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Texas Statutes (Last Updated: January 4, 2014) |
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WATER CODE |
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Title 2. WATER ADMINISTRATION |
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Subtitle B. WATER RIGHTS |
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Chapter 13. WATER RATES AND SERVICES |
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Subchapter K. VIOLATIONS AND ENFORCEMENT |
Sec. 13.4151. ADMINISTRATIVE PENALTY
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(a) If a person, affiliated interest, or entity subject to the jurisdiction of the commission violates this chapter or a rule or order adopted under this chapter, the commission may assess a penalty against that person, affiliated interest, or entity as provided by this section. The penalty may be in an amount not to exceed $5,000 a day. Each day a violation continues may be considered a separate violation.
(b) In determining the amount of the penalty, the commission shall consider:
(1) the nature, circumstances, extent, duration, and gravity of the prohibited acts or omissions;
(2) 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 person, affiliated interest, or entity to correct the cause of the violation;
(D) any economic benefit gained through the violation; and
(E) the amount necessary to deter future violations; and
(3) any other matters that justice requires.
(c) If, after examination of a possible violation and the facts surrounding that possible violation, the executive director concludes that a violation has occurred, the executive director may issue a preliminary report stating the facts on which that conclusion is based, recommending that a penalty under this section be imposed on the person, affiliated interest, or retail public utility charged, and recommending the amount of that proposed penalty. The executive director shall base the recommended amount of the proposed penalty on the factors provided by Subsection (b) of this section, and shall analyze each factor for the benefit of the commission.
(d) Not later than the 10th day after the date on which the report is issued, the executive director shall give written notice of the report to the person, affiliated interest, or retail public utility charged with the violation. The notice shall include a brief summary of the charges, a statement of the amount of the penalty recommended, and a statement of the right of the person, affiliated interest, or retail public utility charged to a hearing on the occurrence of the violation, the amount of the penalty, or both.
(e) Not later than the 20th day after the date on which notice is received, the person, affiliated interest, or retail public utility charged may give the commission written consent to the executive director's report, including the recommended penalty, or may make a written request for a hearing.
(f) If the person, affiliated interest, or retail public utility charged with the violation consents to the penalty recommended by the executive director or fails to timely respond to the notice, the commission by order shall assess that penalty or order a hearing to be held on the findings and recommendations in the executive director's report. If the commission assesses the penalty recommended by the report, the commission shall give written notice to the person, affiliated interest, or retail public utility charged of its decision.
(g) If the person, affiliated interest, or retail public utility charged requests or the commission orders a hearing, the commission shall call a hearing and give notice of the hearing. As a result of the hearing, the commission by order may find that a violation has occurred and may assess a civil penalty, may find that a violation has occurred but that no penalty should be assessed, or may find that no violation has occurred. All proceedings under this subsection are subject to Chapter 2001, Government Code. In making any penalty decision, the commission shall analyze each of the factors provided by Subsection (b) of this section.
(h) The commission shall give notice of its decision to the person, affiliated interest, or retail public utility charged, and if the commission finds that a violation has occurred and has assessed a penalty, the commission shall give written notice to the person, affiliated interest, or retail public utility charged of its findings, of the amount of the penalty, and of the person's, affiliated interest's, or retail public utility's right to judicial review of the commission's order. If the commission is required to give notice of a penalty under this subsection or Subsection (f) of this section, the commission shall file notice of its decision in the Texas Register not later than the 10th day after the date on which the decision is adopted.
(i) Within the 30-day period immediately following the day on which the commission's order is final, as provided by Subchapter F, Chapter 2001, Government Code, the person, affiliated interest, or retail public utility charged with the penalty shall:
(1) pay the penalty in full; or
(2) if the person, affiliated interest, or retail public utility seeks judicial review of the fact of the violation, the amount of the penalty, or both:
(A) forward the amount of the penalty to the commission for placement in an escrow account; or
(B) post with the commission a supersedeas bond in a form approved by the commission for the amount of the penalty to be effective until all judicial review of the order or decision is final.
(j) Failure to forward the money to or to post the bond with the commission within the time provided by Subsection (i) of this section constitutes a waiver of all legal rights to judicial review. If the person, affiliated interest, or retail public utility charged fails to forward the money or post the bond as provided by Subsection (i) of this section, the commission or the executive director may forward the matter to the attorney general for enforcement.
(k) Judicial review of the order or decision of the commission assessing the penalty shall be under the substantial evidence rule and may be instituted by filing a petition with a district court in Travis County, as provided by Subchapter G, Chapter 2001, Government Code.
(l) A penalty collected under this section shall be deposited in the state treasury to the credit of the general revenue fund.
(m) Notwithstanding any other provision of law, the commission may compromise, modify, extend the time for payment of, or remit, with or without condition, any penalty imposed under this section.
(n) Payment of a penalty under this section is full and complete satisfaction of the violation for which the penalty is assessed and precludes any other civil or criminal penalty for the same violation.