By Turner of Coleman                                  H.B. No. 2391
         77R7483 CBH-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to fees and penalties relating to notification of
 1-3     underground excavation.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Section 251.106, Utilities Code, is amended to
 1-6     read as follows:
 1-7           Sec. 251.106.  PAYMENTS TO CORPORATION. Each time a
 1-8     notification center receives a call from an excavator under Section
 1-9     251.151, the notification center shall pay the corporation five
1-10     cents [one cent].  The corporation shall waive this charge for the
1-11     remainder of any year in which the corporation receives $250,000
1-12     [$500,000] under this section.
1-13           SECTION 2. Section 251.201, Utilities Code, is amended to
1-14     read as follows:
1-15           Sec. 251.201.  CIVIL PENALTY OR WARNING LETTER. (a)  An
1-16     excavator that violates Section 251.151, 251.152, or 251.159 is
1-17     liable for a civil penalty of not less than $500 [$50] or more than
1-18     $1,000 [$100].  Instead of the fine provided by this subsection,
1-19     the corporation may give the excavator a warning letter and require
1-20     the excavator to attend a safety training course approved by the
1-21     corporation.
1-22           (b)  If it is found at the trial on a civil penalty that the
1-23     excavator has violated this chapter and has been assessed a penalty
1-24     under this section or has received a warning letter from the
 2-1     corporation one other time before the first anniversary of the date
 2-2     of the most recent violation, the excavator is liable for a civil
 2-3     penalty of not less than $1,000 [$100] or more than $2,000 [$200].
 2-4           (c)  If it is found at the trial on a civil penalty that the
 2-5     excavator has violated this chapter and has been assessed a penalty
 2-6     under this section at least two other times before the first
 2-7     anniversary of the date of the most recent violation, or has been
 2-8     assessed a penalty at least one other time before the first
 2-9     anniversary of the date of the most recent violation and has
2-10     received a warning letter from the corporation during that period,
2-11     the excavator is liable for a civil penalty of not less than $2,000
2-12     [$200] or more than $5,000 [$500].
2-13           (d)  In assessing the civil penalty the court shall consider
2-14     the actual damage to the facility, the effect of the excavator's
2-15     actions on the public health and safety, whether the violation was
2-16     a wilful act, and any good faith of the excavator in attempting to
2-17     achieve compliance.
2-18           (e)  Venue for a proceeding to collect a civil penalty under
2-19     this section is in the county in which:
2-20                 (1)  all or part of the alleged violation occurred;
2-21                 (2)  the defendant has its principal place of business
2-22     in this state; or
2-23                 (3)  the defendant resides, if in this state.
2-24           (f)  The appropriate county attorney or criminal district
2-25     attorney shall bring the action to recover the civil penalty.
2-26           (g)  This section does not apply to a residential property
2-27     owner excavating on the property owner's own residential lot.
 3-1           SECTION 3. This Act takes effect September 1, 2001, and
 3-2     applies to a violation that occurs on or after that date.  A
 3-3     violation that occurs before that date is governed by the law in
 3-4     effect when the violation occurred, and that law is continued in
 3-5     effect for that purpose.