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                                 * * * * *