1-1 By: Madla S.B. No. 1955
1-2 (In the Senate - Filed May 12, 1997; May 14, 1997, read first
1-3 time and referred to Committee on Natural Resources; May 16, 1997,
1-4 reported favorably by the following vote: Yeas 10, Nays 0;
1-5 May 16, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the transfer of certain occupational certification and
1-9 licensing programs administered by the Texas Natural Resource
1-10 Conservation Commission.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subdivisions (1), (2), and (7), Section 32.001,
1-13 Water Code, are amended to read as follows:
1-14 (1) ["Commission" means the Texas Natural Resource
1-15 Conservation Commission.]
1-16 [(2)] "Council" means the Texas water well drillers
1-17 advisory council.
1-18 (2) "Department" means the Texas Department of
1-19 Licensing and Regulation.
1-20 (7) "Executive director" means the executive director
1-21 of the department [Texas Natural Resource Conservation Commission].
1-22 SECTION 2. Subsections (a) through (f), (h), and (i),
1-23 Section 32.002, Water Code, are amended to read as follows:
1-24 (a) A person may not act as or offer to perform services as
1-25 a driller unless the person holds a license issued by the
1-26 department [commission] under this chapter and under rules adopted
1-27 under this chapter.
1-28 (b) An application for a license must contain [the
1-29 applicant's]:
1-30 (1) the applicant's name;
1-31 (2) the applicant's business address;
1-32 (3) the applicant's permanent mailing address; and
1-33 (4) any other relevant information required by the
1-34 department [commission].
1-35 (c) At the time of application, each applicant shall pay to
1-36 the department [commission] a nonrefundable examination fee.
1-37 (d) A person qualifying for a license shall pay to the
1-38 department [commission] the license fee set by the department
1-39 [commission].
1-40 (e) Except as provided by Section 32.003 [of this code], a
1-41 license issued under this chapter expires August 31 of each year.
1-42 On or before that day, each licensee shall pay an annual fee to the
1-43 department [commission] to renew the license. The department
1-44 [commission] shall notify each licensee in writing of the
1-45 licensee's impending license expiration not later than August 1 of
1-46 each year. If a person's license has been expired for 90 days or
1-47 less, the person may renew the license by paying to the department
1-48 [commission] the required renewal fee and a late fee equal to
1-49 one-half of the examination fee for the license. If a person's
1-50 license has been expired for more than 90 days but less than two
1-51 years, the person may renew the license by paying to the department
1-52 [commission] all unpaid renewal fees and a late fee that is equal
1-53 to the examination fee for the license. If a person's license has
1-54 been expired for two years or more, the person may not renew the
1-55 license. The person may obtain a new license by submitting to
1-56 reexamination and complying with the requirements and procedures
1-57 for obtaining an original license.
1-58 (f) The department [commission] shall maintain a current
1-59 register of licensees.
1-60 (h) The department [commission] shall issue a duplicate
1-61 license to replace a lost or destroyed license on proper
1-62 application and payment of a fee.
1-63 (i) The department [commission] by rule shall set the fees
1-64 imposed by this chapter in amounts that are reasonable and
2-1 necessary to cover the costs of administering this chapter.
2-2 SECTION 3. Sections 32.003, 32.004, and 32.005, Water Code,
2-3 are amended to read as follows:
2-4 Sec. 32.003. STAGGERED RENEWAL OF LICENSES. The department
2-5 [commission] by rule may adopt a system under which licenses expire
2-6 on various dates during the year. For the year in which the
2-7 license expiration date is changed, license renewal fees payable on
2-8 August 31 shall be prorated. On renewal of the license on the new
2-9 expiration date, the total license renewal fee is payable.
2-10 Sec. 32.004. PERSONS LICENSED IN OTHER STATES. The
2-11 department [commission] may adopt rules allowing waiver of a
2-12 license requirement for an applicant with a valid license from
2-13 another state having license requirements substantially equivalent
2-14 to those of this state.
2-15 Sec. 32.005. REPORTING OF WELL LOGS. (a) Every licensed
2-16 driller drilling, deepening, or otherwise altering a water well in
2-17 this state shall make and keep a legible and accurate well log in
2-18 accordance with department [commission] rule on forms prescribed by
2-19 the department [commission]. Not later than the 60th day after the
2-20 completion or cessation of drilling, deepening, or otherwise
2-21 altering the well, the licensed driller shall deliver or transmit
2-22 by certified mail a copy of the well log to the department, the
2-23 Texas Natural Resource Conservation Commission, [commission] and
2-24 [to] the owner of the well or the person for whom the well was
2-25 drilled. [Each copy of a well log, other than a commission copy,
2-26 must include the name, mailing address, and telephone number of the
2-27 commission.]
2-28 (b) The well log shall be recorded at the time of drilling
2-29 and must show the depth, thickness, and character of the strata
2-30 penetrated, the location of water-bearing strata, the depth, size,
2-31 and character of casing installed, and any other information
2-32 required by department [commission] rule.
2-33 (c) The department [commission] shall hold the contents of
2-34 the well log confidential and not a matter of public record if it
2-35 receives, by certified mail, a written request to do so from the
2-36 owner or the person for whom the well was drilled.
2-37 SECTION 4. Section 32.006, Water Code, is amended by
2-38 amending Subsections (a) and (e) and adding Subsections (m) and (n)
2-39 to read as follows:
2-40 (a) The Texas water well drillers advisory council is
2-41 composed of nine members appointed by the department [commission].
2-42 Appointments to the council shall be made without regard to the
2-43 race, creed, sex, religion, or national origin of the appointees.
2-44 (e) A council member or an employee of the department
2-45 [commission] connected with the administration of this chapter may
2-46 not be an officer, employee, or paid consultant of a trade
2-47 association in the well drilling industry and may not be related
2-48 within the second degree by affinity or consanguinity to a person
2-49 who is an officer, employee, or paid consultant of a trade
2-50 association in the well drilling industry.
2-51 (m) The council shall:
2-52 (1) advise the department on the contents of the
2-53 licensing examination; and
2-54 (2) assist the department in the evaluation of
2-55 continuing education programs.
2-56 (n) The council may:
2-57 (1) recommend standards for continuing education
2-58 programs, including standards relating to the:
2-59 (A) qualifications of program providers and
2-60 instructors; and
2-61 (B) level of program fees;
2-62 (2) recommend topics to be covered in a continuing
2-63 education course;
2-64 (3) propose rules for adoption by the department
2-65 relating to the regulation of drillers registered under this
2-66 chapter; and
2-67 (4) hear consumer complaints and make recommendations
2-68 to the department as to their disposition.
2-69 SECTION 5. Subsections (a) through (f), Section 32.007,
3-1 Water Code, are amended to read as follows:
3-2 (a) The department [commission], with the advice of the
3-3 council, shall prepare licensing examinations, pass on the
3-4 qualifications of license applicants, and issue licenses to those
3-5 who qualify.
3-6 (b) The department [commission] shall design written
3-7 examinations in a manner that disqualifies a person lacking in the
3-8 necessary knowledge of drilling, of completion and plugging methods
3-9 and techniques, and of groundwater formations to the extent that
3-10 the performance by the person of services as a driller would create
3-11 a serious risk of polluting fresh water. The department
3-12 [commission] may prescribe additional requirements for the
3-13 examination of monitoring well drillers and may prescribe
3-14 additional requirements relating to water conservation for the
3-15 examination of dewatering well drillers. An applicant may elect to
3-16 have the examination given orally.
3-17 (c) The department [commission] shall offer examinations at
3-18 least once a year. The department [commission] shall offer the
3-19 examinations more frequently if more than 10 persons petition for
3-20 an additional examination.
3-21 (d) The department [commission] shall administer the
3-22 examination so that a person grading the examination does not know
3-23 whose paper is being graded.
3-24 (e) Not later than the 30th day after the date a licensing
3-25 examination is administered under this chapter, the department
3-26 [commission] shall notify each examinee of the results of the
3-27 examination.
3-28 (f) The department [commission] shall maintain files of
3-29 examination papers. A person, at any time within six months of the
3-30 date that the person is notified of the results of an examination,
3-31 is entitled to inspect the person's examination paper during normal
3-32 business hours at the department's [commission's] offices for the
3-33 purpose of challenging the propriety of the questions, the method
3-34 of grading, and the accuracy of grading. If requested in writing
3-35 by a person who fails the licensing examination, the department
3-36 [commission] shall furnish the person with an analysis of the
3-37 person's performance on the examination.
3-38 SECTION 6. Sections 32.008 and 32.009, Water Code, are
3-39 amended to read as follows:
3-40 Sec. 32.008. CONTINUING EDUCATION. The department
3-41 [commission], with the participation of the council, may recognize,
3-42 prepare, or offer continuing education programs for licensees.
3-43 Participation in continuing education programs is voluntary unless
3-44 the council determines that the department should require
3-45 participation.
3-46 Sec. 32.009. RULES AND REGULATIONS. (a) The department,
3-47 with advice and comment from the Texas Natural Resource
3-48 Conservation Commission, [commission] shall adopt rules as
3-49 necessary to enforce this chapter, including rules governing
3-50 applications for a license, qualifications of applicants, standards
3-51 of conduct for licensed drillers including marking of well drilling
3-52 rigs and equipment, and rules governing procedure and practice
3-53 before the department [commission].
3-54 (b) The department [commission] may enforce by injunction or
3-55 other appropriate remedy in courts of competent jurisdiction any
3-56 rule, decisions, determinations, or orders adopted or entered by it
3-57 that do not conflict with a statute. The attorney general shall
3-58 represent the department [commission] on request.
3-59 (c) The department [commission] shall adopt rules in
3-60 accordance with Chapter 2001, Government Code.
3-61 (d) Notwithstanding Subsection (a) [of this section], the
3-62 department [commission] may not adopt rules under this chapter:
3-63 (1) regulating the installation or repair of well
3-64 pumps and equipment by a person who owns or is in control of
3-65 property or the person's employee or a person not hired or
3-66 compensated acting on the person's behalf on the property the
3-67 person owns or controls for the person's own use; or
3-68 (2) requiring a person who owns or is in control of
3-69 property or possesses a well to complete, repair, or retrofit the
4-1 well to any standard other than a standard in effect at the time
4-2 the well was originally completed unless the well is found to be a
4-3 threat to public health and safety or to water quality.
4-4 SECTION 7. Subsections (a), (c), and (d), Section 32.010,
4-5 Water Code, are amended to read as follows:
4-6 (a) The department [commission] may, after notice and
4-7 hearing, revoke or suspend a license, place on probation a person
4-8 whose license has been suspended, or reprimand a licensee for a
4-9 violation of this chapter or a rule adopted under this chapter.
4-10 (c) The department [commission], before revoking a license,
4-11 placing a licensee on probation, or reprimanding a licensee, shall
4-12 notify the licensee in writing of the alleged violation and provide
4-13 the licensee with an opportunity for a hearing. The notice shall
4-14 be given not later than the 10th day before the date set for the
4-15 hearing. The notice shall be made by registered mail to the last
4-16 known business address of the licensee. The licensee, each person
4-17 complaining against the licensee, and any other witness whose
4-18 testimony is relied on to substantiate the charges made may be
4-19 present at the hearing. The licensee may present relevant oral or
4-20 written evidence.
4-21 (d) Each decision and order in a disciplinary hearing
4-22 rendered by the department [commission] must be made in writing and
4-23 must set forth briefly the findings of fact and the department's
4-24 [commission's] conclusions. Parties to the proceedings shall be
4-25 notified of the decision or order not later than the 30th day after
4-26 the conclusion of the hearing.
4-27 SECTION 8. Subsections (a), (b), (d), (e), (f), (g), (i),
4-28 and (j), Section 32.011, Water Code, are amended to read as
4-29 follows:
4-30 (a) If a person fails to comply with a provision of this
4-31 chapter or a rule adopted by the department [commission] under this
4-32 chapter, the person may be assessed, in addition to other
4-33 penalties, an administrative penalty set by the department
4-34 [commission] in an amount not to exceed $2,500 for each violation.
4-35 (b) In determining the amount of the penalty, the department
4-36 [commission] shall consider the person's history of previous
4-37 violations and the seriousness of the failure to comply.
4-38 (d) If a public hearing is held, the department [commission]
4-39 shall make findings of fact and issue a written decision as to the
4-40 occurrence of the violation and, when appropriate, an order that a
4-41 penalty be paid.
4-42 (e) If the person charged with a violation does not appear
4-43 for the hearing, the department [commission] may assess a penalty
4-44 and issue an order that the penalty be paid after the department
4-45 [commission] has determined that a violation occurred.
4-46 (f) Not later than the 30th day after the date on which an
4-47 order is issued, the department [commission] shall inform a person
4-48 ordered to pay a penalty under this section of the amount of the
4-49 penalty.
4-50 (g) Not later than the 30th day after the date the order
4-51 becomes final under Subchapter F, Chapter 2001, Government Code,
4-52 the person charged with the penalty shall:
4-53 (1) pay the penalty in full;
4-54 (2) forward the amount to the department [commission]
4-55 for placement in an escrow account pending judicial review of the
4-56 matter; or
4-57 (3) post with the department [commission] a
4-58 supersedeas bond for the amount of the penalty until judicial
4-59 review is final.
4-60 (i) If a court determines that a violation has not occurred
4-61 or that the amount of the penalty should be reduced or not
4-62 assessed, the department [commission] shall remit the appropriate
4-63 amount to the person with interest or execute release of the bond.
4-64 (j) An administrative penalty owed under this section may be
4-65 recovered in a civil action brought by the attorney general at the
4-66 request of the department [commission].
4-67 SECTION 9. Sections 32.012 through 32.016, Water Code, are
4-68 amended to read as follows:
4-69 Sec. 32.012. APPEAL OF DEPARTMENT [COMMISSION] ACTION.
5-1 (a) A person affected by a ruling, order, decision, or other act
5-2 of the department [commission] may appeal by filing a petition in a
5-3 district court in Travis County.
5-4 (b) A petition must be filed not later than the 30th day
5-5 after the date of the department's [commission's] action or, in the
5-6 case of a ruling, order, or decision, not later than the 30th day
5-7 after its effective date.
5-8 (c) Service of citation on the department [commission] shall
5-9 be accomplished not later than the 30th day after the date the
5-10 petition was filed. Citation may be served on the executive
5-11 director.
5-12 (d) The plaintiff must pursue the action with reasonable
5-13 diligence.
5-14 (e) The substantial evidence rule applies in the judicial
5-15 review of any department [commission] action, ruling, order, or
5-16 decision. An administrative or executive action taken before the
5-17 filing of the suit continues in force and effect until the rights
5-18 of the parties are determined by the court.
5-19 Sec. 32.013. COMPLAINTS. (a) The department [commission]
5-20 shall prepare information of consumer interest describing the
5-21 procedures by which consumer complaints under this chapter are
5-22 filed with and resolved by it. The department [commission] shall
5-23 make the information available to the public and appropriate state
5-24 agencies.
5-25 (b) If a written complaint under this chapter is filed with
5-26 the department [commission] relating to a licensee, the department
5-27 [commission], at least quarterly, shall notify the parties to the
5-28 complaint of the status of the complaint until final disposition
5-29 unless the notice would jeopardize an undercover investigation.
5-30 The department [commission] shall maintain a file about each
5-31 complaint filed against a licensee.
5-32 Sec. 32.014. DISPOSITION OF REVENUES. (a) The financial
5-33 transactions of the department [commission] in connection with the
5-34 administration of this chapter are subject to audit by the state
5-35 auditor in accordance with Chapter 321, Government Code.
5-36 (b) All money collected by the department [commission] under
5-37 this chapter shall be deposited to the credit of the water well
5-38 drillers fund account in the general revenue fund and may be used
5-39 only to administer this chapter. The department [commission] shall
5-40 allocate not more than 20 percent of the money in the account
5-41 [water well drillers fund] to cover administrative costs of the
5-42 department [commission].
5-43 Sec. 32.015. CIVIL PENALTY. A person who fails to comply
5-44 with this chapter or a rule adopted by the department [commission]
5-45 under this chapter is subject to a civil penalty of not less than
5-46 $200 or more than $1,000 for each day of noncompliance or each act
5-47 of noncompliance as determined by the court. The department
5-48 [commission] may also seek injunctive relief for a violation of
5-49 this chapter. The action may be brought by the department
5-50 [commission] in any court of competent jurisdiction in Travis
5-51 County or the county in which the offending activity occurred or in
5-52 which the person resides. At the request of the executive
5-53 director, the attorney general shall bring an action in the name of
5-54 the state for injunctive relief, to recover the civil penalty, or
5-55 for both the injunctive relief and civil penalty, as authorized by
5-56 this section. A party to an action may appeal from a final
5-57 judgment as in other civil cases. The obtaining of a license under
5-58 this chapter by a person does not relieve the person from liability
5-59 under law.
5-60 Sec. 32.016. MARKING RIGS WITH IDENTIFICATION NUMBER. A
5-61 driller shall legibly mark all rigs used by the driller or the
5-62 driller's employees in the well drilling business with the license
5-63 number that appears on the driller's license. The department
5-64 [commission] shall adopt rules specifying the method and manner for
5-65 marking the rigs.
5-66 SECTION 10. Subsections (a), (b), (c), and (e), Section
5-67 32.017, Water Code, are amended to read as follows:
5-68 (a) A licensed driller shall complete a well under standards
5-69 and procedures adopted by the department [commission].
6-1 (b) A licensed driller shall notify the department
6-2 [commission] and the landowner or person having a well drilled when
6-3 the driller encounters water injurious to vegetation, land, or
6-4 other water, and the well must be plugged, repaired, or properly
6-5 completed in order to avoid injury or pollution. The driller shall
6-6 assure that the well is plugged, repaired, or properly completed
6-7 under standards and procedures adopted by the department
6-8 [commission].
6-9 (c) Not later than the 180th day after the date on which a
6-10 landowner or other person who possesses an abandoned or
6-11 deteriorated well learns of its condition, the landowner or other
6-12 person who possesses an abandoned or deteriorated well shall have
6-13 the well plugged or capped under standards and procedures adopted
6-14 by the department [commission]. A licensed driller who knows of an
6-15 abandoned or deteriorated well shall notify the landowner or person
6-16 possessing the well that the well must be plugged or capped in
6-17 order to avoid injury or pollution.
6-18 (e) A licensed driller, licensed pump installer, or well
6-19 owner who plugs an abandoned or deteriorated well shall submit a
6-20 plugging report to the executive director not later than the 30th
6-21 day after the date the well is plugged. The department
6-22 [commission] shall furnish plugging report forms on request.
6-23 SECTION 11. Section 32.019, Water Code, is amended to read
6-24 as follows:
6-25 Sec. 32.019. TRANSFER OF FUNCTIONS. If the functions of the
6-26 department [commission] necessary to the proper implementation of
6-27 its duties under this chapter are transferred to another agency,
6-28 the powers and duties given in this chapter to the department
6-29 [commission] shall be transferred to the other agency.
6-30 SECTION 12. Subdivisions (2) and (3), Section 33.001, Water
6-31 Code, are amended to read as follows:
6-32 (2) "Department" ["Commission"] means the Texas
6-33 Department of Licensing and Regulation [Natural Resource
6-34 Conservation Commission].
6-35 (3) "Executive director" means the executive director
6-36 of the department [Texas Natural Resource Conservation Commission].
6-37 SECTION 13. Subsections (a) through (e), (g), and (h),
6-38 Section 33.002, Water Code, are amended to read as follows:
6-39 (a) A person may not act as or offer to perform the services
6-40 of an installer unless the person holds a license issued by the
6-41 department [commission] under rules adopted under this chapter.
6-42 (b) An application for a license must contain [the
6-43 applicant's]:
6-44 (1) the applicant's name;
6-45 (2) the applicant's business address;
6-46 (3) the applicant's permanent mailing address; and
6-47 (4) any other information required by the department
6-48 [commission].
6-49 (c) At the time of application, an applicant shall pay to
6-50 the department [commission] a nonrefundable examination fee. A
6-51 person qualifying for a license shall pay to the department
6-52 [commission] the license fee set by the department [commission].
6-53 (d) Except as provided by Section 33.003 [of this code], a
6-54 license issued under this chapter expires on August 31 of each
6-55 year. On or before that day, each licensee shall pay an annual fee
6-56 to the department [commission] to renew the license. The
6-57 department [commission] shall notify each licensee in writing of
6-58 the impending license expiration not later than August 1 of each
6-59 year. If a person's license has been expired for 90 days or less,
6-60 the person may renew the license by paying to the department
6-61 [commission] the required renewal fee and a late fee that is equal
6-62 to one-half of the examination fee for the license. If a person's
6-63 license has been expired for more than 90 days but less than two
6-64 years, the person may renew the license by paying to the department
6-65 [commission] all unpaid renewal fees and a late fee that is equal
6-66 to the examination fee for the license. If a person's license has
6-67 been expired two years or more, the person may not renew the
6-68 license. The person may obtain a new license by submitting to
6-69 reexamination and complying with the requirements for obtaining an
7-1 original license.
7-2 (e) The department [commission] shall maintain a current
7-3 register of licensees.
7-4 (g) The department [commission] shall issue a duplicate
7-5 license to replace a lost or destroyed license on proper
7-6 application and payment of a fee.
7-7 (h) The department [commission] by rule shall set the fees
7-8 imposed under this chapter in amounts that are reasonable and
7-9 necessary to cover the costs of administering this chapter.
7-10 SECTION 14. Sections 33.003 through 33.008, Water Code, are
7-11 amended to read as follows:
7-12 Sec. 33.003. STAGGERED RENEWAL OF LICENSES. The department
7-13 [commission] by rule may adopt a system under which licenses expire
7-14 on various dates during the year. For the year in which the
7-15 license expiration date is changed, license renewal fees payable on
7-16 August 31 shall be prorated. On renewal of the license on the new
7-17 expiration date, the total license renewal fee is payable.
7-18 Sec. 33.004. PERSONS LICENSED IN OTHER STATES. The
7-19 department [commission] may adopt rules allowing waiver of a
7-20 license requirement for an applicant with a valid license from
7-21 another state that has license requirements substantially
7-22 equivalent to those of this state.
7-23 Sec. 33.005. EXAMINATIONS. (a) The department
7-24 [commission], with the advice of the council, shall prepare
7-25 licensing examinations, pass on the qualifications of license
7-26 applicants, and issue licenses to those who qualify.
7-27 (b) The department [commission] shall design written
7-28 examinations in such a manner as to disqualify a person lacking the
7-29 knowledge of pump installation to the extent that the performance
7-30 by the person of pump installation would create a serious risk of
7-31 polluting fresh water.
7-32 (c) The department [commission] shall offer examinations
7-33 prepared by it at least once a month and more frequently if more
7-34 than 10 persons petition it for an additional examination. The
7-35 examination shall be administered so that a person grading the
7-36 examination does not know whose paper is being graded. The
7-37 department [commission] shall maintain files of examination papers.
7-38 Sec. 33.006. CONTINUING EDUCATION. The department
7-39 [commission], with the participation of the council, may recognize,
7-40 prepare, or offer continuing education programs for licensees.
7-41 Participation in continuing education programs is voluntary unless
7-42 the council determines that the department should require
7-43 participation.
7-44 Sec. 33.007. RULES. (a) The department [commission] shall
7-45 adopt rules as necessary to enforce this chapter.
7-46 (b) The department [commission] may enforce by injunction or
7-47 other appropriate remedy in courts of competent jurisdiction any
7-48 rule, decisions, determinations, or orders adopted or entered by it
7-49 that do not conflict with a statute. The attorney general shall
7-50 represent the department [commission] on request.
7-51 (c) The department [commission] shall adopt rules in
7-52 accordance with Chapter 2001, Government Code.
7-53 (d) Notwithstanding Subsection (a) [of this section], the
7-54 department [commission] may not adopt rules under this chapter:
7-55 (1) regulating the installation or repair of well
7-56 pumps and equipment by a person who owns or is in control of
7-57 property or the person's employee or a person not hired or
7-58 compensated acting on the person's behalf on the property the
7-59 person owns or controls for the person's own use; or
7-60 (2) requiring a person who owns or is in control of
7-61 property or possesses a well to complete, repair, or retrofit the
7-62 well to any standard other than a standard in effect at the time
7-63 the well was originally completed unless the well is found to be a
7-64 threat to public health and safety or to water quality.
7-65 Sec. 33.008. REVOCATION OF LICENSES. (a) The department
7-66 [commission] may revoke a license, place a licensee on probation,
7-67 or reprimand a licensee for a violation of this chapter or a rule
7-68 adopted under this chapter.
7-69 (b) The department [commission], before revoking a license,
8-1 placing a licensee on probation, or reprimanding a licensee, shall
8-2 notify the licensee in writing of the alleged violation and provide
8-3 the licensee with an opportunity for a hearing. The notice shall
8-4 be given not later than the 10th day before the date set for the
8-5 hearing. The notice shall be made by registered mail to the last
8-6 known business address of the licensee. The licensee, each person
8-7 complaining against the licensee, and any other witness whose
8-8 testimony is relied on to substantiate the charges made may be
8-9 present at the hearing. The licensee may present relevant oral or
8-10 written evidence.
8-11 (c) Each decision and order in a disciplinary hearing
8-12 rendered by the department [commission] must be made in writing and
8-13 must set forth briefly the findings of fact and the department's
8-14 [commission's] conclusions. Parties to the proceedings shall be
8-15 notified of the decision or order not later than the 30th day after
8-16 the conclusion of the hearing.
8-17 SECTION 15. Subections (a), (b), (d), (e), (f), (g), (i),
8-18 and (j), Section 33.009, Water Code, are amended to read as
8-19 follows:
8-20 (a) If a person fails to comply with a provision of this
8-21 chapter or a rule adopted by the department [commission] under this
8-22 chapter, the person may be assessed, in addition to other
8-23 penalties, an administrative penalty set by the department
8-24 [commission] in an amount not to exceed $2,500 for each violation.
8-25 (b) In determining the amount of the penalty, the department
8-26 [commission] shall consider the person's history of previous
8-27 violations and the seriousness of the failure to comply.
8-28 (d) If a public hearing is held, the department [commission]
8-29 shall make findings of fact and issue a written decision as to the
8-30 occurrence of the violation and, when appropriate, an order that a
8-31 penalty be paid.
8-32 (e) If the person charged with a violation does not appear
8-33 for the hearing, the department [commission] may assess a penalty
8-34 and issue an order that the penalty be paid after the department
8-35 [commission] has determined that a violation occurred.
8-36 (f) Not later than the 30th day after the date on which an
8-37 order is issued, the department [commission] shall inform a person
8-38 ordered to pay a penalty under this section of the amount of the
8-39 penalty.
8-40 (g) Not later than the 30th day after the date the order
8-41 becomes final under Subchapter F, Chapter 2001, Government Code,
8-42 the person charged with the penalty shall:
8-43 (1) pay the penalty in full;
8-44 (2) forward the amount to the department [commission]
8-45 for placement in an escrow account pending judicial review of the
8-46 matter; or
8-47 (3) post with the department [commission] a
8-48 supersedeas bond for the amount of the penalty until judicial
8-49 review is final.
8-50 (i) If a court determines that a violation has not occurred
8-51 or that the amount of the penalty should be reduced or not
8-52 assessed, the department [commission] shall remit the appropriate
8-53 amount to the person with interest or execute release of the bond.
8-54 (j) An administrative penalty owed under this section may be
8-55 recovered in a civil action brought by the attorney general at the
8-56 request of the department [commission].
8-57 SECTION 16. Sections 33.010 through 33.013, Water Code, are
8-58 amended to read as follows:
8-59 Sec. 33.010. APPEAL OF DEPARTMENT [COMMISSION] ACTION.
8-60 (a) A person affected by a ruling, order, decision, or other act
8-61 of the department [commission] may appeal by filing a petition in a
8-62 district court in Travis County.
8-63 (b) A petition must be filed not later than the 30th day
8-64 after the date of the department's [commission's] action or, in the
8-65 case of a ruling, order, or decision, not later than the 30th day
8-66 after its effective date.
8-67 (c) Service of citation on the department [commission] shall
8-68 be accomplished not later than the 30th day after the date the
8-69 petition was filed. Citation may be served on the executive
9-1 director.
9-2 (d) The plaintiff must pursue the action with reasonable
9-3 diligence.
9-4 (e) The substantial evidence rule applies in the judicial
9-5 review of any department [commission] action, ruling, order, or
9-6 decision. An administrative or executive action taken before the
9-7 filing of the suit continues in force and effect until the rights
9-8 of the parties are determined by the court.
9-9 Sec. 33.011. COMPLAINTS. (a) The department [commission]
9-10 shall prepare information of consumer interest describing the
9-11 procedures by which consumer complaints under this chapter are
9-12 filed with and resolved by it. The department [commission] shall
9-13 make the information available to the public and appropriate state
9-14 agencies. The council may hear consumer complaints and make
9-15 recommendations to the department as to their disposition.
9-16 (b) If a written complaint under this chapter is filed with
9-17 the department [commission] relating to a licensee, the department
9-18 [commission], at least quarterly, shall notify the parties to the
9-19 complaint of the status of the complaint until final disposition
9-20 unless the notice would jeopardize an undercover investigation.
9-21 The department [commission] shall maintain a file about each
9-22 complaint filed against a licensee.
9-23 Sec. 33.012. DISPOSITION OF REVENUES. (a) The financial
9-24 transactions of the department [commission] in connection with the
9-25 administration of this chapter are subject to audit by the state
9-26 auditor in accordance with Chapter 321, Government Code.
9-27 (b) All money collected by the department [commission] under
9-28 this chapter shall be deposited to the credit of the water well
9-29 drillers fund account in the general revenue fund and may be used
9-30 only to administer this chapter. The department shall allocate not
9-31 more than 20 percent of the money in the account to cover
9-32 administrative costs of the department.
9-33 Sec. 33.013. CIVIL PENALTY. A person who fails to comply
9-34 with this chapter or a rule adopted by the department [commission]
9-35 under this chapter is subject to a civil penalty of not less than
9-36 $200 or more than $1,000 for each day of noncompliance or each act
9-37 of noncompliance as determined by the court. The department
9-38 [commission] may also seek injunctive relief for a violation of
9-39 this chapter. The action may be brought by the department
9-40 [commission] in any court of competent jurisdiction in Travis
9-41 County in which the offending activity occurred or in which the
9-42 person resides. At the request of the executive director, the
9-43 attorney general shall bring an action in the name of the state for
9-44 injunctive relief, to recover the civil penalty, or for both the
9-45 injunctive relief and civil penalty, as authorized by this section.
9-46 A party to an action may appeal from a final judgment as in other
9-47 civil cases. The obtaining of a license under this chapter by a
9-48 person does not relieve the person from liability under law.
9-49 SECTION 17. Subsections (a) and (b), Section 33.014, Water
9-50 Code, are amended to read as follows:
9-51 (a) Each installer licensed under this chapter shall install
9-52 or repair pumps under standards and procedures adopted by the
9-53 department [commission] with the advice of the council.
9-54 (b) Each licensed installer shall notify the department
9-55 [commission] and the landowner or person having a pump installed or
9-56 repaired when the installer encounters water injurious to
9-57 vegetation, land, or other water, and the installer shall repair or
9-58 properly complete the well in order to avoid injury or pollution.
9-59 The installer shall ensure that the well is repaired or properly
9-60 completed under standards and procedures adopted by the department
9-61 [commission].
9-62 SECTION 18. Section 33.015, Water Code, is amended to read
9-63 as follows:
9-64 Sec. 33.015. TRANSFER OF FUNCTIONS. If the functions of the
9-65 department [commission] necessary to the proper implementation of
9-66 its duties under this chapter are transferred to any other agency,
9-67 the powers and duties given to the department [commission] in this
9-68 chapter shall be transferred to the other agency.
9-69 SECTION 19. (a) This Act takes effect September 1, 1997.
10-1 (b) On the effective date of this Act and except as
10-2 otherwise provided by this Act, all powers and duties of the Texas
10-3 Natural Resource Conservation Commission under Chapters 32 and 33,
10-4 Water Code, and all obligations, rights, contracts, records, real
10-5 or personal property, and personnel of the commission relating to
10-6 those powers and duties are transferred to the Texas Department of
10-7 Licensing and Regulation.
10-8 (c) An obligation payable by the Texas Natural Resource
10-9 Conservation Commission from the water well drillers fund account
10-10 established by Sections 32.014 and 33.012, Water Code, that is
10-11 transferred by this Act to the Texas Department of Licensing and
10-12 Regulation may be paid under applicable law by the department from
10-13 the unexpended balance of an appropriation from the fund made to
10-14 the commission for the state fiscal biennium ending August 31,
10-15 1997.
10-16 (d) An appropriation to the Texas Natural Resource
10-17 Conservation Commission for the state fiscal biennium beginning
10-18 September 1, 1997, for the performance of a power or duty under
10-19 Chapter 32 or 33, Water Code, transferred under this Act to the
10-20 Texas Department of Licensing and Regulation is transferred to the
10-21 department on that date.
10-22 SECTION 20. The importance of this legislation and the
10-23 crowded condition of the calendars in both houses create an
10-24 emergency and an imperative public necessity that the
10-25 constitutional rule requiring bills to be read on three several
10-26 days in each house be suspended, and this rule is hereby suspended.
10-27 * * * * *