chapter:
19-9 (1) regulating the installation or repair of well
19-10 pumps and equipment by a person who owns or is in control of
19-11 property or the person's employee or a person not hired or
19-12 compensated acting on the person's behalf on the property the
19-13 person owns or controls for the person's own use; or
19-14 (2) requiring a person who owns or is in control of
19-15 property or possesses a well to complete, repair, or retrofit the
19-16 well to any standard other than a standard in effect at the time
19-17 the well was originally completed unless the well is found to be a
19-18 threat to public health and safety or to water quality.
19-19 Sec. 33.008. REVOCATION OF LICENSES. (a) The department
19-20 [commission] may revoke a license, place a licensee on probation,
19-21 or reprimand a licensee for a violation of this chapter or a rule
19-22 adopted under this chapter.
19-23 (b) The department [commission], before revoking a license,
19-24 placing a licensee on probation, or reprimanding a licensee, shall
19-25 notify the licensee in writing of the alleged violation and provide
20-1 the licensee with an opportunity for a hearing. The notice shall
20-2 be given not later than the 10th day before the date set for the
20-3 hearing. The notice shall be made by registered mail to the last
20-4 known business address of the licensee. The licensee, each person
20-5 complaining against the licensee, and any other witness whose
20-6 testimony is relied on to substantiate the charges made may be
20-7 present at the hearing. The licensee may present relevant oral or
20-8 written evidence.
20-9 (c) Each decision and order in a disciplinary hearing
20-10 rendered by the department [commission] must be made in writing and
20-11 must set forth briefly the findings of fact and the department's
20-12 [commission's] conclusions. Parties to the proceedings shall be
20-13 notified of the decision or order not later than the 30th day after
20-14 the conclusion of the hearing.
20-15 SECTION 15. Subsections (a), (b), (d), (e), (f), (g), (i),
20-16 and (j), Section 33.009, Water Code, are amended to read as
20-17 follows:
20-18 (a) If a person fails to comply with a provision of this
20-19 chapter or a rule adopted by the department [commission] under this
20-20 chapter, the person may be assessed, in addition to other
20-21 penalties, an administrative penalty set by the department
20-22 [commission] in an amount not to exceed $2,500 for each violation.
20-23 (b) In determining the amount of the penalty, the department
20-24 [commission] shall consider the person's history of previous
20-25 violations and the seriousness of the failure to comply.
21-1 (d) If a public hearing is held, the department [commission]
21-2 shall make findings of fact and issue a written decision as to the
21-3 occurrence of the violation and, when appropriate, an order that a
21-4 penalty be paid.
21-5 (e) If the person charged with a violation does not appear
21-6 for the hearing, the department [commission] may assess a penalty
21-7 and issue an order that the penalty be paid after the department
21-8 [commission] has determined that a violation occurred.
21-9 (f) Not later than the 30th day after the date on which an
21-10 order is issued, the department [commission] shall inform a person
21-11 ordered to pay a penalty under this section of the amount of the
21-12 penalty.
21-13 (g) Not later than the 30th day after the date the order
21-14 becomes final under Subchapter F, Chapter 2001, Government Code,
21-15 the person charged with the penalty shall:
21-16 (1) pay the penalty in full;
21-17 (2) forward the amount to the department [commission]
21-18 for placement in an escrow account pending judicial review of the
21-19 matter; or
21-20 (3) post with the department [commission] a
21-21 supersedeas bond for the amount of the penalty until judicial
21-22 review is final.
21-23 (i) If a court determines that a violation has not occurred
21-24 or that the amount of the penalty should be reduced or not
21-25 assessed, the department [commission] shall remit the appropriate
22-1 amount to the person with interest or execute release of the bond.
22-2 (j) An administrative penalty owed under this section may be
22-3 recovered in a civil action brought by the attorney general at the
22-4 request of the department [commission].
22-5 SECTION 16. Sections 33.010 through 33.013, Water Code, are
22-6 amended to read as follows:
22-7 Sec. 33.010. APPEAL OF DEPARTMENT [COMMISSION] ACTION.
22-8 (a) A person affected by a ruling, order, decision, or other act
22-9 of the department [commission] may appeal by filing a petition in a
22-10 district court in Travis County.
22-11 (b) A petition must be filed not later than the 30th day
22-12 after the date of the department's [commission's] action or, in the
22-13 case of a ruling, order, or decision, not later than the 30th day
22-14 after its effective date.
22-15 (c) Service of citation on the department [commission] shall
22-16 be accomplished not later than the 30th day after the date the
22-17 petition was filed. Citation may be served on the executive
22-18 director.
22-19 (d) The plaintiff must pursue the action with reasonable
22-20 diligence.
22-21 (e) The substantial evidence rule applies in the judicial
22-22 review of any department [commission] action, ruling, order, or
22-23 decision. An administrative or executive action taken before the
22-24 filing of the suit continues in force and effect until the rights
22-25 of the parties are determined by the court.
23-1 Sec. 33.011. COMPLAINTS. (a) The department [commission]
23-2 shall prepare information of consumer interest describing the
23-3 procedures by which consumer complaints under this chapter are
23-4 filed with and resolved by it. The department [commission] shall
23-5 make the information available to the public and appropriate state
23-6 agencies. The council may hear consumer complaints and make
23-7 recommendations to the department as to their disposition.
23-8 (b) If a written complaint under this chapter is filed with
23-9 the department [commission] relating to a licensee, the department
23-10 [commission], at least quarterly, shall notify the parties to the
23-11 complaint of the status of the complaint until final disposition
23-12 unless the notice would jeopardize an undercover investigation.
23-13 The department [commission] shall maintain a file about each
23-14 complaint filed against a licensee.
23-15 Sec. 33.012. DISPOSITION OF REVENUES. (a) The financial
23-16 transactions of the department [commission] in connection with the
23-17 administration of this chapter are subject to audit by the state
23-18 auditor in accordance with Chapter 321, Government Code.
23-19 (b) All money collected by the department [commission] under
23-20 this chapter shall be deposited to the credit of the water well
23-21 drillers fund account in the general revenue fund and may be used
23-22 only to administer this chapter. The department shall allocate not
23-23 more than 20 percent of the money in the account to cover
23-24 administrative costs of the department.
23-25 Sec. 33.013. CIVIL PENALTY. A person who fails to comply
24-1 with this chapter or a rule adopted by the department [commission]
24-2 under this chapter is subject to a civil penalty of not less than
24-3 $200 or more than $1,000 for each day of noncompliance or each act
24-4 of noncompliance as determined by the court. The department
24-5 [commission] may also seek injunctive relief for a violation of
24-6 this chapter. The action may be brought by the department
24-7 [commission] in any court of competent jurisdiction in Travis
24-8 County in which the offending activity occurred or in which the
24-9 person resides. At the request of the executive director, the
24-10 attorney general shall bring an action in the name of the state for
24-11 injunctive relief, to recover the civil penalty, or for both the
24-12 injunctive relief and civil penalty, as authorized by this section.
24-13 A party to an action may appeal from a final judgment as in other
24-14 civil cases. The obtaining of a license under this chapter by a
24-15 person does not relieve the person from liability under law.
24-16 SECTION 17. Subsections (a) and (b), Section 33.014, Water
24-17 Code, are amended to read as follows:
24-18 (a) Each installer licensed under this chapter shall install
24-19 or repair pumps under standards and procedures adopted by the
24-20 department [commission] with the advice of the council.
24-21 (b) Each licensed installer shall notify the department
24-22 [commission] and the landowner or person having a pump installed or
24-23 repaired when the installer encounters water injurious to
24-24 vegetation, land, or other water, and the installer shall repair or
24-25 properly complete the well in order to avoid injury or pollution.
25-1 The installer shall ensure that the well is repaired or properly
25-2 completed under standards and procedures adopted by the department
25-3 [commission].
25-4 SECTION 18. Section 33.015, Water Code, is amended to read
25-5 as follows:
25-6 Sec. 33.015. TRANSFER OF FUNCTIONS. If the functions of the
25-7 department [commission] necessary to the proper implementation of
25-8 its duties under this chapter are transferred to any other agency,
25-9 the powers and duties given to the department [commission] in this
25-10 chapter shall be transferred to the other agency.
25-11 SECTION 19. (a) This Act takes effect September 1, 1997.
25-12 (b) On the effective date of this Act and except as
25-13 otherwise provided by this Act, all powers and duties of the Texas
25-14 Natural Resource Conservation Commission under Chapters 32 and 33,
25-15 Water Code, and all obligations, rights, contracts, records, real
25-16 or personal property, and personnel of the commission relating to
25-17 those powers and duties are transferred to the Texas Department of
25-18 Licensing and Regulation.
25-19 (c) An obligation payable by the Texas Natural Resource
25-20 Conservation Commission from the water well drillers fund account
25-21 established by Sections 32.014 and 33.012, Water Code, that is
25-22 transferred by this Act to the Texas Department of Licensing and
25-23 Regulation may be paid under applicable law by the department from
25-24 the unexpended balance of an appropriation from the fund made to
25-25 the commission for the state fiscal biennium ending August 31,
26-1 1997.
26-2 (d) An appropriation to the Texas Natural Resource
26-3 Conservation Commission for the state fiscal biennium beginning
26-4 September 1, 1997, for the performance of a power or duty under
26-5 Chapter 32 or 33, Water Code, transferred under this Act to the
26-6 Texas Department of Licensing and Regulation is transferred to the
26-7 department on that date.
26-8 SECTION 20. The importance of this legislation and the
26-9 crowded condition of the calendars in both houses create an
26-10 emergency and an imperative public necessity that the
26-11 constitutional rule requiring bills to be read on three several
26-12 days in each house be suspended, and this rule is hereby suspended.