By Lewis of Orange H.B. No. 2808
76R8756 MI-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the development and management of water resources.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 5.504(a), Water Code, is amended to read
1-5 as follows:
1-6 (a) If the commission, the executive director, or the
1-7 executive director's representative issues an emergency order under
1-8 this subchapter without a hearing, the order shall set a time and
1-9 place for a hearing to affirm, modify, or set aside the emergency
1-10 order to be held before the commission or its designee as soon as
1-11 practicable after the order is issued. If the emergency order is
1-12 issued under Section 5.517 or 5.518, the order shall set a time for
1-13 the hearing not later than the 20th day after the date the
1-14 emergency order is issued.
1-15 SECTION 2. Subchapter L, Chapter 5, Water Code, is amended
1-16 by adding Sections 5.517, 5.518, 5.519, and 5.520 to read as
1-17 follows:
1-18 Sec. 5.517. EMERGENCY PERMIT TO DIVERT AND USE WATER;
1-19 AMENDMENT TO WATER RIGHT. (a) Except as provided by Section 5.506
1-20 and after notification to the governor, the commission by emergency
1-21 order may issue a permit to divert and use water or amend an
1-22 existing permit, certified filing, or certificate of adjudication
1-23 for an initial period not to exceed 120 days if the commission
1-24 finds that:
2-1 (1) emergency conditions exist that present an
2-2 imminent threat to the public health, safety, and welfare or the
2-3 environment and that override the necessity to comply with
2-4 established statutory procedures; and
2-5 (2) there is no feasible practicable alternative to
2-6 the emergency authorization. The emergency authorization may be
2-7 renewed once for a period not to exceed 60 days.
2-8 (b) The executive director may issue an emergency order if
2-9 an imminent threat to the public health, safety, and welfare or the
2-10 environment exists that requires emergency action before the
2-11 commission can take action under Subsection (a) and there is no
2-12 feasible alternative. If the executive director issues an
2-13 emergency order under this subsection, the commission shall hold a
2-14 hearing as provided for in Section 5.504 as soon as practicable but
2-15 not later than 10 days after issuance of the order to affirm,
2-16 modify, or set aside the order. The person desiring the emergency
2-17 order must comply with Section 5.502 before the executive director
2-18 may act on the request for emergency action.
2-19 (c) The notice requirements of Section 11.132 relating to
2-20 the time for notice, newspaper notice, and method of giving a
2-21 person notice do not apply to a hearing held on an application for
2-22 an emergency order under this section. The commission shall give
2-23 the general notice of the hearing that the commission considers
2-24 practicable under the circumstances.
2-25 (d) The commission may adopt rules and impose fees necessary
2-26 to carry out the provisions of this section.
2-27 (e) An emergency order under this section does not vest in
3-1 the grantee any right to the diversion, impoundment, or use of
3-2 water and expires by its terms.
3-3 Sec. 5.518. EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF
3-4 WATER RIGHT. (a) The commission by emergency order may grant the
3-5 temporary transfer and use of all or part of a surface water right
3-6 for other than domestic or municipal use to a retail or wholesale
3-7 water supplier for public health and safety purposes.
3-8 (b) The commission may direct the applicant to timely pay
3-9 the amounts for which the applicant may be potentially liable under
3-10 this section and to fully indemnify and hold harmless the state,
3-11 the executive director, and the commission from any and all
3-12 liability for the order sought. The commission may order bond or
3-13 other surety in a form acceptable to the commission as a condition
3-14 for an emergency order under this section. The commission may not
3-15 grant an emergency authorization under this section that would
3-16 cause a violation of a federal regulation.
3-17 (c) A person granted an emergency order under this section
3-18 is liable to the owner from whom the use is transferred for the
3-19 fair market value of the water transferred and for any damages
3-20 proximately caused by the transfer of use. If, within 60 days of
3-21 the termination of the order, the parties do not agree on the
3-22 amount due, or if full payment is not made, either party may file a
3-23 complaint with the commission to determine the amount due.
3-24 (d) The commission by rule shall establish a dispute
3-25 resolution procedure for a complaint filed under this section.
3-26 After exhausting all administrative remedies under this section, an
3-27 owner from whom the use is transferred may file suit to recover or
4-1 determine the amount due in a district court in the county where
4-2 the owner resides or has its headquarters. The prevailing party in
4-3 a suit filed under this subsection is entitled to recover court
4-4 costs and reasonable attorney's fees.
4-5 Sec. 5.519. EMERGENCY WORKS SAFETY ORDER. The commission
4-6 may issue a mandatory or prohibitory emergency order directing the
4-7 owner of a dam, levee, or other water-storage or flood-control work
4-8 to repair, modify, maintain, dewater, or remove a work if the
4-9 commission finds that:
4-10 (1) the existing condition of the work is causing or
4-11 will cause extensive or severe property damage or economic loss to
4-12 others or is posing an immediate and serious threat to human life
4-13 or health; and
4-14 (2) other procedures available to the commission to
4-15 remedy or prevent the occurrence will result in unreasonable delay.
4-16 Sec. 5.520. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
4-17 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
4-18 The commission may issue an emergency order appointing a willing
4-19 person to temporarily manage and operate a utility under Section
4-20 7.403. Notice of the action is adequate if the notice is mailed or
4-21 hand delivered to the last known address of the utility's
4-22 headquarters.
4-23 SECTION 3. Section 7.004, Water Code, is amended to read as
4-24 follows:
4-25 Sec. 7.004. REMEDIES CUMULATIVE. The remedies under this
4-26 chapter are cumulative of all other remedies. Nothing in this
4-27 chapter affects the right of a private corporation, [or]
5-1 individual, or political subdivision that has a justiciable
5-2 interest to pursue any available common law remedy to enforce a
5-3 right, to abate a condition of pollution or other nuisance, to
5-4 recover damages to enforce a right, or to prevent or seek redress
5-5 or compensation for the violation of a right or otherwise redress
5-6 an injury.
5-7 SECTION 4. Subchapter B, Chapter 7, Water Code, is amended
5-8 by adding Section 7.034 to read as follows:
5-9 Sec. 7.034. ATTORNEY'S FEES; COSTS. A district court may
5-10 award the costs of litigation, including reasonable attorney's fees
5-11 and expert costs, to any political subdivision of the state,
5-12 private corporation, or individual that is a water right holder and
5-13 that prevails in a suit for injunctive relief to redress an
5-14 unauthorized diversion, impoundment, or use of surface water in
5-15 violation of Chapter 11 or a rule adopted under Chapter 11.
5-16 SECTION 5. Section 7.051(b), Water Code, is amended to read
5-17 as follows:
5-18 (b) Except as provided by this subsection, this [This]
5-19 subchapter does not apply to violations of Chapter [11,] 12, 13,
5-20 16, or 36 [of this code, or Chapter 341, Health and Safety Code].
5-21 This subchapter does apply to Section 16.236.
5-22 SECTION 6. Section 7.052, Water Code, is amended to read as
5-23 follows:
5-24 Sec. 7.052. MAXIMUM PENALTY. (a) The amount of the
5-25 penalty for a violation of Chapter 18, 32, 33, or 34 of this code
5-26 or Chapter 366, 371, or 372, Health and Safety Code, may not exceed
5-27 $2,500 a day for each violation.
6-1 (b) The amount of the penalty for a violation under Chapter
6-2 11 may not exceed $5,000 a day for each violation.
6-3 (c) The penalty for a violation of a rule or order adopted
6-4 under Section 16.236 may not exceed $1,000 a day for each
6-5 violation.
6-6 (d) The amount of the penalty for a violation under Chapter
6-7 341, Health and Safety Code, may not be less than $50 or more than
6-8 $1,000 for each violation.
6-9 (e) The amount of the penalty for all other violations
6-10 within the jurisdiction of the commission to enforce may not exceed
6-11 $10,000 a day for each violation.
6-12 (f) [(c)] Each day that a continuing violation occurs may be
6-13 considered a separate violation. The commission may authorize an
6-14 installment payment schedule for an administrative penalty
6-15 assessed under this subchapter, except for an administrative
6-16 penalty assessed under Section 7.057 or assessed after a hearing
6-17 under Section 7.058.
6-18 SECTION 7. Section 7.054, Water Code, is amended to read as
6-19 follows:
6-20 Sec. 7.054. REPORT OF VIOLATION. (a) If, after examination
6-21 of a possible violation and the facts surrounding that possible
6-22 violation, the executive director concludes that a violation has
6-23 occurred, the executive director may issue a preliminary report in
6-24 accordance with commission rules that includes recommendations
6-25 regarding any penalty or corrective action.
6-26 (b) A report regarding a possible violation under Chapter 11
6-27 must state the facts on which the conclusion was based and
7-1 recommend the amount of any penalty. The executive director shall
7-2 base the recommended amount of the proposed penalty on the factors
7-3 provided by Section 7.053 and shall analyze each factor for the
7-4 benefit of the commission.
7-5 SECTION 8. Section 7.069, Water Code, is amended to read as
7-6 follows:
7-7 Sec. 7.069. DISPOSITION OF PENALTY. (a) Except as provided
7-8 by Subsection (b), a [A] penalty collected under this subchapter
7-9 shall be deposited to the credit of the general revenue fund.
7-10 (b) A penalty collected under this subchapter from a public
7-11 utility shall be paid to the commission and deposited in the water
7-12 utility improvement account as provided by Section 341.0485, Health
7-13 and Safety Code.
7-14 SECTION 9. Subchapter B, Chapter 7, Water Code, is amended
7-15 by adding Section 7.076 to read as follows:
7-16 Sec. 7.076. COMPROMISE, MODIFICATION, OR REMISSION OF
7-17 CERTAIN PENALTIES. Notwithstanding any other provision to the
7-18 contrary, the commission may compromise, modify, or remit, with or
7-19 without condition, any penalty imposed under this subchapter for a
7-20 violation under Chapter 11.
7-21 SECTION 10. Section 7.102, Water Code, is amended to read as
7-22 follows:
7-23 Sec. 7.102. MAXIMUM PENALTY. (a) A person who causes,
7-24 suffers, allows, or permits a violation of a statute, rule, order,
7-25 or permit relating to Chapter 11, 18, 32, 33, or 34 of this code or
7-26 Chapter 366, 371, or 372, Health and Safety Code, shall be assessed
7-27 for each violation a civil penalty not less than $50 nor greater
8-1 than $5,000 for each day of each violation as the court or jury
8-2 considers proper.
8-3 (b) The amount of a penalty for a violation of a rule or
8-4 order issued by the commission under Section 12.052 may not exceed
8-5 $5,000.
8-6 (c) A person who causes, suffers, allows, or permits a
8-7 violation of a statute, rule, order, or permit relating to Chapter
8-8 13 shall be assessed for each violation a civil penalty not less
8-9 than $100 nor greater than $5,000 for each day of each violation as
8-10 the court or jury considers proper.
8-11 (d) A person who causes, suffers, allows, or permits a
8-12 violation of a statute, rule, order, or permit relating to any
8-13 other matter within the commission's jurisdiction to enforce,
8-14 other than violations of Chapter [11,] 12, [13,] 16, or 36 of this
8-15 code, or Chapter 341, Health and Safety Code, shall be assessed for
8-16 each violation a civil penalty not less than $50 nor greater than
8-17 $25,000 for each day of each violation as the court or jury
8-18 considers proper.
8-19 (e) Each day of a continuing violation is a separate
8-20 violation.
8-21 SECTION 11. Sections 7.105(a) and (c), Water Code, are
8-22 amended to read as follows:
8-23 (a) On the request of the executive director or the
8-24 commission, the attorney general shall institute a suit in the name
8-25 of the state for injunctive relief under Section 7.032, to recover
8-26 a civil penalty, or for both injunctive relief and a civil penalty.
8-27 The attorney general may initiate a suit for recovery of a penalty
9-1 under this section for a violation under Section 13.414.
9-2 (c) Except as provided by this subsection, the [The] suit
9-3 may be brought in Travis County, in the county in which the
9-4 defendant resides, or in the county in which the violation or
9-5 threat of violation occurs. A suit to recover a penalty for a
9-6 violation of a rule or order issued by the commission under Section
9-7 12.052 may be brought in Travis County.
9-8 SECTION 12. Subchapter D, Chapter 7, Water Code, is amended
9-9 by adding Section 7.1075 to read as follows:
9-10 Sec. 7.1075. DISPOSITION OF PENALTY COLLECTED FROM PUBLIC
9-11 UTILITY. A penalty collected under this subchapter from a public
9-12 utility shall be paid to the commission and deposited in the water
9-13 utility improvement account as provided by Section 341.0485, Health
9-14 and Safety Code.
9-15 SECTION 13. Subchapter D, Chapter 7, Water Code, is amended
9-16 by adding Section 7.112 to read as follows:
9-17 Sec. 7.112. LIMITATION ON SUIT FOR VIOLATION OF SECTION
9-18 11.081. An action to collect the penalty provided by Section 7.102
9-19 for a violation of Section 11.081 must be brought within two years
9-20 from the date of the alleged violation.
9-21 SECTION 14. Section 7.351, Water Code, is amended to read as
9-22 follows:
9-23 Sec. 7.351. CIVIL SUITS. If it appears that a violation or
9-24 threat of violation of Chapter 16, 26, 28, or 34 of this code or
9-25 Chapter 341, 361, 371, 372, or 382, Health and Safety Code, or a
9-26 provision of Chapter 401, Health and Safety Code, under the
9-27 commission's jurisdiction or a rule adopted or an order or a permit
10-1 issued under those chapters or provisions has occurred or is
10-2 occurring in the jurisdiction of a local government, the local
10-3 government or, in the case of a violation of Chapter 401, Health
10-4 and Safety Code, a person affected as defined in that chapter, may
10-5 institute a civil suit under Subchapter D in the same manner as the
10-6 commission in a district court by its own attorney for the
10-7 injunctive relief or civil penalty, or both, as authorized by this
10-8 chapter against the person who committed, is committing, or is
10-9 threatening to commit the violation.
10-10 SECTION 15. Section 11.0843, Water Code, is transferred to
10-11 Subchapter C, Chapter 7, Water Code, renumbered as Section 7.077,
10-12 and amended to read as follows:
10-13 Sec. 7.077 [11.0843]. FIELD CITATION. (a) Upon witnessing
10-14 a violation of Chapter 11 [this chapter] or a rule or order or a
10-15 water right issued under Chapter 11 [this chapter], a watermaster
10-16 or the watermaster's deputy, as defined by commission rule, may
10-17 issue the alleged violator a field citation alleging that a
10-18 violation has occurred and providing the alleged violator the
10-19 option of either:
10-20 (1) without admitting to or denying the alleged
10-21 violation, paying an administrative penalty in accordance with the
10-22 predetermined penalty amount established under Subsection (b) of
10-23 this section and taking remedial action as provided in the
10-24 citation; or
10-25 (2) requesting a hearing on the alleged violation in
10-26 accordance with Section 7.058 [11.0842] of this code.
10-27 (b) By rule the commission shall establish penalty amounts
11-1 corresponding to types of violations of Chapter 11 [this chapter]
11-2 or rules or orders adopted or water rights issued under Chapter 11
11-3 [this chapter].
11-4 [(c) A penalty collected under this section shall be
11-5 deposited in the state treasury to the credit of the general
11-6 revenue fund.]
11-7 SECTION 16. Section 11.138(a), Water Code, is amended to
11-8 read as follows:
11-9 (a) The commission may issue temporary permits for
11-10 beneficial purposes to the extent that they do not interfere with
11-11 or adversely affect prior appropriations or vested rights on the
11-12 stream from which water is to be diverted under such temporary
11-13 permit. The commission may, by appropriate order, authorize any
11-14 member of the commission to approve and issue temporary permits
11-15 without notice and hearing if it appears to such issuing party that
11-16 sufficient water is available at the proposed point of diversion to
11-17 satisfy the requirements of the temporary permit as well as all
11-18 existing rights. No temporary permit issued without notice and
11-19 hearing shall authorize more than 10 acre-feet of water, nor may it
11-20 be for a term in excess of one year. The commission by rule may
11-21 authorize the beneficial use, without a permit, of not more than 25
11-22 acre-feet of water, for a term not to exceed one year, if the
11-23 diversion of water will not affect existing water right holders and
11-24 the user of the water registers the use with the commission in the
11-25 manner required by the commission.
11-26 SECTION 17. Section 11.139, Water Code, is amended to read
11-27 as follows:
12-1 Sec. 11.139. EMERGENCY AUTHORIZATIONS. [(a)] Except as
12-2 provided by Section 11.148 of this code, the commission may grant
12-3 an emergency permit, order, or amendment to an existing permit,
12-4 certified filing, or certificate of adjudication under Subchapter
12-5 L, Chapter 5 [after notice to the governor for an initial period of
12-6 not more than 120 days if the commission finds that emergency
12-7 conditions exist which present an imminent threat to the public
12-8 health and safety and which override the necessity to comply with
12-9 established statutory procedures and there are no feasible
12-10 practicable alternatives to the emergency authorization. Such
12-11 emergency action may be renewed once for not longer than 60 days].
12-12 [(b) A person desiring to obtain an emergency authorization
12-13 under this section shall submit to the commission a sworn
12-14 application containing the following information:]
12-15 [(1) a description of the condition of emergency
12-16 justifying the granting of the emergency authorization;]
12-17 [(2) a statement setting forth facts which support the
12-18 findings required under this section;]
12-19 [(3) an estimate of the dates on which the proposed
12-20 authorization should begin and end;]
12-21 [(4) a description of the action sought and the
12-22 activity proposed to be allowed, mandated, or prohibited; and]
12-23 [(5) any other statements or information required by
12-24 the commission.]
12-25 [(c) If the commission finds the applicant's statement made
12-26 under Subsection (b) of this section to be correct, the commission
12-27 may grant emergency authorizations under this section without
13-1 notice and hearing or with such notice and hearing as the
13-2 commission considers practicable under the circumstances.]
13-3 [(d) If the commission grants an emergency authorization
13-4 under this section without a hearing, the authorization shall fix a
13-5 time and place for a hearing to be held before the commission. The
13-6 hearing shall be held as soon after the emergency authorization is
13-7 granted as is practicable but not later than 20 days after the
13-8 emergency authorization is granted.]
13-9 [(e) At the hearing, the commission shall affirm, modify, or
13-10 set aside the emergency authorization. Any hearing on an emergency
13-11 authorization shall be conducted in accordance with Chapter 2001,
13-12 Government Code, and rules of the commission.]
13-13 [(f) If an imminent threat to the public health and safety
13-14 exists which requires emergency action before the commission can
13-15 take action as provided by Subsections (a) through (c) of this
13-16 section and there are no feasible alternatives, the executive
13-17 director may grant an emergency authorization after notice to the
13-18 governor. If the executive director issues an emergency
13-19 authorization under this subsection, the commission shall hold a
13-20 hearing as provided for in Subsections (d) and (e) of this section.
13-21 The requirements of Subsection (b) of this section shall be
13-22 satisfied by the applicant before action is taken by the executive
13-23 director on the request for emergency authorization.]
13-24 [(g) The requirements of Section 11.132 of this code
13-25 relating to the time for notice, newspaper notice, and method of
13-26 giving a person notice do not apply to a hearing held on an
13-27 application for an emergency authorization under this section, but
14-1 such general notice of the hearing shall be given as the
14-2 commission, under Subsections (c) and (e) of this section,
14-3 considers practicable under the circumstances.]
14-4 [(h) The commission may grant an emergency authorization
14-5 under this section for the temporary transfer and use of all or
14-6 part of a permit, certified filing, or certificate of adjudication
14-7 for other than domestic or municipal use to a retail or wholesale
14-8 water supplier for public health and safety purposes. In addition
14-9 to the requirements contained in Subsection (b) of this section,
14-10 the commission may direct that the applicant will timely pay the
14-11 amounts for which the applicant may be potentially liable under
14-12 Subsection (j) of this section and to the extent authorized by law
14-13 will fully indemnify and hold harmless the state, the executive
14-14 director, and the commission from any and all liability for the
14-15 authorization sought. The commission may order bond or other
14-16 surety in a form acceptable to the commission as a condition for
14-17 such emergency authorization. The commission may not grant an
14-18 emergency authorization under this section which would cause a
14-19 violation of a federal regulation.]
14-20 [(i) In transferring the amount of water requested by the
14-21 applicant, the executive director or the commission shall allocate
14-22 the requested amount among two or more permits, certified filings,
14-23 or certificates of adjudication for other than domestic or
14-24 municipal use.]
14-25 [(j) The person granted an emergency authorization under
14-26 Subsection (h) of this section is liable to the owner and the
14-27 owner's agent or lessee from whom the use is transferred for the
15-1 fair market value of the water transferred as well as for any
15-2 damages caused by the transfer of use. If, within 60 days of the
15-3 termination of the authorization, the parties do not agree on the
15-4 amount due, or if full payment is not made, either party may file a
15-5 complaint with the commission to determine the amount due. The
15-6 commission may use dispute resolution procedures for a complaint
15-7 filed under this subsection. After exhausting all administrative
15-8 remedies under this subsection, an owner from whom the use is
15-9 transferred may file suit to recover or determine the amount due in
15-10 a district court in the county where the owner resides or has its
15-11 headquarters. The prevailing party in a suit filed under this
15-12 subsection is entitled to recover court costs and reasonable
15-13 attorney's fees.]
15-14 [(k) The commission may prescribe rules and adopt fees which
15-15 are necessary to carry out the provisions of this section.]
15-16 [(l) An emergency authorization does not vest in the grantee
15-17 any right to the diversion, impoundment, or use of water and shall
15-18 expire and be cancelled in accordance with its terms.]
15-19 SECTION 18. Section 11.173(b), Water Code, is amended to
15-20 read as follows:
15-21 (b) A permit, certified filing, or certificate of
15-22 adjudication or a portion of a permit, certified filing, or
15-23 certificate of adjudication is exempt from cancellation under
15-24 Subsection (a) of this section:
15-25 (1) to the extent of the owner's participation in the
15-26 Conservation Reserve Program authorized by the Food Security Act,
15-27 Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
16-1 or a similar governmental program; [or]
16-2 (2) if any portion of the water authorized to be used
16-3 pursuant to a permit, certified filing, or certificate of
16-4 adjudication has been used in accordance with a regional water plan
16-5 approved pursuant to Section 16.053 of this code;
16-6 (3) if the permit, certified filing, or certificate of
16-7 adjudication was obtained to meet demonstrated long-term public
16-8 water supply or electric generation needs as evidenced by a water
16-9 management plan developed by the holder and consistent with
16-10 projections of future water needs contained in the state water
16-11 plan; or
16-12 (4) if the permit, certified filing, or certificate of
16-13 adjudication was obtained as the result of the construction of a
16-14 reservoir funded, in whole or in part, by the holder of the
16-15 permit, certified filing, or certificate of adjudication as part of
16-16 the holder's long-term water planning.
16-17 SECTION 19. Section 11.177(b), Water Code, is amended to
16-18 read as follows:
16-19 (b) In determining what constitutes reasonable diligence or
16-20 a justified nonuse as used in Subsection (a)(2) of this section,
16-21 the commission shall give consideration to:
16-22 (1) whether sufficient water is available in the
16-23 source of supply to meet all or part of the appropriation during
16-24 the 10-year period of nonuse;
16-25 (2) whether the nonuse is justified by the holder's
16-26 participation in the federal Conservation Reserve Program or a
16-27 similar governmental program as provided by Section 11.173(b)(1) of
17-1 this code;
17-2 (3) [whether the permit, certified filing, or
17-3 certificate of adjudication was obtained to meet demonstrated
17-4 long-term public water supply or electric generation needs as
17-5 evidenced by a water management plan developed by the holder and
17-6 consistent with projections of future water needs contained in the
17-7 state water plan;]
17-8 [(4) whether the permit, certified filing, or
17-9 certificate of adjudication was obtained as the result of the
17-10 construction of a reservoir funded, in whole or in part, by the
17-11 holder of the permit, certified filing, or certificate of
17-12 adjudication as part of the holder's long-term water planning;]
17-13 [(5)] whether the existing or proposed authorized
17-14 purpose and place of use are consistent with an approved regional
17-15 water plan as provided by Section 16.053 of this code;
17-16 (4) [(6)] whether the permit, certified filing, or
17-17 certificate of adjudication has been deposited into the Texas Water
17-18 Bank as provided by Sections 15.7031 and 15.704 of this code or
17-19 whether it can be shown that the water right or water available
17-20 under the right is currently being made available for purchase
17-21 through private marketing efforts; or
17-22 (5) [(7)] whether the permit, certified filing, or
17-23 certificate of adjudication has been reserved to provide for
17-24 instream flows or bay and estuary inflows.
17-25 SECTION 20. Sections 12.052(c), (d), (e), and (f), Water
17-26 Code, are amended to read as follows:
17-27 (c) The [If the] owner of a dam that is required to be
18-1 constructed, reconstructed, repaired, or removed in order to comply
18-2 with the rules and orders promulgated under Subsection (a) of this
18-3 section may not wilfully fail [fails] or refuse [refuses] to comply
18-4 within the 30-day period following the date of the commission's
18-5 final, nonappealable order to do so and may not [or if a person]
18-6 wilfully fail [fails] to comply with any rule or other order issued
18-7 by the commission under this section within the 30-day period
18-8 following the effective date of the order[, he is liable to a
18-9 penalty of not more than $5,000 a day for each day he continues to
18-10 violate this section. The state may recover the penalty by suit
18-11 brought for that purpose in the district court of Travis County].
18-12 (d) The commission may issue an emergency works safety order
18-13 under Section 5.519 [If the commission determines that the existing
18-14 condition of the dam is creating or will cause extensive or severe
18-15 property damage or economic loss to others or is posing an
18-16 immediate and serious threat to human life or health and that other
18-17 procedures available to the commission to remedy or prevent the
18-18 occurrence of the situation will result in unreasonable delay, the
18-19 commission may issue an emergency order, either mandatory or
18-20 prohibitory in nature, directing the owner of a dam to repair,
18-21 modify, maintain, dewater, or remove the dam which the commission
18-22 determines is unsafe. The emergency order may be issued without
18-23 notice to the dam owner or with notice the commission considers
18-24 practicable under the circumstances. The notice does not have to
18-25 comply with Chapter 2001, Government Code].
18-26 (e) [If the commission issues an emergency order under
18-27 authority of this section without notice to the dam owner, the
19-1 commission shall fix a time and place for a hearing which shall be
19-2 held as soon as practicable to affirm, modify, or set aside the
19-3 emergency order. The notice does not have to comply with Chapter
19-4 2001, Government Code. If the nature of the commission's action
19-5 requires further proceedings, those proceedings shall be conducted
19-6 as appropriate under the Administrative Procedure and Texas
19-7 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
19-8 Statutes).]
19-9 [(f)] Nothing in this section or in rules or orders made by
19-10 the commission shall be construed to relieve an owner or operator
19-11 of a dam or reservoir of the legal duties, obligations, or
19-12 liabilities incident to ownership or operation.
19-13 SECTION 21. Section 13.411, Water Code, is transferred to
19-14 Subchapter B, Chapter 7, Water Code, renumbered as Section 7.0325,
19-15 and amended to read as follows:
19-16 Sec. 7.0325 [13.411]. ACTION TO ENJOIN OR REQUIRE
19-17 COMPLIANCE: RETAIL PUBLIC UTILITIES. (a) If the commission has
19-18 reason to believe that any retail public utility or any other
19-19 person or corporation is engaged in or is about to engage in any
19-20 act in violation of Chapter 13 [this chapter] or of any order or
19-21 rule of the commission entered or adopted under Chapter 13 [this
19-22 chapter] or that any retail public utility or any other person or
19-23 corporation is failing to comply with Chapter 13, [this chapter] or
19-24 with any rule or order, the attorney general on request of the
19-25 commission, in addition to any other remedies provided in this
19-26 chapter, shall bring an action in a court of competent jurisdiction
19-27 in the name of and on behalf of the commission against the retail
20-1 public utility or other person or corporation to enjoin the
20-2 commencement or continuation of any act or to require compliance
20-3 with Chapter 13 [this chapter] or the rule or order.
20-4 (b) If the executive director has reason to believe that the
20-5 failure of the owner or operator of a water utility to properly
20-6 operate, maintain, or provide adequate facilities presents an
20-7 imminent threat to human health or safety, the executive director
20-8 shall immediately:
20-9 (1) notify the utility's representative; and
20-10 (2) initiate enforcement action consistent with:
20-11 (A) this subchapter; and
20-12 (B) procedural rules adopted by the commission.
20-13 SECTION 22. Chapter 7, Water Code, is amended by adding
20-14 Subchapter I, and Sections 13.412, 13.4131, and 13.4132, Water
20-15 Code, are transferred to Subchapter I, Chapter 7, Water Code,
20-16 redesignated as Sections 7.401, 7.402, and 7.403, and amended to
20-17 read as follows:
20-18 SUBCHAPTER I. RECEIVERSHIP; SUPERVISION OF CERTAIN UTILITIES
20-19 Sec. 7.401 [13.412]. RECEIVERSHIP. (a) At the request of
20-20 the commission, the attorney general shall bring suit for the
20-21 appointment of a receiver to collect the assets and carry on the
20-22 business of a water or sewer utility that:
20-23 (1) has abandoned operation of its facilities;
20-24 (2) informs the commission that the owner is
20-25 abandoning the system;
20-26 (3) violates a final order of the commission; or
20-27 (4) allows any property owned or controlled by it to
21-1 be used in violation of a final order of the commission.
21-2 (b) The court shall appoint a receiver if an appointment is
21-3 necessary:
21-4 (1) to guarantee the collection of assessments, fees,
21-5 penalties, or interest;
21-6 (2) to guarantee continuous and adequate service to
21-7 the customers of the utility; or
21-8 (3) to prevent continued or repeated violation of the
21-9 final order.
21-10 (c) The receiver shall execute a bond to assure the proper
21-11 performance of the receiver's duties in an amount to be set by the
21-12 court.
21-13 (d) After appointment and execution of bond, the receiver
21-14 shall take possession of the assets of the utility specified by the
21-15 court. Until discharged by the court, the receiver shall perform
21-16 the duties that the court directs to preserve the assets and carry
21-17 on the business of the utility and shall strictly observe the final
21-18 order involved.
21-19 (e) On a showing of good cause by the utility, the court may
21-20 dissolve the receivership and order the assets and control of the
21-21 business returned to the utility.
21-22 (f) For purposes of this section and Section 7.403
21-23 [13.4132], abandonment may include but is not limited to:
21-24 (1) failure to pay a bill or obligation owed to a
21-25 retail public utility or to an electric or gas utility with the
21-26 result that the utility service provider has issued a notice of
21-27 discontinuance of necessary services;
22-1 (2) failure to provide appropriate water or wastewater
22-2 treatment so that a potential health hazard results;
22-3 (3) failure to adequately maintain facilities,
22-4 resulting in potential health hazards, extended outages, or
22-5 repeated service interruptions;
22-6 (4) failure to provide customers adequate notice of a
22-7 health hazard or potential health hazard;
22-8 (5) failure to secure an alternative available water
22-9 supply during an outage;
22-10 (6) displaying a pattern of hostility toward or
22-11 repeatedly failing to respond to the commission or the utility's
22-12 customers; and
22-13 (7) failure to provide the commission with adequate
22-14 information on how to contact the utility for normal business and
22-15 emergency purposes.
22-16 (g) Notwithstanding Section 64.021, Civil Practice and
22-17 Remedies Code, a receiver appointed under this section may seek
22-18 commission approval to acquire the water or sewer utility's
22-19 facilities and transfer the utility's certificate of convenience
22-20 and necessity. The receiver must apply in accordance with
22-21 Subchapter H, Chapter 13.
22-22 Sec. 7.402 [13.4131]. SUPERVISION OF CERTAIN UTILITIES. (a)
22-23 The commission, after providing to the utility notice and an
22-24 opportunity for a hearing, may place a utility under supervision
22-25 for gross or continuing mismanagement, gross or continuing
22-26 noncompliance with Chapter 13 [this chapter] or commission rules,
22-27 or noncompliance with commission orders.
23-1 (b) While supervising a utility, the commission may require
23-2 the utility to:
23-3 (1) meet [abide by] conditions and requirements
23-4 prescribed by the commission, including:
23-5 (A) [(1)] management requirements;
23-6 (B) [(2)] additional reporting requirements;
23-7 (C) [(3)] restrictions on hiring, salary or
23-8 benefit increases, capital investment, borrowing, stock issuance or
23-9 dividend declarations, and liquidation of assets; and
23-10 (D) [(4)] a requirement that the utility place
23-11 the utility's funds into an account in a financial institution
23-12 approved by the commission and use of those funds shall be
23-13 restricted to reasonable and necessary utility expenses; and
23-14 (2) [. (c) While supervising a utility, the
23-15 commission may require that the utility] obtain commission approval
23-16 before taking an [any] action [that may be] restricted under
23-17 Subdivision (1) [Subsection (b)] of this section.
23-18 (c) An [Any] action or transaction for which commission
23-19 approval is required by this section that [which] occurs without
23-20 commission approval may be voided by the commission.
23-21 Sec. 7.403 [13.4132]. OPERATION OF UTILITY THAT DISCONTINUES
23-22 OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER. (a) The
23-23 commission, after providing to the utility notice and an
23-24 opportunity to be heard by the commissioners at a commission
23-25 meeting, may authorize a willing person to temporarily manage and
23-26 operate a utility if the utility:
23-27 (1) has discontinued or abandoned operations or the
24-1 provision of services; or
24-2 (2) has been or is being referred to the attorney
24-3 general for the appointment of a receiver under Section 7.401
24-4 [13.412].
24-5 (b) The commission may appoint a person under this section
24-6 by emergency order under Section 5.507 and may authorize an
24-7 emergency rate increase by emergency order under Section 5.508[,
24-8 and notice of the action is adequate if the notice is mailed or
24-9 hand-delivered to the last known address of the utility's
24-10 headquarters].
24-11 (c) A person appointed under this section has the powers and
24-12 duties necessary to ensure the continued operation of the utility
24-13 and the provision of continuous and adequate services to customers,
24-14 including the power and duty to:
24-15 (1) read meters;
24-16 (2) bill for utility services;
24-17 (3) collect revenues;
24-18 (4) disburse funds;
24-19 (5) access all system components; and
24-20 (6) request rate increases.
24-21 (d) This section does not affect the authority of the
24-22 commission to pursue an enforcement claim against a utility or an
24-23 affiliated interest.
24-24 SECTION 23. Section 13.414, Water Code, is amended to read
24-25 as follows:
24-26 Sec. 13.414. VIOLATION BY [PENALTY AGAINST] RETAIL PUBLIC
24-27 UTILITY OR AFFILIATED INTEREST. A [(a) Any] retail public utility
25-1 or affiliated interest may not violate [that violates] this
25-2 chapter, fail [fails] to perform a duty imposed on it, or fail,
25-3 neglect, [fails, neglects,] or refuse [refuses] to obey an order,
25-4 rule, direction, or requirement of the commission or decree or
25-5 judgment of a court [is subject to a civil penalty of not less than
25-6 $100 nor more than $5,000 for each violation].
25-7 [(b) A retail public utility or affiliated interest commits
25-8 a separate violation each day it continues to violate Subsection
25-9 (a) of this section.]
25-10 [(c) The attorney general shall institute suit on his own
25-11 initiative or at the request of, in the name of, and on behalf of
25-12 the commission in a court of competent jurisdiction to recover the
25-13 penalty under this section.]
25-14 SECTION 24. Section 13.417, Water Code, is transferred to
25-15 Subchapter B, Chapter 7, Water Code, renumbered as Section 7.034,
25-16 Water Code, and amended to read as follows:
25-17 Sec. 7.034 [13.417]. CONTEMPT PROCEEDINGS IN UTILITY ACTION.
25-18 If any person or retail public utility fails to comply with any
25-19 lawful order of the commission issued under Chapter 13 or with any
25-20 subpoena or subpoena duces tecum issued in a proceeding under
25-21 Chapter 13 or if any witness refuses to testify about any matter on
25-22 which he may be lawfully interrogated in a proceeding under Chapter
25-23 13, the commission may apply to any court of competent jurisdiction
25-24 to compel obedience by proceedings for contempt.
25-25 SECTION 25. Chapter 35, Water Code, is amended by adding
25-26 Section 35.010 to read as follows:
25-27 Sec. 35.010. CREATION OF DISTRICTS ON PETITION AFTER
26-1 DESIGNATION OF PRIORITY GROUNDWATER MANAGEMENT AREA. The
26-2 commission may not consider the creation of a groundwater
26-3 conservation district in a designated priority groundwater
26-4 management area before the conclusion of the next regular session
26-5 of the Texas Legislature following the designation unless the local
26-6 landowners have initiated a petition process under Chapter 36 for
26-7 the creation of a groundwater conservation district with a priority
26-8 groundwater management area.
26-9 SECTION 26. Section 35.012, Water Code, is amended by adding
26-10 new Subsections (c) and (d), relettering existing Subsections (c),
26-11 (d), (e), and (f) as Subsections (e), (f), (g), and (h), and
26-12 amending existing Subsection (d), to read as follows:
26-13 (c) Not later than the 10th day after the date on which the
26-14 commission order designating a priority groundwater management area
26-15 is issued, the commission shall send written notice of the
26-16 commission's actions to each landowner in the designated priority
26-17 groundwater management area at the landowner's most recent known
26-18 address as shown in the tax rolls of the county in which the land
26-19 is located. The notice must include the commission's findings and
26-20 conclusions from the data and information considered in designating
26-21 the priority groundwater management area and the commission's
26-22 recommendation regarding the need for a groundwater conservation
26-23 district in the priority groundwater management area.
26-24 (d) As soon as possible after a commission order designating
26-25 a priority groundwater management area, the Texas Agricultural
26-26 Extension Service shall begin an educational program within the
26-27 area with the assistance and cooperation of the Texas Water
27-1 Development Board, the commission, other state agencies, and
27-2 existing districts to inform the residents of the status of the
27-3 area's water resources and management options including possible
27-4 formation of a district.
27-5 (e) Following the issuance of a commission order under
27-6 Subsection (b), the landowners in the priority groundwater
27-7 management area may:
27-8 (1) create one or more districts under Subchapter B,
27-9 Chapter 36;
27-10 (2) have the area annexed to a district that adjoins
27-11 the area; or
27-12 (3) create one or more districts through the
27-13 legislative process.
27-14 (f) [(d)] The commission shall identify the areas subject to
27-15 the order of the commission issued under Subsection (b) that have
27-16 not been incorporated into a district and shall delineate proposed
27-17 boundaries of a district to include those areas. [If the
27-18 commission proposes the creation of one or more districts, the
27-19 Texas Agricultural Extension Service shall begin an educational
27-20 program within such areas with the assistance and cooperation of
27-21 the Texas Water Development Board, the commission, other state
27-22 agencies, and existing districts to inform the residents of the
27-23 status of the area's water resources and management options
27-24 including possible formation of a district, before beginning the
27-25 procedures for creation of a district provided in Subchapter B,
27-26 Chapter 36.]
27-27 (g) [(e)] If the commission fails to find that the district
28-1 would be a benefit to the land and other property within the
28-2 priority groundwater management area, that there is a public need
28-3 for the district, or that creation of the district will further the
28-4 public welfare, the commission shall issue an order stating that a
28-5 district should not be created within the boundaries of the
28-6 priority groundwater management area.
28-7 (h) [(f)] An order of the commission issued under this
28-8 section may not be appealed.
28-9 SECTION 27. Section 36.014, Water Code, is amended to read
28-10 as follows:
28-11 Sec. 36.014. NOTICE AND HEARING ON DISTRICT CREATION. [(a)]
28-12 If a petition is filed under Section 36.013 or the commission
28-13 proposes that a district be created under Section 35.012(b), the
28-14 commission shall give notice of the [an] application or proposal as
28-15 required by Section 49.011(a) and may conduct a hearing on the
28-16 application or proposal if the commission determines that a hearing
28-17 is necessary under Section 49.011.
28-18 [(b) If the petition contains a request to create a
28-19 management area in all or part of the proposed district, the notice
28-20 must also be given in accordance with the requirements in Section
28-21 35.006 for the designation of management areas.]
28-22 SECTION 28. Section 36.015, Water Code, is amended to read
28-23 as follows:
28-24 Sec. 36.015. FINDINGS. (a) If the commission finds that a
28-25 district requested by petition or proposed by the commission is
28-26 feasible and practicable, [that it] would be a benefit to the land
28-27 in the district, and [that it] would be a public benefit or
29-1 utility, the commission shall issue an order containing these
29-2 findings granting the petition or adopting the proposal, as
29-3 appropriate.
29-4 (b) If the commission finds that a district is not feasible
29-5 and practicable, that it would not be a benefit to the land in the
29-6 district, that it would not be a public benefit or utility, or that
29-7 it is not needed, the commission by order shall deny the petition
29-8 or reject the proposal, as appropriate.
29-9 (c) The commission may adjust the boundaries of the proposed
29-10 district to exclude any land that would not be benefited by
29-11 inclusion in the district and is not necessary to the district for
29-12 proper regulation of the groundwater reservoir.
29-13 (d) If the commission grants the petition or adopts the
29-14 proposal to create the district, it shall direct in its order
29-15 creating the district that an election be called by the temporary
29-16 directors to confirm the creation of the district and to elect
29-17 permanent directors.
29-18 (e) [The refusal to grant a petition to create a district
29-19 does not invalidate or affect the designation of any management
29-20 area requested in the same petition.]
29-21 [(f)] The commission shall act on the petition or its
29-22 proposal within a reasonable amount of time.
29-23 SECTION 29. Section 36.0151, Water Code, is amended to read
29-24 as follows:
29-25 Sec. 36.0151. NOTICE OF CREATION BY COMMISSION OF DISTRICT
29-26 FOR PRIORITY GROUNDWATER MANAGEMENT AREA. [(a) If the commission
29-27 proposes that a district be created under Section 35.012(d), it
30-1 shall in its order creating the district provide that temporary
30-2 directors be appointed under Section 36.016 and that an election be
30-3 called by the temporary directors to confirm the creation of the
30-4 district and to elect permanent directors.]
30-5 [(b)] The commission shall notify the county commissioners
30-6 court of each county with territory in the district of the
30-7 district's creation as soon as practicable after issuing the order
30-8 under Section 36.015(a) creating a [the] district proposed by the
30-9 commission under Section 35.012(b).
30-10 SECTION 30. Section 36.108, Water Code, is amended to read
30-11 as follows:
30-12 Sec. 36.108. JOINT PLANNING IN MANAGEMENT AREA OR PRIORITY
30-13 GROUNDWATER MANAGEMENT AREA. (a) If two or more districts are
30-14 located within the boundaries of the same management area or
30-15 priority groundwater management area, each district shall prepare a
30-16 comprehensive management plan as required by Section 36.1071
30-17 covering that district's respective territory. On completion of
30-18 the plan, each district shall forward a copy of the new revised
30-19 management plan to the other districts in the management area or
30-20 priority groundwater management area.
30-21 (b) The board of directors of each district in the
30-22 management area or priority groundwater management area may, by
30-23 resolution, call a joint meeting with the boards of directors of
30-24 the other districts in the management area or priority groundwater
30-25 management area to review the management plans and accomplishments
30-26 for the management area or priority groundwater management area.
30-27 The boards shall meet to consider the plans individually and shall
31-1 compare them to other management plans then in force in the
31-2 management area. In reviewing the management plans, the boards
31-3 shall consider:
31-4 (1) the goals of each management plan and its impact
31-5 on planning throughout the management area or priority groundwater
31-6 management area;
31-7 (2) the effectiveness of the measures established by
31-8 each management plan for conserving and protecting groundwater and
31-9 preventing waste, and the effectiveness of these measures in the
31-10 management area or priority groundwater management area generally;
31-11 and
31-12 (3) any other matters that the boards consider
31-13 relevant to the protection and conservation of groundwater and the
31-14 prevention of waste in the management area or priority groundwater
31-15 management area.
31-16 (c) A joint meeting of the boards of directors must be held
31-17 in accordance with the Open Meetings Act, Chapter 551, Government
31-18 Code. Notice of the meeting shall be given in accordance with the
31-19 requirements for notice of district board of directors meetings
31-20 under that Act. In addition, notice of the meeting shall be
31-21 published not later than the 30th day before the date of the
31-22 scheduled meeting in a newspaper with general circulation in each
31-23 county in the management area or priority groundwater management
31-24 area.
31-25 (d) A district in the management area or priority
31-26 groundwater management area may file a petition with the commission
31-27 requesting an inquiry if the petitioner district believes that:
32-1 (1) another district in the management area or
32-2 priority groundwater management area has failed to adopt rules;
32-3 (2) the groundwater in the management area or priority
32-4 groundwater management area is not adequately protected by the
32-5 rules adopted by another district; or
32-6 (3) the groundwater in the management area or priority
32-7 groundwater management area is not adequately protected due to the
32-8 failure of another district to enforce substantial compliance with
32-9 its rules.
32-10 (e) Not later than the 90th day after the date the petition
32-11 is filed, the commission shall review the petition and either:
32-12 (1) dismiss it if it finds that the evidence is not
32-13 adequate to show that any of the conditions alleged in the petition
32-14 exist; or
32-15 (2) select a review panel as provided in Subsection
32-16 (f).
32-17 (f) The commission may appoint a review panel consisting of
32-18 a chairman and four other members. A director or general manager
32-19 of a district located outside the management area or priority
32-20 groundwater management area that is the subject of the petition may
32-21 be appointed to the review panel. The commission may not appoint
32-22 more than two members of the review panel from any one district.
32-23 The commission also shall appoint a disinterested person to serve
32-24 as a nonvoting recording secretary for the review panel. The
32-25 recording secretary may be an employee of the commission. The
32-26 recording secretary shall record and document the proceedings of
32-27 the panel.
33-1 (g) Not later than the 120th day after appointment, the
33-2 review panel shall review the petition and any evidence relevant to
33-3 the petition and, in a public meeting, prepare a report to the
33-4 commission. The commission may direct the review panel to conduct
33-5 public hearings at a location in the management area or priority
33-6 groundwater management area to take evidence on the petition. The
33-7 review panel may attempt to negotiate a settlement or resolve the
33-8 dispute by any lawful means.
33-9 (h) In its report, the review panel shall include:
33-10 (1) a summary of all evidence taken in any hearing on
33-11 the petition;
33-12 (2) a list of findings and recommended actions
33-13 appropriate for the commission to take and the reasons it finds
33-14 those actions appropriate; and
33-15 (3) any other information the panel considers
33-16 appropriate.
33-17 SECTION 31. Section 341.047, Health and Safety Code, is
33-18 transferred to Subchapter E, Chapter 7, Water Code, redesignated as
33-19 Section 7.1605, Water Code, and amended to read as follows:
33-20 Sec. 7.1605 [341.047]. VIOLATIONS RELATING TO PUBLIC
33-21 DRINKING WATER [CRIMINAL PENALTY]. (a) A person commits an
33-22 offense if the person:
33-23 (1) violates a provision of Section 341.031, Health
33-24 and Safety Code;
33-25 (2) violates a provision of Section 341.032(a) or (b),
33-26 Health and Safety Code;
33-27 (3) violates a provision of Section 341.033(a)-(f),
34-1 Health and Safety Code;
34-2 (4) constructs a drinking water supply system without
34-3 submitting completed plans and specifications as required by
34-4 Section 341.035(c), Health and Safety Code;
34-5 (5) begins construction of a drinking water supply
34-6 system without the commission's approval as required by Section
34-7 341.035(a), Health and Safety Code;
34-8 (6) violates a provision of Section 341.0351 or
34-9 341.0352, Health and Safety Code;
34-10 (7) fails to remove a sign as required by Section
34-11 341.0354, Health and Safety Code; or
34-12 (8) violates a provision of Section 341.036, Health
34-13 and Safety Code.
34-14 (b) An offense under Subsection (a) is a Class C
34-15 misdemeanor.
34-16 (c) If it is shown on a trial of the defendant that the
34-17 defendant has been convicted of an offense under Subsection (a)
34-18 within a year before the date on which the offense being tried
34-19 occurred, the subsequent offense under Subsection (a) is a Class B
34-20 misdemeanor.
34-21 (d) Each day of a continuing violation is a separate
34-22 offense.
34-23 SECTION 32. Section 341.048, Health and Safety Code, is
34-24 amended to read as follows:
34-25 Sec. 341.048. VIOLATION [CIVIL ENFORCEMENT]. [(a)] A person
34-26 may not cause, suffer, allow, or permit a violation of this
34-27 subchapter or a rule or order adopted under this subchapter.
35-1 [(b) A person who causes, suffers, allows, or permits a
35-2 violation under this subchapter shall be assessed a civil penalty
35-3 of not less than $50 nor more than $1,000 for each violation. Each
35-4 day of a continuing violation is a separate violation.]
35-5 [(c) If it appears that a person has violated, is violating,
35-6 or threatens to violate a provision under this subchapter, the
35-7 commission, a county, or a municipality may institute a civil suit
35-8 in a district court for:]
35-9 [(1) injunctive relief to restrain the person from
35-10 continuing the violation or threat of violation;]
35-11 [(2) the assessment and recovery of a civil penalty;
35-12 or]
35-13 [(3) both injunctive relief and a civil penalty.]
35-14 [(d) The commission is a necessary and indispensable party
35-15 in a suit brought by a county or municipality under this section.]
35-16 [(e) On the commission's request, the attorney general shall
35-17 institute a suit in the name of the state for injunctive relief, to
35-18 recover a civil penalty, or for both injunctive relief and civil
35-19 penalty.]
35-20 [(f) The suit may be brought in:]
35-21 [(1) Travis County;]
35-22 [(2) the county in which the defendant resides; or]
35-23 [(3) the county in which the violation or threat of
35-24 violation occurs.]
35-25 [(g) In a suit under this section to enjoin a violation or
35-26 threat of violation of this subchapter, the court shall grant the
35-27 state, county, or municipality, without bond or other undertaking,
36-1 any injunction that the facts may warrant including temporary
36-2 restraining orders, temporary injunctions after notice and hearing,
36-3 and permanent injunctions.]
36-4 [(h) Civil penalties recovered in a suit brought under this
36-5 section by a county or municipality shall be equally divided
36-6 between:]
36-7 [(1) the state; and]
36-8 [(2) the county or municipality that first brought the
36-9 suit.]
36-10 SECTION 33. (a) The following sections of the Water Code
36-11 are repealed:
36-12 (1) Section 11.082;
36-13 (2) Sections 11.0841 and 11.0842;
36-14 (3) Sections 13.4151 and 13.416; and
36-15 (4) Section 13.418.
36-16 (b) Sections 341.049 and 341.050, Health and Safety Code,
36-17 are repealed.
36-18 SECTION 34. This Act takes effect September 1, 1999.
36-19 SECTION 35. (a) The changes in law made by this Act apply
36-20 only to an offense committed or a violation or threat of violation
36-21 that occurs on or after September 1, 1999. For purposes of this
36-22 section an offense is committed and a violation or threat of
36-23 violation occurs before September 1, 1999, if any element of the
36-24 offense, violation, or threat of violation occurs before that date.
36-25 (b) An offense committed or a violation or threat of
36-26 violation that occurred before September 1, 1999, is covered by the
36-27 law in effect when the offense was committed or the violation or
37-1 threat of violation occurred, and the former law is continued in
37-2 effect for that purpose.
37-3 SECTION 36. The importance of this legislation and the
37-4 crowded condition of the calendars in both houses create an
37-5 emergency and an imperative public necessity that the
37-6 constitutional rule requiring bills to be read on three several
37-7 days in each house be suspended, and this rule is hereby suspended.