§ 40.254 — ORDERS AND HEARINGS.

Texas § 40.254

• Jurisdiction: Texas
• Code NR: Natural Resources Code

Text

Sec. 40.254. ORDERS AND HEARINGS. (a) The commissioner shall assess administrative penalties, pursue suspension of terminal facility discharge prevention and response certificates, and pursue the removal or disposal of derelict structures or vessels in accordance with this section.
(b) The commissioner shall issue a preliminary report if the commissioner, after an investigation, concludes that:
(1) a violation has occurred for which:
(A) a penalty should be assessed; or
(B) a discharge prevention and response certificate should be suspended; or
(2) there is a need for removal or disposal of a derelict vessel or structure.
(b-1) The preliminary report must:
(1) state the facts that support the commissioner's conclusion;
(2) in the case of a derelict vessel or structure, determine whether the vessel or structure is considered:
(A) a numbered vessel;
(B) a vessel or structure that has no intrinsic value; or
(C) a vessel or structure described by Section 40.108 (c)(1), (2), or (3);
(3) recommend:
(A) that a penalty be imposed;
(B) that a certificate be suspended;
(C) that a derelict vessel or structure be removed or disposed of;
(D) that a derelict vessel or structure be removed or disposed of because it is a vessel or structure described by Section 40.108 (c)(1), (2), or (3); or
(E) any combination of remedies under Paragraphs (A)-(D); and
(4) if a penalty under Subdivision (3)(A) is recommended, recommend the amount of the penalty.
(c) The commissioner shall serve written notice of the preliminary report to the person charged with the violation not later than the 10th day after the date on which the report is issued. The notice must include:
(1) a brief summary of the findings;
(2) a statement of the commissioner's recommendations;
(3) a statement of the right of the person charged with the violation to a hearing; and
(4) a copy of the preliminary report.
(c-1) Except as provided by Subsection (c-3), the notice required by Subsection (c) must be given:
(1) by service in person or by registered or certified mail, return receipt requested; or
(2) if personal service cannot be obtained or the address of the person is unknown, by posting a copy of the notice on the facility, vessel, or structure and by publishing notice on the Internet website of the General Land Office and in the Texas Register at least two times within 10 consecutive days.
(c-2) If notice is given in the manner provided by Subsection (c-1), not later than the 20th day after the date on which the notice is served or mailed, or not later than the 20th day after the later of the date on which the notice was posted or the last date the notice was published, as applicable, the person charged with the violation or a person claiming ownership of the facility, vessel, or structure may consent in writing to the report, including the commissioner's recommendations, or make a written request for a hearing.
(c-3) The notice required by Subsection (c) must be given by posting a copy of the notice on a derelict vessel or structure or by publishing notice on the Internet website of the General Land Office for 10 consecutive days if the derelict vessel or structure has been determined to have no intrinsic value under Subsection (b-1) and:
(1) the vessel or structure is not a numbered vessel or structure;
(2) there are no identifiable markings on the vessel or structure for which the current owner can be reasonably identified for service; or
(3) the address of the person charged with the violation is unknown.
(c-4) If notice is given in the manner provided by Subsection (c-3), not later than the 10th day after the date on which the notice was posted or the last date the notice was published, the person charged with the violation or a person claiming ownership of the vessel or structure may consent in writing to the report, including the commissioner's recommendations, or make a written request for a hearing.
(d) If a vessel or structure is removed without notice as authorized by Section 40.108 (c), the commissioner shall serve written notice of the removal to the person charged with the violation not later than the 10th day after the date on which the removal occurs. The removal notice must:
(1) include the information required to be in a preliminary report notice under Subsection (c); and
(2) be provided in the manner described by Subsection (c-1), except that notice provided under the circumstances described by Subsection (c-1)(2) is not required to be posted on the vessel or structure.
(d-1) If notice is given in the manner provided by Subsection (d), not later than the 20th day after the date on which the notice is served or mailed, or not later than the 20th day after the last date the notice was published, as applicable, the person charged with the violation or a person claiming ownership of the vessel or structure may consent in writing to the report, including the commissioner's recommendations, or make a written request for a hearing.
(e)(1) If the person charged with the violation or a person claiming ownership of a facility, vessel, or structure for which notice is provided under Subsection (c-1), (c-3), or (d) consents to the commissioner's recommendations or does not timely respond to the notice, the commissioner by order shall take the recommended action or order a hearing to be held on the findings and recommendations in the report.
(2) If the commissioner takes the recommended action, the commissioner shall serve written notice of the decision to the person in the same manner as provided for notice of the preliminary report. The person must comply with the order, including a removal order, and pay any penalty assessed.
(3) The commissioner is not required to provide notice under Subdivision (2) of this subsection if notice was provided under Subsection (c-1)(2), (c-3), or (d) and the subject of the notice is a vessel or structure that was removed in the manner provided by Section 40.108 .
(f)(1) If the person charged with the violation or a person claiming ownership of a facility, vessel, or structure for which notice is provided under Subsection (c-1), (c-3), or (d) requests a hearing, the commissioner shall order a hearing and shall give written notice of that hearing.
(2) The hearing shall be held by a hearing examiner designated by the commissioner.
(3) The hearing examiner shall make findings of fact and promptly issue to the commissioner a written decision as to the occurrence of the violation and a recommendation on suspension of the discharge prevention and response certificate, the amount of any proposed penalty, the removal or disposal of the derelict vessel or structure, or any combination of those remedies.
(4) Based on the findings of fact and the recommendations of the hearing examiner, the commissioner by order may:
(A) find that a violation has occurred and assess a penalty;
(B) suspend a discharge prevention and response certificate;
(C) order the removal or disposal of a derelict vessel or structure;
(D) order any combination of those remedies; or
(E) find that no violation occurred.
(5) The commissioner shall serve notice to the person of the commissioner's decision. If the commissioner finds that a violation has occurred and assesses a penalty, suspends a discharge prevention and response certificate, or orders the removal or disposal of a derelict vessel or structure, the commissioner shall give to the person written notice of:
(A) the commissioner's findings;
(B) the amount of the penalty or the terms of the suspension or removal or disposal; and
(C) the person's right to judicial review of the commissioner's order.
(g)(1) Not later than the 30th day after the date on which the commissioner's order is final, the person charged with the violation or a person claiming ownership of the facility, vessel, or structure shall comply with the order or file a petition for judicial review.
(2) On failure of the person to comply with the order or file a petition for judicial review, the commissioner may refer the matter to the attorney general for collection and enforcement.
(3) Judicial review of the order or decision of the commissioner shall be under Subchapter G , Chapter 2001 , Government Code.
(h)(1) If a penalty is reduced or not assessed, the commissioner shall remit to the person charged with the violation the appropriate amount of any penalty payment plus accrued interest.
(2) Accrued interest on amounts remitted by the commissioner shall be paid for the period beginning on the date the penalty is paid to the commissioner and ending on the date the penalty is remitted at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank.
(i) Payment of an administrative penalty under this section shall preclude, in any action brought under this chapter, collection of a civil penalty for the violation specified in the commissioner's order.

Legislative History

Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(53), eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, Sec. 13, 14, 16, eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 216 (H.B. 2096 ), Sec. 4, eff. September 1, 2005. Acts 2009, 81st Leg., R.S., Ch. 1324 (H.B. 3306 ), Sec. 3, eff. September 1, 2009. Acts 2017, 85th Leg., R.S., Ch. 259 (H.B. 1625 ), Sec. 2, eff. September 1, 2017. Acts 2017, 85th Leg., R.S., Ch. 259 (H.B. 1625 ), Sec. 3, eff. September 1, 2017. Acts 2017, 85th Leg., R.S., Ch. 259 (H.B. 1625 ), Sec. 4, eff. September 1, 2017. Acts 2017, 85th Leg., R.S., Ch. 259 (H.B. 1625 ), Sec. 5, eff. September 1, 2017.