By Wentworth S.B. No. 1175
77R5733 JMG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the administration of the weather modification program;
1-3 providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 2, Agriculture Code, is amended by adding
1-6 Chapter 20 to read as follows:
1-7 CHAPTER 20. WEATHER MODIFICATION
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 20.001. SHORT TITLE. This chapter may be cited as the
1-10 Weather Modification Act.
1-11 Sec. 20.002. DEFINITIONS. In this chapter:
1-12 (1) "Operation" means the performance of weather
1-13 modification and control activities entered into for the purpose of
1-14 producing or attempting to produce a certain modifying effect
1-15 within one geographical area over one continuing time interval not
1-16 exceeding four years.
1-17 (2) "Research and development" means theoretical
1-18 analysis, exploration, experimentation, and the extension of
1-19 investigative findings and theories of a scientific or technical
1-20 nature into practical application for experimental and
1-21 demonstration purposes, including the experimental production and
1-22 testing of models, devices, equipment, materials, and processes.
1-23 (3) "Weather modification and control" means changing
1-24 or controlling, or attempting to change or control, by artificial
2-1 methods the natural development of atmospheric cloud forms or
2-2 precipitation forms that occur in the troposphere.
2-3 (Sections 20.003-20.010 reserved for expansion
2-4 SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT
2-5 Sec. 20.011. RULES. The department may adopt rules necessary
2-6 to:
2-7 (1) exercise the powers and perform the duties under
2-8 this chapter;
2-9 (2) establish procedures and conditions for the
2-10 issuance of licenses and permits under this chapter; and
2-11 (3) establish standards and instructions to govern the
2-12 carrying out of research or projects in weather modification and
2-13 control that the department considers necessary or desirable to
2-14 minimize danger to health or property.
2-15 Sec. 20.012. STUDIES; INVESTIGATIONS; HEARINGS. The
2-16 department may make any studies or investigations, obtain any
2-17 information, and hold any hearings necessary or proper to
2-18 administer or enforce this chapter or any rules or orders issued
2-19 under this chapter.
2-20 Sec. 20.013. ADVISORY COMMITTEES. The department may
2-21 establish advisory committees to advise the department and to make
2-22 recommendations to the department concerning legislation, policies,
2-23 administration, research, and other matters related to the
2-24 department's duties, powers, or functions under this chapter.
2-25 Sec. 20.014. PERSONNEL. The commissioner may, as provided by
2-26 the General Appropriations Act, appoint and fix the compensation of
2-27 any personnel, including specialists and consultants, necessary to
3-1 perform duties and functions under this chapter.
3-2 Sec. 20.015. MATERIALS AND EQUIPMENT. The department may
3-3 acquire in the manner provided by law any materials, equipment, and
3-4 facilities necessary to the performance of its duties and functions
3-5 under this chapter.
3-6 Sec. 20.016. INTERSTATE COMPACTS. The commissioner may
3-7 represent the state in matters pertaining to plans, procedures, or
3-8 negotiations for interstate compacts relating to weather
3-9 modification and control.
3-10 Sec. 20.017. CONTRACTS, COOPERATIVE AGREEMENTS, ETC. (a)
3-11 The department may cooperate with public or private agencies to
3-12 promote the purposes of this chapter.
3-13 (b) The department may enter into cooperative agreements
3-14 with the United States or any of its agencies, with counties and
3-15 municipalities of this state, or with any private or public
3-16 agencies for conducting weather modification or cloud-seeding
3-17 operations.
3-18 (c) The department may represent the state, counties,
3-19 municipalities, and public and private agencies in contracting with
3-20 private concerns for the performance of weather modification or
3-21 cloud-seeding operations.
3-22 Sec. 20.018. PROMOTION OF RESEARCH AND DEVELOPMENT. (a) In
3-23 order to assist in expanding the theoretical and practical
3-24 knowledge of weather modification and control, the department shall
3-25 promote continuous research and development in:
3-26 (1) the theory and development of methods of weather
3-27 modification and control, including processes, materials, and
4-1 devices related to these methods;
4-2 (2) the use of weather modification and control for
4-3 agricultural, industrial, commercial, and other purposes; and
4-4 (3) the protection of life and property during
4-5 research and operational activities.
4-6 (b) The department with approval of the commissioner may
4-7 conduct and may contract for research and development activities
4-8 relating to the purposes of this section.
4-9 Sec. 20.019. GRANTS, GIFTS, ETC. Subject to any limitations
4-10 imposed by law, the department may accept federal grants, private
4-11 gifts, and donations from any other source. Unless the use of the
4-12 money is restricted or subject to any limitations provided by law,
4-13 the department may spend the money for the administration of this
4-14 chapter or may by grant, contract, or cooperative arrangement use
4-15 the money to encourage research and development by a public or
4-16 private agency.
4-17 Sec. 20.020. DISPOSITION OF LICENSE AND PERMIT FEES. The
4-18 department shall deposit all license and permit fees in the state
4-19 treasury.
4-20 (Sections 20.021-20.030 reserved for expansion
4-21 SUBCHAPTER C. LICENSES AND PERMITS
4-22 Sec. 20.031. LICENSE AND PERMIT REQUIRED. Except as provided
4-23 by rule of the department under Section 20.032, a person may not
4-24 engage in activities for weather modification and control:
4-25 (1) without a weather modification license and weather
4-26 modification permit issued by the department; or
4-27 (2) in violation of any term or condition of the
5-1 license or permit.
5-2 Sec. 20.032. EXEMPTIONS. The department, to the extent it
5-3 considers exemptions practical, shall provide by rule for exempting
5-4 the following activities from the license and permit requirements
5-5 of this chapter:
5-6 (1) research, development, and experiments conducted
5-7 by state and federal agencies, institutions of higher learning, and
5-8 bona fide nonprofit research organizations;
5-9 (2) laboratory research and experiments;
5-10 (3) activities of an emergent nature for protection
5-11 against fire, frost, sleet, or fog; and
5-12 (4) activities normally conducted for purposes other
5-13 than inducing, increasing, decreasing, or preventing precipitation
5-14 or hail.
5-15 Sec. 20.033. ISSUANCE OF LICENSE. (a) The department, in
5-16 accordance with the rules adopted under this chapter, shall issue a
5-17 weather modification license to each applicant who:
5-18 (1) pays the license fee; and
5-19 (2) demonstrates, to the satisfaction of the
5-20 department, competence in the field of meteorology that is
5-21 reasonably necessary to engage in weather modification and control
5-22 activities.
5-23 (b) If the applicant is an organization, the competence must
5-24 be demonstrated by the individual or individuals who are to be in
5-25 control and in charge of the operation for the applicant.
5-26 Sec. 20.034. LICENSE FEE. The fee for an original or renewal
5-27 license is $150.
6-1 Sec. 20.035. EXPIRATION DATE. Each original or renewal
6-2 license expires at the end of the state fiscal year for which it
6-3 was issued.
6-4 Sec. 20.036. RENEWAL LICENSE. At the expiration of the
6-5 license period, the department shall issue a renewal license to
6-6 each applicant who pays the license fee and who has the
6-7 qualifications necessary for issuance of an original license.
6-8 Sec. 20.037. ISSUANCE OF PERMIT. (a) The department, in
6-9 accordance with the rules adopted under this chapter and on a
6-10 finding that the weather modification and control operation as
6-11 proposed in the permit application will not significantly dissipate
6-12 the clouds and prevent their natural course of developing rain in
6-13 the area where the operation is to be conducted to the material
6-14 detriment of persons or property in that area, and after approval
6-15 at an election if covered by Section 20.041, may issue a weather
6-16 modification permit to each applicant who:
6-17 (1) holds a valid weather modification license;
6-18 (2) pays the permit fee;
6-19 (3) publishes a notice of intention and submits proof
6-20 of publication as required by this chapter; and
6-21 (4) furnishes proof of financial responsibility.
6-22 (b) The department shall, if requested by at least 25
6-23 persons, hold at least one public hearing in the area where the
6-24 operation is to be conducted prior to the issuance of a permit.
6-25 Sec. 20.038. PERMIT FEE. The fee for each permit is $75.
6-26 Sec. 20.039. SCOPE OF PERMIT. A separate permit is required
6-27 for each operation. If an operation is to be conducted under
7-1 contract, a permit is required for each separate contract. The
7-2 department may not issue a permit for a contracted operation unless
7-3 it covers a continuous period not to exceed four years.
7-4 Sec. 20.040. APPLICATION AND NOTICE OF INTENTION. Before
7-5 undertaking any operation, a license holder must file an
7-6 application for a permit and have a notice of intention published
7-7 as required by this chapter.
7-8 Sec. 20.041. ELECTION FOR APPROVAL OF A PERMIT THAT INCLUDES
7-9 AUTHORIZATION FOR HAIL SUPPRESSION. (a) In this section:
7-10 (1) "Target area" means that area described by metes
7-11 and bounds or other specific bounded description set out in the
7-12 application for a permit.
7-13 (2) "Operational area" means that area that joins the
7-14 target area and is reasonably necessary to use in order to
7-15 effectuate the purposes over the target area without affecting the
7-16 land or land owners in the operational area.
7-17 (b) No part of an operational area may be more than eight
7-18 miles from the limits of the target area. The operational area
7-19 must be described by metes and bounds or other specific bounded
7-20 description and set out in the application for a permit. If the
7-21 application for a permit does not describe the operational area,
7-22 the department may designate an area located inside and up to eight
7-23 miles from the limits of the target area described in the
7-24 application as the operational area of the permit for the purposes
7-25 of this chapter.
7-26 (c) A permit may not be issued by the department before the
7-27 end of the 30-day period immediately following the first
8-1 publication of notice and then only in:
8-2 (1) those counties or parts of counties in the target
8-3 area or operational area in which the majority of the qualified
8-4 voters voting have approved or have not disapproved the issuance of
8-5 a permit if an election has been held; or
8-6 (2) in any county or part of a county in the target
8-7 area or operational area if no petition for an election has been
8-8 filed.
8-9 (d) Persons eligible to vote in elections held under this
8-10 section shall include qualified voters in counties or parts of
8-11 counties included in the target area or operational area. If the
8-12 target area or operational area includes only part of a county, an
8-13 election held under this section may be held only in the election
8-14 precincts that are included entirely within or are partially
8-15 included in those areas. All qualified voters in those precincts
8-16 are entitled to vote in these elections.
8-17 (e) On written request of at least 25 qualified voters
8-18 residing in the target area or operational area mentioned in the
8-19 notice requesting an election accompanied by unsigned petitions,
8-20 the county clerk of each county within the target area or
8-21 operational area shall certify and mark for identification
8-22 petitions for circulation. An application for a petition seeking
8-23 an election to disapprove the issuance of a permit must be headed:
8-24 "Application for Election to Disapprove a Weather Modification
8-25 Permit." The application shall contain a statement just ahead of
8-26 the signatures of the applicants stating the following: "It is the
8-27 hope, purpose, and intent of the applicants whose signatures appear
9-1 on this application to see disapproved the issuance of a permit for
9-2 weather modification, including hail suppression." An application
9-3 for a petition seeking an election to approve the issuance of a
9-4 permit shall be headed: "Application for Election to Approve a
9-5 Weather Modification Permit." The application shall contain a
9-6 statement just ahead of the signatures of the applicants as
9-7 follows: "It is the hope, purpose, and intent of the applicants
9-8 whose signatures appear on this petition to see approved the
9-9 issuance of a permit for weather modification, including hail
9-10 suppression." On the return to the county clerks of petitions
9-11 signed by at least 10 percent of the qualified voters residing in
9-12 each county within the target area or operational area in the
9-13 notice requesting an election, the commissioners court of each
9-14 county shall call and hold an election. Notice under Chapter 111,
9-15 Local Government Code, of the commissioners court meeting to call
9-16 and hold the election is not required. The date of the election
9-17 shall be determined by the commissioners court in accordance with
9-18 this section, notwithstanding Sections 41.004 and 41.0041, Election
9-19 Code. The petition must be filed with the clerk of each county
9-20 within 30 days immediately following the first publication of
9-21 notice. The election must be held within 45 days after the date
9-22 the petition is received to determine whether or not the qualified
9-23 voters in the target area or operational area approve the issuance
9-24 of the permit. Immediately on calling the election, the clerk of
9-25 each county within the target area or operational area shall notify
9-26 the commissioner of the date of the election. Except as otherwise
9-27 provided in this chapter, elections must be held in accordance with
10-1 the Election Code.
10-2 (f) The petition for the election shall read substantially
10-3 as follows: "The following qualified voters of __________ County
10-4 request the Commissioners Court of __________ County to call an
10-5 election at which the qualified voters shall be asked to vote on
10-6 the proposition of whether or not they approve of the issuance of a
10-7 weather modification permit that includes authorization for hail
10-8 suppression (description of area)." Each qualified voter signing
10-9 the petition must give the voter's full name and address and voter
10-10 registration number. Within five days after the date of receiving
10-11 a petition under this section, the commissioners court shall have
10-12 the county clerk of the county check the names on the petition
10-13 against the voter registration lists of the county and certify to
10-14 the commissioners court the number of qualified voters signing the
10-15 petition as reflected by checking the county's voter registration
10-16 lists. If only a part of a county is included in the target area
10-17 or operational area, the county clerk shall also certify that those
10-18 signing the petition reside in an election precinct in the county
10-19 totally or partially included in the target area or operational
10-20 area. On certification by the county clerk, the petition must be
10-21 filed with the official records of the county and be made available
10-22 for public inspection.
10-23 (g) A person filing a petition with the county clerk shall
10-24 deposit with the county clerk an amount of money estimated by the
10-25 county clerk to be sufficient to cover the costs of the election,
10-26 to be held by the county clerk until the result of the election to
10-27 approve or disapprove the issuance of the permit is officially
11-1 announced. If the result of the election favors the party
11-2 petitioning for the election, the county clerk shall return the
11-3 deposit to the person filing the petition or to the person's agent
11-4 or attorney, but if the result of the election does not favor the
11-5 party petitioning for the election, the county clerk shall pay the
11-6 cost and expenses of the election from the deposit and return the
11-7 balance of the deposit to the person filing the petition or to the
11-8 person's agent or attorney.
11-9 (h) The ballots for an election under this section must be
11-10 printed to provide for voting for or against the proposition: "The
11-11 issuance of a permit providing for weather modification, including
11-12 authorization for hail suppression and control in (description of
11-13 area)."
11-14 (i) The order calling the election shall provide for the
11-15 time and place or places for holding the election, the form of the
11-16 ballots, and the presiding judge for each voting place.
11-17 (j) The commissioners court shall publish a copy of the
11-18 election order in a newspaper of general circulation in the county
11-19 or in the part of the county within the target area or operational
11-20 area at least 30 days preceding the day of the election.
11-21 (k) The presiding judge of each voting place shall supervise
11-22 the counting of all votes cast and shall certify the results to the
11-23 commissioners court within five days after the date of the
11-24 election. A copy of the results is to be filed with the county
11-25 clerk and is a public record.
11-26 (l) Within five days after the results are filed, the
11-27 commissioners court shall declare the results.
12-1 (m) The commissioners court of each county holding an
12-2 election shall send certified copies of the results of the election
12-3 to the commissioner within 24 hours after the results are declared
12-4 under Subsection (k).
12-5 (n) If a majority of the qualified voters voting in the
12-6 election precincts any part of which are located in the target area
12-7 vote against issuance of the permit, a permit may not be issued.
12-8 If a majority of the qualified voters voting in the election
12-9 precincts any part of which are located within the target area vote
12-10 in favor of issuance of the permit, the department may issue the
12-11 permit as provided in this subchapter, except that if a majority of
12-12 the qualified voters voting in either of the following areas vote
12-13 against issuance of the permit, those areas must be excluded from
12-14 the coverage of the permit:
12-15 (1) any election precinct any part of which is located
12-16 in the operational area; or
12-17 (2) any election precinct located wholly within the
12-18 target area and contiguous with its outer boundary.
12-19 (o) If the department finds that a weather modification and
12-20 control operation is still feasible, a permit may be issued
12-21 covering areas in which no election is requested or areas in which
12-22 the voters give their approval as provided in this section.
12-23 (p) If a permit is denied under Subsection (n), an
12-24 application for a permit covering all or part of the same target
12-25 area or operational area that was denied may not be considered, and
12-26 for a period of two years following the date of the election, a
12-27 permit under that application may not be issued by the department
13-1 and an election may not be held under this chapter.
13-2 (q) If a permit including authorization for hail suppression
13-3 is to cover only a part of a county, only those qualified voters
13-4 residing in an election precinct or precincts of the county
13-5 included in the target area or operational area are eligible to
13-6 sign a petition and to vote at an election under this section. In
13-7 computing the vote, only a majority of qualified voters residing in
13-8 those areas and voting in the election is necessary to carry the
13-9 proposition in that county.
13-10 (r) A permit may not be issued that provides for or allows
13-11 the seeding of clouds for hail suppression outside the target area
13-12 or within those counties or parts of counties located in the
13-13 operational or target areas that were excluded from the coverage of
13-14 the permit by an election under Subsection (n). Seeding may be
13-15 done in those counties or parts of counties located in the
13-16 operational or target area which were not excluded from the
13-17 coverage of the permit by virtue of an election under Subsection
13-18 (n), provided the seeding is reasonably calculated to take effect
13-19 only within the target area. This subsection does not prohibit the
13-20 observation of cloud and cloud formations.
13-21 (s) The department may monitor any program under conditions
13-22 the department determines advisable.
13-23 (t) On petition as provided in this section, the
13-24 commissioners court of any county outside but adjacent to a county
13-25 included in the operational area of an existing or proposed permit
13-26 shall call and hold an election on the proposition of whether or
13-27 not the qualified voters of the county approve of the issuance of
14-1 any permit authorizing hail suppression in the county. If the
14-2 county voters voting in the election disapprove the issuance of
14-3 permits authorizing hail suppression, the department may not issue
14-4 a permit covering the county until the proposition has been
14-5 approved at a subsequent election.
14-6 (u) If any county or part of a county has disapproved the
14-7 issuance of a permit at the previous election held under this
14-8 section, that county or part of a county may not be included in any
14-9 permit issued by the department until the voters of that county or
14-10 part of a county have participated in a subsequent election at
14-11 which a permit is approved. The applicant for a permit that
14-12 includes that county or part of a county has the burden of
14-13 petitioning for an election and depositing costs in the manner
14-14 provided by this section for the original election to approve or
14-15 disapprove a permit.
14-16 (v) The department by rule shall define hail suppression as
14-17 used in this section, using the most current scientifically
14-18 accepted technological concepts.
14-19 Sec. 20.042. CONTENT OF NOTICE. In the notice of intention,
14-20 the applicant must include:
14-21 (1) the name and address of the licensee;
14-22 (2) the nature and object of the intended operation
14-23 and the person or organization on whose behalf it is to be
14-24 conducted;
14-25 (3) the area in which and the approximate time during
14-26 which the operation is to be conducted;
14-27 (4) the area which is intended to be affected by the
15-1 operation; and
15-2 (5) the materials and methods to be used in conducting
15-3 the operation.
15-4 Sec. 20.043. PUBLICATION OF NOTICE. The notice of intention
15-5 must be published at least once a week for three consecutive weeks
15-6 in a newspaper of general circulation published in each county in
15-7 which the operation is to be conducted and in each county that
15-8 includes any part of the affected area. If in any such county no
15-9 newspaper of general circulation is published, then publication
15-10 must be made in a newspaper having general circulation in the
15-11 county.
15-12 Sec. 20.044. PROOF OF PUBLICATION; AFFIDAVIT. The applicant
15-13 shall file proof of the publication, together with the publishers'
15-14 affidavits, with the department during the 15-day period
15-15 immediately following the date of the last publication.
15-16 Sec. 20.045. PROOF OF FINANCIAL RESPONSIBILITY. Proof of
15-17 financial responsibility is made by showing to the satisfaction of
15-18 the department that the license holder has the ability to respond
15-19 in damages for liability that might reasonably result from the
15-20 operation for which the permit is sought.
15-21 Sec. 20.046. MODIFICATION OF PERMIT. The department may
15-22 modify the terms and conditions of a permit if:
15-23 (1) the license holder is first given notice and a
15-24 reasonable opportunity for a hearing on the need for a
15-25 modification; and
15-26 (2) it appears to the department that a modification
15-27 is necessary to protect the health or property of any person.
16-1 Sec. 20.047. SCOPE OF ACTIVITY. (a) Once a permit is
16-2 issued, the license holder shall confine the license holder's
16-3 activities substantially within the limits of time and area
16-4 specified in the notice of intention, except to the extent that the
16-5 limits are modified by the department. The license holder shall
16-6 also comply with any terms and conditions of the permit as
16-7 originally issued or as subsequently modified by the department.
16-8 (b) Failure of a license holder to comply with the
16-9 provisions of Subsection (a) is a violation of this chapter.
16-10 Sec. 20.048. RECORDS AND REPORTS. (a) A license holder
16-11 shall keep a record of each operation conducted under a permit,
16-12 showing:
16-13 (1) the method employed;
16-14 (2) the type of equipment used;
16-15 (3) the kind and amount of each material used;
16-16 (4) the times and places the equipment is operated;
16-17 (5) the name and mailing address of each individual,
16-18 other than the license holder, who participates or assists in the
16-19 operation; and
16-20 (6) other information required by the department.
16-21 (b) The department shall require written reports covering
16-22 each operation, whether the operation is exempt or conducted under
16-23 a permit.
16-24 (c) At the time and in the manner required by the
16-25 department, a license holder shall submit a written report
16-26 containing the information described by Subsection (a).
16-27 (d) All information on an operation must be submitted to the
17-1 department before it is released to the public.
17-2 (e) The reports and records in the custody of the department
17-3 must be kept open for public inspection.
17-4 (Sections 20.049-20.050 reserved for expansion
17-5 SUBCHAPTER D. ADMINISTRATIVE PENALTY
17-6 Sec. 20.051. MAXIMUM AMOUNT. (a) The department may assess
17-7 an administrative penalty against a person as provided by this
17-8 section if the person violates:
17-9 (1) a provision of this chapter;
17-10 (2) a rule adopted or order issued by the department
17-11 under this chapter; or
17-12 (3) a permit issued by the department under this
17-13 chapter.
17-14 (b) The amount of the administrative penalty for a violation
17-15 of this chapter may not exceed $2,500 a day for each violation.
17-16 (c) Each day that a continuing violation occurs may be
17-17 considered a separate violation. The department may authorize an
17-18 installment payment schedule for an administrative penalty assessed
17-19 under this section.
17-20 Sec. 20.052. FACTORS TO BE CONSIDERED IN DETERMINATION OF
17-21 PENALTY AMOUNT. In determining the amount of an administrative
17-22 penalty, the department shall consider:
17-23 (1) the nature, circumstances, extent, duration, and
17-24 gravity of the prohibited act, with special emphasis on the
17-25 impairment of existing water rights or the hazard or potential
17-26 hazard created to the health or safety of the public;
17-27 (2) the impact of the violation on:
18-1 (A) air quality in the region;
18-2 (B) a receiving stream or underground water
18-3 reservoir;
18-4 (C) instream uses, water quality, aquatic and
18-5 wildlife habitat, or beneficial freshwater inflows to bays and
18-6 estuaries; or
18-7 (D) affected persons;
18-8 (3) with respect to the alleged violator:
18-9 (A) the history and extent of previous
18-10 violations;
18-11 (B) the degree of culpability, including whether
18-12 the violation was attributable to mechanical or electrical failures
18-13 and whether the violation could have been reasonably anticipated
18-14 and avoided;
18-15 (C) the demonstrated good faith, including
18-16 actions taken by the alleged violator to rectify the cause of the
18-17 violation and to compensate affected persons;
18-18 (D) economic benefit gained through the
18-19 violation; and
18-20 (E) the amount necessary to deter future
18-21 violations; and
18-22 (4) any other matter that justice may require.
18-23 Sec. 20.053. REPORT OF VIOLATION. If, after examination of a
18-24 possible violation and the facts surrounding that possible
18-25 violation, the commissioner concludes that a violation has
18-26 occurred, the commissioner may issue a preliminary report in
18-27 accordance with department rules that includes recommendations
19-1 regarding any penalty or corrective action.
19-2 Sec. 20.054. NOTICE OF REPORT. Not later than the 10th day
19-3 after the date on which the report of a violation is issued, the
19-4 department shall give written notice of the report, in accordance
19-5 with department rules, to the person charged with the violation.
19-6 Sec. 20.055. CONSENT. Not later than the 20th day after the
19-7 date on which notice is received, the person charged may give to
19-8 the department written consent to the department's report,
19-9 including the recommended penalty, or make a written request for a
19-10 hearing.
19-11 Sec. 20.056. DEFAULT. If the person charged with the
19-12 violation consents to the penalty recommended by the department or
19-13 does not timely respond to the notice, the department by order
19-14 shall assess the penalty or order a hearing to be held on the
19-15 recommendations in the commissioner's report. If the department
19-16 assesses the penalty, the department shall give written notice of
19-17 its decision to the person charged.
19-18 Sec. 20.057. HEARING. If the person charged requests or the
19-19 department orders a hearing, the department shall order and shall
19-20 give notice of the hearing. The department by order may find that
19-21 a violation has occurred and may assess a penalty, may find that a
19-22 violation has occurred but that a penalty should not be assessed,
19-23 or may find that a violation has not occurred. In making a penalty
19-24 decision, the department shall analyze each factor prescribed by
19-25 Section 20.052. All proceedings under this section are subject to
19-26 Chapter 2001, Government Code.
19-27 Sec. 20.058. NOTICE OF DECISION. The department shall give
20-1 notice of its decision to the person charged. If the department
20-2 finds that a violation has occurred and assesses a penalty, the
20-3 department shall give written notice to the person charged of:
20-4 (1) the department's findings;
20-5 (2) the amount of the penalty;
20-6 (3) the right to judicial review of the department's
20-7 order; and
20-8 (4) other information required by law.
20-9 Sec. 20.059. NOTICE OF PENALTY. If the department is
20-10 required to give notice of a penalty under Section 20.056 or
20-11 20.058, the department shall publish notice of its decision in the
20-12 Texas Register not later than the 10th day after the date on which
20-13 the decision is adopted.
20-14 Sec. 20.060. PAYMENT OF PENALTY; PETITION FOR REVIEW. Within
20-15 the 30-day period immediately following the date on which the
20-16 department's order is final, as provided by Section 2001.144,
20-17 Government Code, the person charged with the penalty shall:
20-18 (1) pay the penalty in full;
20-19 (2) pay the first installment penalty payment in full;
20-20 (3) pay the penalty and file a petition for judicial
20-21 review, contesting either the amount of the penalty or the fact of
20-22 the violation or contesting both the fact of the violation and the
20-23 amount of the penalty; or
20-24 (4) without paying the penalty, file a petition for
20-25 judicial review contesting the occurrence of the violation and the
20-26 amount of the penalty.
20-27 Sec. 20.061. STAYS. Within the 30-day period described by
21-1 Section 20.060, a person who acts under Section 20.060(3) may:
21-2 (1) stay enforcement of the penalty by:
21-3 (A) paying the amount of the penalty to the
21-4 court for placement in an escrow account; or
21-5 (B) giving to the court a supersedeas bond that
21-6 is approved by the court for the amount of the penalty and that is
21-7 effective until all judicial review of the department's order is
21-8 final; or
21-9 (2) request the court to stay enforcement of the
21-10 penalty by:
21-11 (A) filing with the court a sworn affidavit of
21-12 the person stating that the person is financially unable to give
21-13 the supersedeas bond; and
21-14 (B) sending a copy of the affidavit to the
21-15 department by certified mail.
21-16 Sec. 20.062. CONSENT TO AFFIDAVIT. If the department
21-17 receives a copy of an affidavit under Section 20.061(2), the
21-18 department may file with the court, within five days after the date
21-19 the copy is received, a contest to the affidavit. The court shall
21-20 hold a hearing on the facts alleged in the affidavit as soon as
21-21 practicable and shall stay the enforcement of the penalty on
21-22 finding that the alleged facts are true. The person who files an
21-23 affidavit has the burden of proving that the person is financially
21-24 unable to pay the penalty or give the supersedeas bond.
21-25 Sec. 20.063. JUDICIAL REVIEW. Judicial review of the order
21-26 or decision of the department assessing the penalty is under
21-27 Subchapter G, Chapter 2001, Government Code.
22-1 Sec. 20.064. PENALTY REDUCED OR NOT ASSESSED. (a) If the
22-2 person paid the penalty and if the penalty is reduced or not
22-3 assessed by the court, the department shall remit to the person
22-4 charged the appropriate amount plus accrued interest if the penalty
22-5 has been paid or shall execute a release of the bond if a
22-6 supersedeas bond has been posted.
22-7 (b) The accrued interest on amounts remitted by the
22-8 department under this section shall be paid at a rate equal to the
22-9 rate charged on loans to depository institutions by the New York
22-10 Federal Reserve Bank and shall be paid for the period beginning on
22-11 the date the penalty is paid to the department under Section 20.060
22-12 and ending on the date the penalty is remitted.
22-13 Sec. 20.065. REFERRAL TO ATTORNEY GENERAL. A person who does
22-14 not comply with Section 20.060 waives the right to judicial review,
22-15 and the department may refer the matter to the attorney general for
22-16 enforcement.
22-17 Sec. 20.066. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) The
22-18 department may compromise, modify, or remit, with or without
22-19 conditions, an administrative penalty imposed under this chapter.
22-20 In determining the appropriate amount of a penalty for settlement
22-21 of an administrative enforcement matter, the department may
22-22 consider a respondent's willingness to contribute to supplemental
22-23 environmental projects that are approved by the department, giving
22-24 preference to projects that benefit the community in which the
22-25 alleged violation occurred. The department may approve a
22-26 supplemental environmental project with activities in territory of
22-27 the United Mexican States if the project substantially benefits
23-1 territory in this state in a manner described by Subsection (b).
23-2 The department may not approve a project that is necessary to bring
23-3 a respondent into compliance with environmental laws or that is
23-4 necessary to remediate environmental harm caused by the
23-5 respondent's alleged violation.
23-6 (b) In this section, "supplemental environmental project"
23-7 means a project that prevents pollution, reduces the amount of
23-8 pollutants reaching the environment, enhances the quality of the
23-9 environment, or contributes to public awareness of environmental
23-10 matters.
23-11 Sec. 20.067. FULL AND COMPLETE SATISFACTION. Payment of an
23-12 administrative penalty under this subchapter is full and complete
23-13 satisfaction of the violation for which the penalty is assessed and
23-14 precludes any other civil or criminal penalty for the same
23-15 violation.
23-16 Sec. 20.068. DISPOSITION OF PENALTY. A penalty collected
23-17 under this subchapter shall be deposited to the credit of the
23-18 general revenue fund.
23-19 Sec. 20.069. FINDINGS OF FACT NOT REQUIRED; RESERVATIONS.
23-20 Notwithstanding any other provision to the contrary, the department
23-21 is not required to make findings of fact or conclusions of law
23-22 other than an uncontested finding that the department has
23-23 jurisdiction in an agreed order compromising or settling an alleged
23-24 violation of a statute within the department's jurisdiction or of a
23-25 rule adopted or order or permit issued under such a statute. An
23-26 agreed administrative order may include a reservation that:
23-27 (1) the order is not an admission of a violation of a
24-1 statute within the department's jurisdiction or of a rule adopted
24-2 or order or permit issued under such a statute;
24-3 (2) the occurrence of a violation is in dispute; or
24-4 (3) the order is not intended to become a part of a
24-5 party's or a facility's compliance history.
24-6 Sec. 20.070. INADMISSIBILITY. An agreed administrative order
24-7 issued by the department under this subchapter is not admissible
24-8 against a party to the order in a civil proceeding unless the
24-9 proceeding is brought by the attorney general's office to:
24-10 (1) enforce the terms of the order; or
24-11 (2) pursue a violation of a statute within the
24-12 department's jurisdiction or of a rule adopted or order or permit
24-13 issued under such a statute.
24-14 Sec. 20.071. RECOVERY OF PENALTY. An administrative penalty
24-15 owed under this subchapter may be recovered in a civil action
24-16 brought by the attorney general at the request of the department.
24-17 Sec. 20.072. CORRECTIVE ACTION. If a person violates any
24-18 statute or rule within the department's jurisdiction, the
24-19 department may:
24-20 (1) assess against the person an administrative
24-21 penalty under this subchapter; and
24-22 (2) order the person to take corrective action.
24-23 Sec. 20.073. HEARING POWERS. The department may call and
24-24 hold hearings, administer oaths, receive evidence at the hearing,
24-25 issue subpoenas to compel the attendance of witnesses and the
24-26 production of papers and documents related to the hearing, and make
24-27 findings of fact and decisions with respect to administering the
25-1 provisions of this chapter or the rules, orders, or other actions
25-2 of the department.
25-3 Sec. 20.074. PUBLIC COMMENT. (a) Before the department
25-4 approves an administrative order or proposed agreement to settle an
25-5 administrative enforcement action initiated under this chapter to
25-6 which the department is a party, the department shall allow the
25-7 public to comment in writing on the proposed order or agreement.
25-8 Notice of the opportunity to comment shall be published in the
25-9 Texas Register not later than the 30th day before the date on which
25-10 the public comment period closes.
25-11 (b) The department shall promptly consider any written
25-12 comments and may withdraw or withhold consent to the proposed order
25-13 or agreement if the comments disclose facts or considerations that
25-14 indicate that the consent is inappropriate, improper, inadequate,
25-15 or inconsistent with the requirements of this chapter, another
25-16 statute within the department's jurisdiction, or a rule adopted or
25-17 order or permit issued under such a statute. Further notice of
25-18 changes to the proposed order or agreement is not required to be
25-19 published if those changes arise from comments submitted in
25-20 response to a previous notice.
25-21 (c) This section does not apply to:
25-22 (1) a criminal enforcement proceeding; or
25-23 (2) an emergency order or other emergency relief that
25-24 is not a final order of the department.
25-25 (d) Chapter 2001, Government Code, does not apply to public
25-26 comment under this section.
25-27 (Sections 20.075-20.080 reserved for expansion
26-1 SUBCHAPTER E. CIVIL PENALTIES
26-2 Sec. 20.081. VIOLATION. A person may not cause, suffer,
26-3 allow, or permit a violation of this chapter or a rule adopted or
26-4 order or permit issued under this chapter.
26-5 Sec. 20.082. MAXIMUM PENALTY. A person who causes, suffers,
26-6 allows, or permits a violation of this chapter or a rule adopted or
26-7 order or permit issued under this chapter, shall be assessed for
26-8 each violation a civil penalty not less than $50 or greater than
26-9 $5,000 for each day of each violation as the court or jury
26-10 considers proper. Each day of a continuing violation is a separate
26-11 violation.
26-12 Sec. 20.083. CONTINUING VIOLATIONS. If it is shown on a
26-13 trial of a defendant that the defendant has previously been
26-14 assessed a civil penalty for a violation of this chapter or a rule
26-15 adopted or order or permit issued under this chapter within the
26-16 year before the date on which the violation being tried occurred,
26-17 the defendant shall be assessed a civil penalty not less than $100
26-18 or greater than $25,000 for each subsequent day and for each
26-19 subsequent violation. Each day of a continuing violation is a
26-20 separate violation.
26-21 Sec. 20.084. INJUNCTIVE RELIEF. (a) The department may
26-22 enforce a department rule or a provision of a permit issued by the
26-23 department by injunction or other appropriate remedy.
26-24 (b) If it appears that a violation or threat of violation of
26-25 this chapter or a rule adopted or order or permit issued under this
26-26 chapter has occurred or is about to occur, the department may have
26-27 a suit instituted in district court for injunctive relief to
27-1 restrain the violation or threat of violation.
27-2 (c) The suit may be brought in the county in which the
27-3 defendant resides or in the county in which the violation or threat
27-4 of violation occurs.
27-5 (d) In a suit brought under this section to enjoin a
27-6 violation or threat of violation described by Subsection (b), the
27-7 court may grant the department, without bond or other undertaking,
27-8 any prohibitory or mandatory injunction the facts may warrant,
27-9 including a temporary restraining order and, after notice and
27-10 hearing, a temporary or permanent injunction.
27-11 (e) On request of the department, the attorney general or
27-12 the prosecuting attorney in a county in which the violation occurs
27-13 shall initiate a suit in the name of the state for injunctive
27-14 relief, to recover a civil penalty, or for both injunctive relief
27-15 and a civil penalty.
27-16 Sec. 20.085. RESOLUTION THROUGH ADMINISTRATIVE ORDER. The
27-17 attorney general's office and the department may agree to resolve
27-18 any violation, before or after referral, by an administrative order
27-19 issued under this chapter by the department with the approval of
27-20 the attorney general.
27-21 Sec. 20.086. DIVISION OF CIVIL PENALTY. A civil penalty
27-22 recovered in a suit brought under this chapter by a local
27-23 government shall be equally divided between:
27-24 (1) the state; and
27-25 (2) the local government that brought the suit.
27-26 Sec. 20.087. ATTORNEY'S FEES. If the state prevails in a
27-27 suit under this chapter it may recover reasonable attorney's fees,
28-1 court costs, and reasonable investigative costs incurred in
28-2 relation to the proceeding.
28-3 Sec. 20.088. PARKS AND WILDLIFE DEPARTMENT JURISDICTION. (a)
28-4 If it appears that a violation or threat of violation of a rule,
28-5 permit, or order of the department adopted or issued under this
28-6 chapter has occurred or is occurring that affects aquatic life or
28-7 wildlife, the Parks and Wildlife Department, in the same manner as
28-8 the department under this chapter, may have a suit instituted in a
28-9 district court for injunctive relief or civil penalties, or both,
28-10 as authorized by this chapter, against the person who committed, is
28-11 committing, or is threatening to commit the violation.
28-12 (b) In a suit brought under this section for a violation
28-13 that is the proximate cause of injury to aquatic life or wildlife
28-14 normally taken for commercial or sport purposes or to species on
28-15 which the aquatic life or wildlife is directly dependent for food,
28-16 the Parks and Wildlife Department is entitled to recover damages
28-17 for the injury. In determining damages, the court may consider the
28-18 valuation of the injured resources established in rules adopted by
28-19 the Parks and Wildlife Department under Subchapter D, Chapter 12,
28-20 Parks and Wildlife Code, or the replacement cost of the injured
28-21 resources. Any recovery of damages for injury to aquatic life or
28-22 wildlife shall be deposited to the credit of the game, fish, and
28-23 water safety account under Section 11.032, Parks and Wildlife Code,
28-24 and the Parks and Wildlife Department shall use money recovered in
28-25 a suit brought under this section to replenish or enhance the
28-26 injured resources.
28-27 (c) The actual cost of investigation, reasonable attorney's
29-1 fees, and reasonable expert witness fees may also be recovered, and
29-2 those recovered amounts shall be credited to the same operating
29-3 accounts from which expenditures occurred.
29-4 (d) This section does not limit recovery for damages
29-5 available under other laws.
29-6 Sec. 20.089. COMMENTS. (a) Before the department approves
29-7 an agreed final judgment, consent order, voluntary settlement
29-8 agreement, or other voluntary agreement that would finally settle a
29-9 civil enforcement action initiated under this chapter to which this
29-10 state is a party or before the court signs a judgment or other
29-11 agreement settling a judicial enforcement action other than an
29-12 enforcement action under Section 113 or 120 or Title II of the
29-13 federal Clean Air Act (42 U.S.C. Section 7401 et seq.), the
29-14 attorney general shall permit the public to comment in writing on
29-15 the proposed order, judgment, or other agreement.
29-16 (b) Notice of the opportunity to comment shall be published
29-17 in the Texas Register not later than the 30th day before the date
29-18 on which the public comment period closes.
29-19 (c) The attorney general shall promptly consider any written
29-20 comments and may withdraw or withhold consent to the proposed
29-21 order, judgment, or other agreement if the comments disclose facts
29-22 or considerations that indicate that the consent is inappropriate,
29-23 improper, inadequate, or inconsistent with the requirements of this
29-24 chapter or a rule adopted or order or permit issued under this
29-25 chapter. Further notice of changes to the proposed order,
29-26 judgment, or other agreement is not required to be published if
29-27 those changes arise from comments submitted in response to a
30-1 previous notice.
30-2 (d) The attorney general may not oppose intervention by a
30-3 person who has standing to intervene as provided by Rule 60, Texas
30-4 Rules of Civil Procedure.
30-5 (e) This section does not apply to:
30-6 (1) criminal enforcement proceedings; or
30-7 (2) proposed temporary restraining orders, temporary
30-8 injunctions, emergency orders, or other emergency relief that is
30-9 not a final judgment or final order of the court or department.
30-10 (f) Chapter 2001, Government Code, does not apply to public
30-11 comment under this section.
30-12 (Section 20.090 reserved for expansion
30-13 SUBCHAPTER F. CRIMINAL PENALTY
30-14 Sec. 20.091. VIOLATION. (a) A person commits an offense if
30-15 the person violates this chapter or a rule adopted or order or
30-16 permit issued under this chapter.
30-17 (b) An offense under this section is a misdemeanor and is
30-18 punishable by a fine of not more than $1,000, confinement for a
30-19 period not to exceed 30 days, or both.
30-20 Sec. 20.092. REPEAT OFFENSES. If it is shown at the trial of
30-21 the defendant that the defendant has previously been convicted of
30-22 the same offense under this chapter, the maximum punishment is
30-23 doubled with respect to both the fine and confinement, unless the
30-24 section creating the offense specifies otherwise.
30-25 Sec. 20.093. SEPARATE OFFENSES. Each day a person engages in
30-26 conduct proscribed by this chapter constitutes a separate offense.
30-27 Sec. 20.094. DISPOSITION OF FINES. A fine recovered through
31-1 a prosecution brought under this subchapter shall be divided
31-2 equally between the state and any local government significantly
31-3 involved in prosecuting the case, except that if the court
31-4 determines that the state or the local government bore
31-5 significantly more of the burden of prosecuting the case, the court
31-6 may apportion up to 75 percent of the fine to the government that
31-7 predominantly prosecuted the case.
31-8 Sec. 20.095. VENUE. Venue for prosecution of an alleged
31-9 violation under this subchapter is in:
31-10 (1) the county in which the violation is alleged to
31-11 have occurred;
31-12 (2) the county where the defendant resides;
31-13 (3) if the alleged violation involves the
31-14 transportation of a discharge, waste, or pollutant, any county to
31-15 which or through which the discharge, waste, or pollutant was
31-16 transported; or
31-17 (4) Travis County.
31-18 Sec. 20.096. NOTICE OF CONVICTION. In addition to a sentence
31-19 that may be imposed under this subchapter, a person other than an
31-20 individual that has been adjudged guilty of an offense may be
31-21 ordered by the court to give notice of the conviction to any person
31-22 the court considers appropriate.
31-23 Sec. 20.097. JUDGMENT OF CONVICTION. On conviction under
31-24 this subchapter, the clerk of the court in which the conviction is
31-25 returned shall send a copy of the judgment to the department.
31-26 Sec. 20.098. ALLEGATIONS. In alleging the name of a
31-27 defendant private corporation, it is sufficient to state in the
32-1 complaint, indictment, or information the corporate name or to
32-2 state any name or designation by which the corporation is known or
32-3 may be identified. It is not necessary to allege that the
32-4 defendant was lawfully incorporated.
32-5 Sec. 20.099. SUMMONS AND ARREST. (a) After a complaint is
32-6 filed or an indictment or information presented against a private
32-7 corporation under this subchapter, the court or clerk shall issue a
32-8 summons to the corporation. The summons shall be in the same form
32-9 as a capias except that:
32-10 (1) it shall summon the corporation to appear before
32-11 the court named at the place stated in the summons;
32-12 (2) it shall be accompanied by a certified copy of the
32-13 complaint, indictment, or information; and
32-14 (3) it shall provide that the corporation appear
32-15 before the court named at or before 10 a.m. of the Monday next
32-16 after the expiration of 20 days after it is served with summons,
32-17 except when service is made on the secretary of state, in which
32-18 instance the summons shall provide that the corporation appear
32-19 before the court named at or before 10 a.m. of the Monday next
32-20 after the expiration of 30 days after the secretary of state is
32-21 served with summons.
32-22 (b) No individual may be arrested upon a complaint,
32-23 indictment, or information against a private corporation.
32-24 Sec. 20.100. SERVICE OF SUMMONS. (a) A peace officer shall
32-25 serve a summons on a private corporation by personally delivering a
32-26 copy of it to the corporation's registered agent for service. If a
32-27 registered agent has not been designated or cannot with reasonable
33-1 diligence be found at the registered office, the peace officer
33-2 shall serve the summons by personally delivering a copy of it to
33-3 the president or a vice president of the corporation.
33-4 (b) If the peace officer certifies on the return that the
33-5 peace officer diligently but unsuccessfully attempted to effect
33-6 service under Subsection (a) or if the corporation is a foreign
33-7 corporation that has no certificate of authority, the peace officer
33-8 shall serve the summons on the secretary of state. On receipt of
33-9 the summons copy, the secretary of state shall immediately forward
33-10 it by certified or registered mail, return receipt requested,
33-11 addressed to the defendant corporation at its registered office or,
33-12 if it is a foreign corporation, at its principal office in the
33-13 state or country under whose law it was incorporated.
33-14 (c) The secretary of state shall keep a permanent record of
33-15 the date and time of receipt and the disposition of each summons
33-16 served under Subsection (b) together with the return receipt.
33-17 Sec. 20.101. ARRAIGNMENT AND PLEADINGS. In any criminal
33-18 action instituted against a private corporation under this
33-19 subchapter:
33-20 (1) appearance is for the purpose of arraignment; and
33-21 (2) the corporation has 10 full days after the day the
33-22 arraignment takes place and before the day the trial begins to file
33-23 written pleadings.
33-24 Sec. 20.102. APPEARANCE. (a) A defendant private
33-25 corporation appears through counsel or its representative.
33-26 (b) If a private corporation does not appear in response to
33-27 summons or appears but does not plead, the corporation is
34-1 considered to be present in person for all purposes, and the court
34-2 shall enter a plea of not guilty on the corporation's behalf and
34-3 may proceed with trial, judgment, and sentencing.
34-4 (c) After appearing and entering a plea in response to
34-5 summons, if a private corporation is absent without good cause at
34-6 any time during later proceedings, the corporation is considered to
34-7 be present in person for all purposes, and the court may proceed
34-8 with trial, judgment, or sentencing.
34-9 Sec. 20.103. FINE TREATED AS JUDGMENT IN CIVIL ACTION. If a
34-10 person other than an individual is found guilty of a violation of
34-11 this subchapter and a fine is imposed, the fine shall be entered
34-12 and docketed by the clerk of the court as a judgment against the
34-13 person, and the fine shall be of the same force and effect and be
34-14 enforced against the person in the same manner as if the judgment
34-15 were recovered in a civil action.
34-16 Sec. 20.104. EFFECT OF CERTAIN OTHER LAWS. Conduct
34-17 punishable as an offense under this subchapter that is also
34-18 punishable under another law may be prosecuted under either law.
34-19 Sec. 20.105. DEFENSE EXCLUDED. It is not a defense to
34-20 prosecution under this subchapter that the person did not know of
34-21 or was not aware of a rule, order, or statute.
34-22 (Sections 20.106-20.110 reserved for expansion
34-23 SUBCHAPTER G. DEFENSES
34-24 Sec. 20.111. ACT OF GOD. If a person can establish that an
34-25 event that would otherwise be a violation of a statute within the
34-26 department's jurisdiction or a rule adopted or order or permit
34-27 issued under such a statute was caused solely by an act of God,
35-1 war, strike, riot, or other catastrophe, the event is not a
35-2 violation of that statute, rule, order, or permit.
35-3 Sec. 20.112. DEFENSE EXCLUDED. Unless otherwise provided by
35-4 this chapter, the fact that a person holds a permit issued by the
35-5 department does not relieve that person from liability for the
35-6 violation of a statute within the department's jurisdiction or a
35-7 rule adopted or order or permit issued under such a statute.
35-8 (Sections 20.113-20.120 reserved for expansion
35-9 SUBCHAPTER H. REVOCATION AND SUSPENSION
35-10 OF PERMITS AND LICENSES
35-11 Sec. 20.121. DEFINITIONS. In this subchapter:
35-12 (1) "License" and "exemption" have the meanings
35-13 assigned by department rule.
35-14 (2) "Permit holder" or "holder of a permit" includes
35-15 each member of a partnership or association and, with respect to a
35-16 corporation, each officer and the owner or owners of a majority of
35-17 the corporate stock, provided such partner or owner controls at
35-18 least 20 percent of the permit holder.
35-19 Sec. 20.122. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT.
35-20 (a) This section applies to a permit or exemption issued by the
35-21 department under this chapter or a rule adopted under this chapter.
35-22 (b) After notice and hearing, the department may revoke,
35-23 suspend, or revoke and reissue a permit or exemption on any of the
35-24 following grounds:
35-25 (1) violating any term or condition of the permit, and
35-26 revocation, suspension, or revocation and reissuance is necessary
35-27 in order to maintain the quality of water or the quality of air in
36-1 the state, or to otherwise protect human health and the environment
36-2 consistent with the objectives of the statutes or rules within the
36-3 department's jurisdiction;
36-4 (2) having a record of environmental violations in the
36-5 preceding five years at the permitted or exempted site;
36-6 (3) causing a discharge, release, or emission
36-7 contravening a pollution control standard set by the department or
36-8 contravening the intent of a statute or rule described in
36-9 Subsection (a);
36-10 (4) misrepresenting or failing to disclose fully all
36-11 relevant facts in obtaining the permit or misrepresenting to the
36-12 department any relevant fact at any time;
36-13 (5) a permit holder being indebted to the state for
36-14 fees, payment of penalties, or taxes imposed by the statutes or
36-15 rules within the department's jurisdiction;
36-16 (6) a permit holder failing to ensure that the
36-17 management of the permitted facility conforms or will conform to
36-18 the statutes and rules within the department's jurisdiction;
36-19 (7) abandoning the permit or operations under the
36-20 permit;
36-21 (8) the department finds that a change in conditions
36-22 requires elimination of the discharge authorized by the permit; or
36-23 (9) failing to continue to possess qualifications
36-24 necessary for the issuance of an original permit.
36-25 Sec. 20.123. GROUNDS FOR REVOCATION OR SUSPENSION OF
36-26 LICENSE. (a) This section applies to a license issued under this
36-27 chapter or a rule adopted under this chapter.
37-1 (b) After notice and hearing, the department may suspend or
37-2 revoke a license the department has issued, place on probation a
37-3 person whose license has been suspended, reprimand the holder of a
37-4 license, or refuse to renew or reissue a license on any of the
37-5 following grounds:
37-6 (1) having a record of environmental violations in the
37-7 preceding five years at the licensed site;
37-8 (2) committing fraud or deceit in obtaining the
37-9 license;
37-10 (3) demonstrating gross negligence, incompetency, or
37-11 misconduct while acting as holder of a license;
37-12 (4) making an intentional misstatement or
37-13 misrepresentation of fact in information required to be maintained
37-14 or submitted to the department by the holder of the license;
37-15 (5) failing to keep and transmit records as required
37-16 by a statute within the department's jurisdiction or a rule adopted
37-17 under such a statute;
37-18 (6) being indebted to the state for a fee, payment of
37-19 a penalty, or a tax imposed by a statute within the department's
37-20 jurisdiction or a rule adopted under such a statute; or
37-21 (7) failing to continue to possess qualifications
37-22 necessary for the issuance of an original license.
37-23 Sec. 20.124. PROCEDURES. The department by rule shall
37-24 establish procedures for public notice and any public hearing under
37-25 this subchapter.
37-26 Sec. 20.125. HEARINGS. A hearing under this subchapter shall
37-27 be conducted in accordance with the hearing rules adopted by the
38-1 department and the applicable provisions of Chapter 2001,
38-2 Government Code.
38-3 Sec. 20.126. CONSENT. If the holder of a permit or license
38-4 requests or consents to the revocation or suspension of the permit
38-5 or license, the commissioner may revoke or suspend the permit or
38-6 license without a hearing.
38-7 Sec. 20.127. OTHER RELIEF. A proceeding brought by the
38-8 department under this subchapter does not affect the department's
38-9 authority to bring suit for injunctive relief or a penalty, or
38-10 both, under this chapter.
38-11 Sec. 20.128. PROBATION REQUIREMENTS. If a license suspension
38-12 is probated, the department may require the holder of the license:
38-13 (1) to report regularly to the department on matters
38-14 that are the basis of the probation;
38-15 (2) to limit activities to the areas prescribed by the
38-16 department; or
38-17 (3) to continue or renew professional education until
38-18 the registrant attains a degree of skill satisfactory to the
38-19 department in those areas that are the basis of the probation.
38-20 (Sections 20.129-20.130 reserved for expansion
38-21 SUBCHAPTER I. IMMUNITY; LEGAL RELATIONSHIPS
38-22 Sec. 20.131. IMMUNITY OF STATE. The state and its officers
38-23 and employees are immune from liability for all weather
38-24 modification and control activities conducted by private persons
38-25 and groups.
38-26 Sec. 20.132. PRIVATE LEGAL RELATIONSHIPS. (a) This chapter
38-27 does not affect private legal relationships, except that an
39-1 operation conducted under the license and permit requirements of
39-2 this chapter is not an ultrahazardous activity which makes the
39-3 participants subject to liability without fault.
39-4 (b) The fact that a person holds a license or permit under
39-5 this chapter or that the person has complied with this chapter or
39-6 the regulations issued under this chapter is not admissible as
39-7 evidence in any legal proceeding brought against the person.
39-8 SECTION 2. Section 5.013(a), Water Code, is amended to read
39-9 as follows:
39-10 (a) The commission has general jurisdiction over:
39-11 (1) water and water rights including the issuance of
39-12 water rights permits, water rights adjudication, cancellation of
39-13 water rights, and enforcement of water rights;
39-14 (2) continuing supervision over districts created
39-15 under Article III, Sections 52(b)(1) and (2), and Article XVI,
39-16 Section 59, of the Texas Constitution;
39-17 (3) the state's water quality program including
39-18 issuance of permits, enforcement of water quality rules, standards,
39-19 orders, and permits, and water quality planning;
39-20 (4) [the state's weather modification program
39-21 including the issuance of permits and licenses and the enforcement
39-22 of permits, licenses, rules, standards, and orders relating to
39-23 weather modification;]
39-24 [(5)] the determination of the feasibility of certain
39-25 federal projects;
39-26 (5) [(6)] the adoption and enforcement of rules and
39-27 performance of other acts relating to the safe construction,
40-1 maintenance, and removal of dams;
40-2 (6) [(7)] conduct of the state's hazardous spill
40-3 prevention and control program;
40-4 (7) [(8)] the administration of the state's program
40-5 relating to inactive hazardous substance, pollutant, and
40-6 contaminant disposal facilities;
40-7 (8) [(9)] the administration of a portion of the
40-8 state's injection well program;
40-9 (9) [(10)] the administration of the state's programs
40-10 involving underground water and water wells and drilled and mined
40-11 shafts;
40-12 (10) [(11)] the state's responsibilities relating to
40-13 regional waste disposal;
40-14 (11) [(12)] the responsibilities assigned to the
40-15 commission by Chapters 361, 363, 382, 401, and 402, Health and
40-16 Safety Code;
40-17 (12) [(13)] the administration of the national flood
40-18 insurance program;
40-19 (13) [(14)] administration of the state's water rate
40-20 program under Chapter 13 of this code; and
40-21 (14) [(15)] any other areas assigned to the commission
40-22 by this code and other laws of this state.
40-23 SECTION 3. Section 7.052(a), Water Code, is amended to read
40-24 as follows:
40-25 (a) The amount of the penalty for a violation of Chapter
40-26 [18,] 32, 33, or 34 of this code or Chapter 366, 371, or 372,
40-27 Health and Safety Code, may not exceed $2,500 a day for each
41-1 violation.
41-2 SECTION 4. Section 7.102, Water Code, is amended to read as
41-3 follows:
41-4 Sec. 7.102. MAXIMUM PENALTY. A person who causes, suffers,
41-5 allows, or permits a violation of a statute, rule, order, or permit
41-6 relating to Chapter [18,] 32, 33, or 34 of this code or Chapter
41-7 366, 371, or 372, Health and Safety Code, shall be assessed for
41-8 each violation a civil penalty not less than $50 nor greater than
41-9 $5,000 for each day of each violation as the court or jury
41-10 considers proper. A person who causes, suffers, allows, or permits
41-11 a violation of a statute, rule, order, or permit relating to any
41-12 other matter within the commission's jurisdiction to enforce, other
41-13 than violations of Chapter 11, 12, 13, 16, or 36 of this code, or
41-14 Chapter 341, Health and Safety Code, shall be assessed for each
41-15 violation a civil penalty not less than $50 nor greater than
41-16 $25,000 for each day of each violation as the court or jury
41-17 considers proper. Each day of a continuing violation is a separate
41-18 violation.
41-19 SECTION 5. Section 7.302, Water Code, is amended to read as
41-20 follows:
41-21 Sec. 7.302. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT.
41-22 (a) This section applies to a permit or exemption issued by the
41-23 commission under:
41-24 (1) Chapter [18,] 26, 27, 28, or 31 of this code;
41-25 (2) Subchapter C or R, Chapter 361, Health and Safety
41-26 Code;
41-27 (3) Subchapter D, Chapter 366, Health and Safety Code;
42-1 (4) Chapter 382, Health and Safety Code; or
42-2 (5) a rule adopted under any of those provisions.
42-3 (b) After notice and hearing, the commission may revoke,
42-4 suspend, or revoke and reissue a permit or exemption on any of the
42-5 following grounds:
42-6 (1) violating any term or condition of the permit, and
42-7 revocation, suspension, or revocation and reissuance is necessary
42-8 in order to maintain the quality of water or the quality of air in
42-9 the state, or to otherwise protect human health and the environment
42-10 consistent with the objectives of the statutes or rules within the
42-11 commission's jurisdiction;
42-12 (2) having a record of environmental violations in the
42-13 preceding five years at the permitted or exempted site;
42-14 (3) causing a discharge, release, or emission
42-15 contravening a pollution control standard set by the commission or
42-16 contravening the intent of a statute or rule described in
42-17 Subsection (a);
42-18 (4) including a material mistake in a federal
42-19 operating permit issued under Chapter 382, Health and Safety Code,
42-20 or making an inaccurate statement in establishing an emissions
42-21 standard or other term or condition of a federal operating permit;
42-22 (5) misrepresenting or failing to disclose fully all
42-23 relevant facts in obtaining the permit or misrepresenting to the
42-24 commission any relevant fact at any time;
42-25 (6) a permit holder being indebted to the state for
42-26 fees, payment of penalties, or taxes imposed by the statutes or
42-27 rules within the commission's jurisdiction;
43-1 (7) a permit holder failing to ensure that the
43-2 management of the permitted facility conforms or will conform to
43-3 the statutes and rules within the commission's jurisdiction;
43-4 (8) the permit is subject to cancellation or
43-5 suspension under Section 26.084;
43-6 (9) abandoning the permit or operations under the
43-7 permit; or
43-8 (10) the commission finds that a change in conditions
43-9 requires elimination of the discharge authorized by the permit[; or]
43-10 [(11) with respect to a permit issued under Chapter
43-11 18, failing to continue to possess qualifications necessary for the
43-12 issuance of an original permit].
43-13 SECTION 6. Section 7.303, Water Code, is amended to read as
43-14 follows:
43-15 Sec. 7.303. GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSE,
43-16 CERTIFICATE, OR REGISTRATION. (a) This section applies to a
43-17 license, certificate, or registration issued:
43-18 (1) by the commission under:
43-19 (A) Section 26.0301 or 26.459 of this code;
43-20 (B) Chapter [18,] 32, 33, or 34 of this code;
43-21 (C) Section 361.0861, 361.092, or 361.112,
43-22 Health and Safety Code; or
43-23 (D) Chapter 366, 371, or 401, Health and Safety
43-24 Code;
43-25 (2) by a county under Subchapter E, Chapter 361,
43-26 Health and Safety Code; or
43-27 (3) under a rule adopted under any of those
44-1 provisions.
44-2 (b) After notice and hearing, the commission may suspend or
44-3 revoke a license, certificate, or registration the commission or a
44-4 county has issued, place on probation a person whose license,
44-5 certificate, or registration has been suspended, reprimand the
44-6 holder of a license, certificate, or registration, or refuse to
44-7 renew or reissue a license, certificate, or registration on any of
44-8 the following grounds:
44-9 (1) having a record of environmental violations in the
44-10 preceding five years at the licensed, certified, or registered
44-11 site;
44-12 (2) committing fraud or deceit in obtaining the
44-13 license, certificate, or registration;
44-14 (3) demonstrating gross negligence, incompetency, or
44-15 misconduct while acting as holder of a license, certificate, or
44-16 registration;
44-17 (4) making an intentional misstatement or
44-18 misrepresentation of fact in information required to be maintained
44-19 or submitted to the commission by the holder of the license,
44-20 certificate, or registration;
44-21 (5) failing to keep and transmit records as required
44-22 by a statute within the commission's jurisdiction or a rule adopted
44-23 under such a statute;
44-24 (6) being indebted to the state for a fee, payment of
44-25 a penalty, or a tax imposed by a statute within the commission's
44-26 jurisdiction or a rule adopted under such a statute;
44-27 (7) [with respect to a license issued under Chapter
45-1 18, failing to continue to possess qualifications necessary for the
45-2 issuance of an original license;]
45-3 [(8)] with respect to a certificate of competency
45-4 issued under Section 26.0301, violating a discharge permit of a
45-5 sewage treatment plant, unless:
45-6 (A) the holder of the certificate is unable to
45-7 properly operate the sewage treatment facility due to the refusal
45-8 of the permit holder to authorize necessary expenditures to operate
45-9 the sewage treatment facility properly; or
45-10 (B) failure of the sewage treatment facility to
45-11 comply with its discharge permit results from faulty design of the
45-12 sewage treatment facility;
45-13 (8) [(9)] with respect to a license issued under
45-14 Chapter 32, failing to advise a person for whom a well is being
45-15 drilled that injurious water has been encountered, is a pollution
45-16 hazard, and must be immediately plugged in an acceptable manner;
45-17 (9) [(10)] with respect to a registration issued under
45-18 Chapter 366, Health and Safety Code, violating that chapter or a
45-19 rule adopted under that chapter; or
45-20 (10) [(11)] with respect to a license issued under
45-21 Subchapter E, Chapter 361, Health and Safety Code, violating that
45-22 chapter or another applicable law or a commission rule governing
45-23 the processing, storage, or disposal of solid waste.
45-24 SECTION 7. Chapter 18 and Section 7.144, Water Code, are
45-25 repealed.
45-26 SECTION 8. (a) On the effective date of this Act, all
45-27 powers, duties, obligations, rights, contracts, records, employees,
46-1 property, and unspent and unobligated appropriations and other
46-2 funds of the Texas Natural Resource Conservation Commission that
46-3 are used by that agency on the effective date of this Act to
46-4 administer the weather modification program are transferred to the
46-5 Department of Agriculture.
46-6 (b) All rules, policies, procedures, and decisions that
46-7 affect the weather modification program are continued in effect
46-8 until superseded by a rule or other appropriate action of the
46-9 Department of Agriculture.
46-10 (c) Any action or proceeding before the Texas Natural
46-11 Resource Conservation Commission relating to the weather
46-12 modification program is transferred without change in status to the
46-13 Department of Agriculture, and the Department of Agriculture
46-14 assumes, without change in status, the position of the Texas
46-15 Natural Resource Conservation Commission in any action or
46-16 proceeding relating to the weather modification program to which
46-17 the Texas Natural Resource Conservation Commission is a party.
46-18 (d) The weather modification program established under
46-19 Chapter 18, Water Code, is abolished on the effective date of this
46-20 Act. The Texas Natural Resource Conservation Commission may not
46-21 award a grant under that program on or after that date. All
46-22 unobligated and unexpended balances in the weather modification
46-23 fund are transferred on the effective date of this Act to the
46-24 control of the Department of Agriculture.
46-25 (e) The Department of Agriculture shall adopt rules to
46-26 implement Chapter 20, Agriculture Code, as added by this Act, not
46-27 later than December 31, 2001.
47-1 SECTION 9. This Act takes effect September 1, 2001.