Current through Reg. 49, No. 38; September 20, 2024
(a) The commissioner may recover a penalty of
not less than $50 or more than $1,000 for each day that a person constructs,
owns, operates, possesses, or exercises control over an unauthorized structure
or facility on state land.
(1) In determining
penalties to be assessed under the provisions of Texas Natural Resources Code,
§
51.302
and §
51.3021,
in performing duties and responsibilities imposed under Texas Natural Resources
Code, Chapters 33 and 51, the commissioner shall consider:
(A) the seriousness of the violation,
including the nature, circumstances, extent, and gravity of the violation and
the hazard and damage, including damage to natural resources, caused
thereby;
(B) the degree of
cooperation of the owner and operator once that person was given notice of the
violation;
(C) the degree of
culpability and the history of previous violations by the owner or
operator;
(D) the amount necessary
to deter future violations; and
(E)
any other matter relevant to a fair and just result.
(2) Penalties shall be assessed, in the
discretion of the commissioner, when any violation of Texas Natural Resources
Code, §
51.302
(concerning Prohibition and Penalty) and §51.3021 (concerning Removal of a
Facility or Structure by Commissioner) occurs. The amount of the minimum
penalty assessed shall be according to a penalty schedule, approved by the
commissioner with the concurrence of the School Land Board, and available for
public inspection and review. The commissioner retains the right to assess any
penalty amount depending upon the particular circumstances of the matter and in
accordance with this subsection.
(3) Prior to a final order of the
commissioner assessing a penalty or ordering the removal of an unauthorized
facility or structure, the owner or operator shall be entitled to a hearing.
The hearing shall be conducted in accordance with the provisions of Texas
Government Code, §
2001.001 et
seq.
(b) The
commissioner may remove and dispose of a facility or structure on state land if
the commissioner finds the facility or structure to be:
(1) not authorized by a proper easement,
lease, permit or other instrument from the state required by the Texas Natural
Resources Code, Chapter 33 or 51; or
(2) an imminent and unreasonable threat to
public health, safety, or welfare.
(c) An owner or operator is any person who
constructs, maintains, owns, or possesses the facility or structure and also
includes, in the case of an abandoned facility or structure, the person who
last owned, possessed, constructed, operated, or exercised control over the
facility or structure.
(d) At the
discretion of the commissioner, before any formal action is taken to impose a
penalty and/or remove a structure under the provisions of Texas Natural
Resources Code, §
51.302
and §
51.3021,
the owner or operator of the structure may be notified that the structure is
not in compliance with applicable statutory requirements and may be given a
reasonable period of time to bring the structure into compliance.
(e) To initiate formal action to impose a
penalty and/or remove a structure under the provisions of Texas Natural
Resources Code, §
51.302
and §
51.3021,
the deputy commissioner shall give written notice to the owner or operator of
the structure or facility stating:
(1) the
specific facility or structure that is not authorized by a proper easement,
lease, permit, or other instrument from the state required by the Texas Natural
Resources Code or that threatens the public health, safety, or
welfare;
(2) the nature of the
threat, if alleged, to public health, safety, or welfare;
(3) that the owner or operator of the
facility or structure shall remove the facility or structure:
(A) not later than the 30th day after the
date on which the notice is served, if the facility or structure is on state
land and not authorized by a proper lease, easement, permit, or other
instrument required by the Texas Natural Resources Code; or
(B) within a reasonable time specified by the
deputy commissioner if the facility or structure is an imminent and
unreasonable threat to public health, safety, or welfare;
(4) that failure to remove the facility or
structure may result in liability for a penalty under Texas Natural Resources
Code, §
51.302(b),
in an amount specified, removal by the commissioner and liability for the costs
of removal, attachment of a lien to the adjacent littoral property to secure
payment of the penalty and costs of removal, or any combination of such
remedies;
(5) that the owner or
operator of the facility or structure may submit, not later than the 30th day
after the date on which the notice is served, written request for a hearing by
serving written notice of such request to: Administrative Hearings Clerk, Texas
General Land Office, 1700 North Congress Avenue, Room 630, Austin, Texas
78701-1495.
(f) The
notice required by subsection (e) of this section must be given to the owner or
operator:
(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 owner or operator responsible is unknown, by posting a copy
of the notice on the facility or structure and by publishing notice in a
newspaper with general circulation in the county in which the facility or
structure is located two times within ten consecutive days.
