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79R4092 JTS-F

By:  Hinojosa                                                     S.B. No. 699



A BILL TO BE ENTITLED

AN ACT

relating to the relationship between the amount of an 
administrative penalty imposed by the Texas Commission on 
Environmental Quality and the economic benefit of the violation to 
the alleged violator.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Section 7.053, Water Code, is amended to read as 
follows:        
	Sec. 7.053.  FACTORS TO BE CONSIDERED IN DETERMINATION OF 
PENALTY AMOUNT.  (a) In determining the amount of an administrative 
penalty, the commission shall consider:
		(1)  the nature, circumstances, extent, duration, and 
gravity of the prohibited act, with special emphasis on the 
impairment of existing water rights or the hazard or potential 
hazard created to the health or safety of the public;
		(2)  the impact of the violation on:                                          
			(A)  air quality in the region;                                              
			(B)  a receiving stream or underground water 
reservoir;                    
			(C)  instream uses, water quality, aquatic and 
wildlife habitat, or beneficial freshwater inflows to bays and 
estuaries; or
			(D)  affected persons;                                                       
		(3)  with respect to the alleged violator:                                    
			(A)  the history and extent of previous 
violations;                        
			(B)  the degree of culpability, including whether 
the violation was attributable to mechanical or electrical failures 
and whether the violation could have been reasonably anticipated 
and avoided;
			(C)  the demonstrated good faith, including 
actions taken by the alleged violator to rectify the cause of the 
violation and to compensate affected persons;
			(D)  the economic benefit gained through the 
violation; and         
			(E)  the amount necessary to deter future 
violations; and                  
		(4)  any other matters that justice may require.                              
	(b)  Except as otherwise provided by Section 7.052 and 
notwithstanding Subsection (a) of this section, in determining the 
amount of an administrative penalty, the commission shall, to the 
extent practicable, ensure that the amount of the penalty is at 
least equal to the value of any economic benefit gained by the 
alleged violator through the violation if the executive director 
determines that the violation could have been avoided through 
reasonable and prudent action by the alleged violator.
	SECTION 2.  (a)  The change in law made by this Act applies 
only to a violation that occurs on or after the effective date of 
this Act.  For purposes of this section, a violation occurs before 
the effective date of this Act if any element of the violation 
occurs before that date.
	(b)  A violation that occurs before the effective date of 
this Act is covered by the law in effect on the date the violation 
occurred, and the former law is continued in effect for that 
purpose.
	SECTION 3.  This Act takes effect September 1, 2005.