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By: Eissler (Senate Sponsor - Wentworth) H.B. No. 599
(In the Senate - Received from the House April 22, 2005;
April 25, 2005, read first time and referred to Committee on
Transportation and Homeland Security; May 23, 2005, reported
adversely, with favorable Committee Substitute by the following
vote: Yeas 5, Nays 0; May 23, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 599 By: Wentworth
A BILL TO BE ENTITLED
AN ACT
relating to erecting or maintaining certain outdoor signs or
advertising; creating an offense; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 391.031(a), Transportation Code, is
amended to read as follows:
(a) A person commits an offense if the person [wilfully]
erects or maintains outdoor advertising, or allows outdoor
advertising to be erected or maintained on property owned by the
person:
(1) within 660 feet of the nearest edge of a
right-of-way if the advertising is visible from the main-traveled
way of the interstate or primary system; or
(2) outside an urban area if the advertising is
located more than 660 feet from the nearest edge of a right-of-way,
is visible from the main-traveled way of the interstate or primary
system, and is erected for the purpose of having its message seen
from the main-traveled way of the interstate or primary system.
SECTION 2. The heading to Section 391.034, Transportation
Code, is amended to read as follows:
Sec. 391.034. [REMOVAL OF] NUISANCE OUTDOOR ADVERTISING;
INJUNCTION [BY COMMISSION].
SECTION 3. Sections 391.035(a) and (c), Transportation
Code, are amended to read as follows:
(a) In addition to being subject to a criminal penalty or
injunctive action, a person who intentionally violates this
subchapter or Subchapter C is liable to the state for a civil
penalty. The attorney general or a district or county attorney of
the county in which the violation is alleged to have occurred may
sue to collect the penalty.
(c) A penalty collected under this section shall be
deposited to the credit of the state highway fund if collected by
the attorney general and to the credit of the county road and bridge
fund of the county in which the violation occurred if collected by a
district or county attorney.
SECTION 4. Subchapter B, Chapter 391, Transportation Code,
is amended by adding Sections 391.038 and 391.039 to read as
follows:
Sec. 391.038. ADMINISTRATIVE PENALTY. (a) In lieu of a
suit to collect a civil penalty, the commission, after notice and an
opportunity for a hearing before the department, may impose an
administrative penalty against a person who intentionally violates
this chapter or a rule adopted by the commission under this chapter.
Each day a violation continues is a separate violation.
(b) The amount of the administrative penalty may not exceed
the maximum amount of a civil penalty under Section 391.035.
(c) A proceeding under this section is a contested case
under Chapter 2001, Government Code.
(d) An administrative penalty collected under this section
shall be deposited to the credit of the state highway fund.
Sec. 391.039. REVOCATION OF PERMIT IN ADDITION TO OTHER
PENALTY. (a) A court shall order the revocation of the permit
issued under Section 391.068 that a person holds for a location at
which a violation under this chapter occurs if it is shown at the
trial of the person for the collection of a civil penalty under
Section 391.035 or at an appeal of an administrative penalty under
Section 391.038 that a judgment for a civil penalty, the imposition
of an administrative penalty, or a final order for an
administrative penalty that was not timely appealed was previously
imposed under this chapter against the person.
(b) The revocation of a permit under this section is in
addition to any other penalty that may be imposed under this
chapter.
SECTION 5. Section 394.003, Transportation Code, is amended
by adding Subsection (d) to read as follows:
(d) This chapter does not apply to a temporary directional
sign or kiosk erected by a political subdivision as part of a
program approved by the commission and administered by the
political subdivision on a highway within the boundaries of the
political subdivision.
SECTION 6. The heading to Section 394.021, Transportation
Code, is amended to read as follows:
Sec. 394.021. ERECTING OFF-PREMISE SIGN WITHOUT PERMIT;
OFFENSE.
SECTION 7. Section 394.021, Transportation Code, is amended
by amending Subsection (a) and adding Subsections (c), (d), and (e)
to read as follows:
(a) A person commits an offense if the person erects [may
not erect] an off-premise sign unless the person first obtains a
permit under this subchapter from the commission.
(c) A person commits an offense if the person:
(1) allows an off-premise sign to be erected on
property owned by the person; and
(2) knows or should have known that the sign was
erected in violation of this chapter.
(d) An offense under this section is a misdemeanor
punishable by a fine of not less than $500 or more than $1,000. Each
day of the proscribed conduct is a separate offense.
(e) It is a defense to prosecution for an offense under this
chapter that the person removed the unauthorized sign not later
than the 45th day after the date the person received a citation for
the offense. If the court is satisfied with the evidence produced
by the person to establish a defense under this subsection, the
court shall dismiss the charge.
SECTION 8. Section 394.081, Transportation Code, is amended
by amending Subsections (a) and (c) and adding Subsection (d) to
read as follows:
(a) In addition to being subject to a criminal penalty or
injunctive action, a [A] person who intentionally violates this
chapter or a rule adopted by the commission under this chapter is
liable [to the state] for a civil penalty of not less than $150 or
more than $1,000 for each violation, depending on the seriousness
of the violation and whether the person has previously violated
this chapter. Each day a violation continues is a separate
violation.
(c) A civil penalty collected under this section shall be
deposited to the credit of the state highway fund if collected by
the attorney general and to the credit of the county road and bridge
fund if collected by a district or county attorney.
(d) Before a suit may be brought for a violation of this
chapter, the attorney general or the district or county attorney
for the county in which the violation is alleged to have occurred
shall give the person charged with the violation a written notice
that:
(1) describes the violation and specific location of
the sign found to be in violation;
(2) states the amount of the proposed penalty for the
violation; and
(3) gives the owner 45 days from receipt of the notice
to remove the sign and cure the violation to avoid the penalty
unless the person was given notice and opportunity to cure a similar
violation within the preceding 12 months.
SECTION 9. Subchapter E, Chapter 394, Transportation Code,
is amended by adding Section 394.087 to read as follows:
Sec. 394.087. INJUNCTION. (a) A sign that is erected in
violation of this chapter is a public nuisance.
(b) On written notice by certified mail from the department,
an owner of a sign that is a public nuisance under Subsection (a),
or the owner of the property on which the sign is located, shall
remove the sign. If the sign is not removed within 45 days of the
date of the notice, the department may direct the attorney general
to apply for an injunction to require the removal of the sign.
(c) The state is entitled to recover from the owner of a
sign, or the owner of the property from which a sign is removed,
under an action brought under Subsection (b) all administrative and
legal costs and expenses incurred to remove the sign, including
court costs and reasonable attorney's fees.
SECTION 10. (a) The change in law made by this Act to
Section 391.031, Transportation Code, applies only to an offense
committed on or after the effective date of this Act. For purposes
of this section, an offense is committed before the effective date
of this Act if any element of the offense occurs before that date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 11. This Act takes effect September 1, 2005.
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