The Red Book
Selected Texas Laws on Subdivisions,
Colonias, Etc.-2001
Local Government Code: Part I
Local Government Code: Part II: Chapter 232
Local Government Code: Part III
Property Code
Water Code
Health and Safety Code
Miscellaneous

CHAPTER 7. ENFORCEMENT

(SELECTED EXCERPTS)

SUBCHAPTER A. GENERAL PROVISIONS


7.001. Definitions

In this chapter:

    (1) "Commission" means the Texas Natural Resource Conservation Commission.
    (2) "Permit" includes a license, certificate, registration, approval, or other form of authorization. This definition does not apply to Subchapter G.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.002. Enforcement Authority

The commission may initiate an action under this chapter to enforce provisions of this code and the Health and Safety Code within the commission's jurisdiction as provided by Section 5.013 of this code and rules adopted under those provisions. The commission or the executive director may institute legal proceedings to compel compliance with the relevant provisions of this code and the Health and Safety Code and rules, orders, permits, or other decisions of the commission.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


Note: 5.013, referred to in 7.002, states:

5.013. General Jurisdiction of Commission

    (a) The commission has general jurisdiction over:
      (1)  water and water rights including the issuance of water rights permits, water rights adjudication, cancellation of water rights, and enforcement of water rights;
      (2) continuing supervision over districts created under Article III, Sections 52(b)(1) and (2), and Article XVI, Section 59, of the Texas Constitution;
      (3) the state's water quality program including issuance of permits, enforcement of water quality rules, standards, orders, and permits, and water quality planning;
      (4) the determination of the feasibility of certain federal projects;
      (5)  the adoption and enforcement of rules and performance of other acts relating to the safe construction, maintenance, and removal of dams;
      (6)  conduct of the state's hazardous spill prevention and control program;
      (7)  the administration of the state's program relating to inactive hazardous substance, pollutant, and contaminant disposal facilities;
      (8)  the administration of a portion of the state's injection well program;
      (9)  the administration of the state's programs involving underground water and water wells and drilled and mined shafts;
      (10)  the state's responsibilities relating to regional waste disposal;
      (11)  the responsibilities assigned to the commission by Chapters 361, 363, 382, 401, and 402, Health and Safety Code;
      (12)  the administration of the national flood insurance program;
      (13)  administration of the state's water rate program under Chapter 13 of this code; and
      (14)  any other areas assigned to the commission by this code and other laws of this state.

    (b)  The rights, powers, duties, and functions delegated to the Texas Department of Water Resources by this code or by any other law of this state that are not expressly assigned to the board are vested in the commission.

    (c) This section allocates among various state agencies statutory authority delegated by other laws. This section does not delegate legislative authority.

Amended by Acts 1985, 69th Leg., ch. 795, 1.001, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 14, 284(75), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, 1.005, eff. Aug. 12, 1991.

Amended by SB 1175 and HB 2912, eff. Sept. 1, 2001.


SUBCHAPTER B. CORRECTIVE ACTION AND INJUNCTIVE RELIEF

7.032. Injunctive Relief

    (a)  The executive director may enforce a commission rule or a provision of a permit issued by the commission by injunction or other appropriate remedy.

    (b)  If it appears that a violation or threat of violation of a statute within the commission's jurisdiction or a rule adopted or an order or a permit issued under such a statute has occurred or is about to occur, the executive director may have a suit instituted in district court for injunctive relief to restrain the violation or threat of violation.

    (c)  The suit may be brought in the county in which the defendant resides or in the county in which the violation or threat of violation occurs.

    (d)  In a suit brought under this section to enjoin a violation or threat of violation described by Subsection (b), the court may grant the commission, without bond or other undertaking, any prohibitory or mandatory injunction the facts may warrant, including a temporary restraining order and, after notice and hearing, a temporary injunction or permanent injunction.

    (e)  On request of the executive director, the attorney general or the prosecuting attorney in a county in which the violation occurs shall initiate a suit in the name of the state for injunctive relief. The suit may be brought independently of or in conjunction with a suit under Subchapter D.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


SUBCHAPTER D. CIVIL PENALTIES

7.101. Violation

A person may not cause, suffer, allow, or permit a violation of a statute within the commission's jurisdiction or a rule adopted or an order or permit issued under such a statute.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.102. Maximum Penalty

A person who causes, suffers, allows, or permits a violation of a statute, rule, order, or permit relating to Chapter 34, or 37 of this code or Chapter 366, 371, or 372, Health and Safety Code, shall be assessed for each violation a civil penalty not less than $50 nor greater than $5,000 for each day of each violation as the court or jury considers proper. A person who causes, suffers, allows, or permits a violation of a statute, rule, order, or permit relating to any other matter within the commission's jurisdiction to enforce, other than violations of Chapter 11, 12, 13, 16, or 36 of this code, or Chapter 341, Health and Safety Code, shall be assessed for each violation a civil penalty not less than $50 nor greater than $25,000 for each day of each violation as the court or jury considers proper. Each day of a continuing violation is a separate violation.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.
Amended by SB 1175 and HB 3111, eff. Sept. 1, 2001.


7.103. Continuing Violations

If it is shown on a trial of a defendant that the defendant has previously been assessed a civil penalty for a violation of a statute within the commission's jurisdiction or a rule adopted or an order or a permit issued under such a statute within the year before the date on which the violation being tried occurred, the defendant shall be assessed a civil penalty not less than $100 nor greater than $25,000 for each subsequent day and for each subsequent violation. Each day of a continuing violation is a separate violation.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.104. No Penalty for Failure to Pay Certain Fees

A civil penalty may not be assessed for failure to:

    (1)  pay a fee under Section 371.062, Health and Safety Code; or
    (2)  file a report under Section 371.024, Health and Safety Code.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.105. Civil Suit

    (a)  On the request of the executive director or the commission, the attorney general shall institute a suit in the name of the state for injunctive relief under Section 7.032, to recover a civil penalty, or for both injunctive relief and a civil penalty.

    (b)  The commission, through the executive director, shall refer a matter to the attorney general's office for enforcement through civil suit if a person:

      (1)  is alleged to be making or to have made an unauthorized discharge of waste into or adjacent to the waters in the state at a new point of discharge without a permit in violation of state law;
      (2)  has been the subject of two or more finally issued administrative penalty orders for violations of Chapter 26 occurring at the same wastewater management system or other point of discharge within the two years immediately preceding the date of the first alleged violation currently under investigation at that site;
      (3)  is alleged to be operating a new solid waste facility, as defined in Section 361.003, Health and Safety Code, without a permit in violation of state law;
      (4)  has been the subject of two or more finally issued administrative penalty orders for violations of Chapter 361, Health and Safety Code, occurring at the same facility within the two years immediately preceding the date of the first alleged violation currently under investigation at that site;
      (5)  is alleged to be constructing or operating a facility at a new plant site without a permit required by Chapter 382, Health and Safety Code, in violation of state law; or
      (6)  has been the subject of two or more finally issued administrative penalty orders for violations of Chapter 382, Health and Safety Code, for violations occurring at the same plant site within the two years immediately preceding the date of the first alleged violation currently under investigation at that site.

    (c) The suit may be brought in Travis County, in the county in which the defendant resides, or in the county in which the violation or threat of violation occurs.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.106. Resolution Through Administrative Order

The attorney general's office and the executive director may agree to resolve any violation, before or after referral, by an administrative order issued under Subchapter C by the commission with the approval of the attorney general.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.107. Division of Civil Penalty

Except in a suit brought for a violation of Chapter 28 of this code or of Chapter 401, Health and Safety Code, a civil penalty recovered in a suit brought under this subchapter by a local government shall be equally divided between:

    (1)  the state; and
    (2)  the local government that brought the suit.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.108. Attorney's Fees

If the state prevails in a suit under this subchapter it may recover reasonable attorney's fees, court costs, and reasonable investigative costs incurred in relation to the proceeding.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


SUBCHAPTER E. CRIMINAL OFFENSES AND PENALTIES

7.143. Violation of Minimum State Standards or Model Political Subdivision Rules

    (a)  A person commits an offense if the person knowingly or intentionally violates a rule adopted under Subchapter J, Chapter 16.

    (b)  An offense under this section is a Class A misdemeanor.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.173. Violation Relating to Sewage Disposal

    (a)  A person commits an offense if the person violates a rule adopted by the commission under Chapter 366, Health and Safety Code, or an order or resolution adopted by an authorized agent under Subchapter C, Chapter 366, Health and Safety Code.

    (b)  Except as provided by this subsection, an offense under this section is a Class C misdemeanor. If it is shown on the trial of the defendant that the defendant has been previously convicted of an offense under this section, the offense is punishable under Section 7.187(1)(A) or Section 7.187(2)(A) or both.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 824, 1, eff. Sept. 1, 1999.


7.174. Violation of Sewage Disposal System Permit Provision

    (a)  A person commits an offense if the person begins to construct, alter, repair, or extend an on-site sewage disposal system owned by another person before the owner of the system obtains a permit to construct, alter, repair, or extend the on-site sewage disposal system as required by Subchapter D, Chapter 366, Health and Safety Code.

    (b)  Except as provided by this subsection, an offense under this section is a Class C misdemeanor. If it is shown on the trial of the defendant that the defendant has previously been convicted of an offense under this section, the offense is punishable under Section 7.187(1)(A) or Section 7.187(2)(A) or both.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.175. Emergency Repair Not an Offense

An emergency repair to an on-site sewage disposal system without a permit in accordance with the rules adopted under Section 366.012(a)(1)(C), Health and Safety Code, is not an offense under Section 7.172, 7.173, or 7.174 if a written statement describing the need for the repair is provided to the commission or its authorized agent not later than 72 hours after the repair is begun.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.186. Separate Offenses

Each day a person engages in conduct proscribed by this subchapter constitutes a separate offense.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.187. Penalties

A person convicted of an offense under this subchapter is punishable by:

    (1)  a fine, as imposed under the section creating the offense, of:
      (A)  not more than $1,000;
      (B)  not less than $1,000 or more than $50,000;
      (C)  not less than $1,000 or more than $100,000;
      (D)  not less than $1,000 or more than $250,000;
      (E)  not less than $2,000 or more than $500,000;
      (F)  not less than $5,000 or more than $1,000,000;
      (G)  not less than $10,000 or more than $1,500,000; or
      (H)  not more than twice the amount of the required fee;
    (2)  confinement for a period, as imposed by the section creating the offense, not to exceed:
      (A)  30 days;
      (B)  90 days;
      (C)  180 days;
      (D)  one year;
      (E)  two years;
      (F)  five years;
      (G)  10 years;
      (H)  15 years;
      (I)  20 years; or
      (J)  30 years; or
    (3)  both fine and confinement, as imposed by the section creating the offense.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.188. Repeat Offenses

If it is shown at the trial of the defendant that the defendant has previously been convicted of the same offense under this subchapter, the maximum punishment is doubled with respect to both the fine and confinement, unless the section creating the offense specifies otherwise.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.189. Venue

Venue for prosecution of an alleged violation under this subchapter is in:

    (1) the county in which the violation is alleged to have occurred;
    (2) the county where the defendant resides;
    (3) if the alleged violation involves the transportation of a discharge, waste, or pollutant, any county to which or through which the discharge, waste, or pollutant was transported; or
    (4) Travis County.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997


7.190. Disposition of Fines

A fine recovered through a prosecution brought under this subchapter shall be divided equally between the state and any local government significantly involved in prosecuting the case, except that if the court determines that the state or the local government bore significantly more of the burden of prosecuting the case, the court may apportion up to 75 percent of the fine to the government that predominantly prosecuted the case.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


SUBCHAPTER H. SUIT BY OTHERS

7.351. Civil Suits

    (a) If it appears that a violation or threat of violation of Chapter 16, 26, 28, or 34 of this code or Chapter 361, 371, 372, or 382, Health and Safety Code, or a provision of Chapter 401, Health and Safety Code, under the commission's jurisdiction or a rule adopted or an order or a permit issued under those chapters or provisions has occurred or is occurring in the jurisdiction of a local government, the local government or, in the case of a violation of Chapter 401, Health and Safety Code, a person affected as defined in that chapter, may institute a civil suit under Subchapter D in the same manner as the commission in a district court by its own attorney for the injunctive relief or civil penalty, or both, as authorized by this chapter against the person who committed, is committing, or is threatening to commit the violation.

    (b) If it appears that a violation or threat of violation of Chapter 366, Health and Safety Code, under the commission's jurisdiction or a rule adopted or an order or a permit issued under that chapter has occurred or is occurring in the jurisdiction of a local government, an authorized agent as defined in that chapter may institute a civil suit under Subchapter D in the same manner as the commission in a district court by its own attorney for the injunctive relief or civil penalty, or both, as authorized by this chapter against the person who committed, is committing, or is threatening to commit the violation.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 193, 1, eff. Sept. 1, 1999.


7.352. Resolution Required

In the case of a violation of Chapter 26 of this code or Chapter 382, Health and Safety Code, a local government may not exercise the enforcement power authorized by this subchapter unless its governing body adopts a resolution authorizing the exercise of the power.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


7.353. Commission Necessary Party

In a suit brought by a local government under this subchapter, the commission is a necessary and indispensable party.

Added by Acts 1997, 75th Leg., ch. 1072, 2, eff. Sept. 1, 1997.


CHAPTER 15. TEXAS WATER ASSISTANCE PROGRAM

SUBCHAPTER P. COLONIA SELF-HELP PROGRAM

Section
15.951. Definitions.
15.952. Creation of Account.
15.953. Use of Account.
15.954. Eligible Nonprofit Organizations.
15.955. Grant Application.
15.956. Board Considerations in Evaluating Grant Application.
15.957. Action on Grant Application.
15.958. Rules.
15.959. Co-administration.


15.951. Definitions

In this subchapter:

    (1) "Account" means the colonia self-help account.
    (2) "Colonia" means a geographic area that:
      (A) is an economically distressed area as defined by Section 17.921; and
      (B) is located in a county any part of which is within 50 miles of an international border.
    (3) "Program" means the colonia self-help program established under this subchapter.
    (4) "Retail public utility" has the meaning assigned by Section 13.002.
    (5) "Self-help project" means a project in which the people who will benefit from the project actively participate.

Added by SB 312, eff. Sept. 1, 2001.


 15.952. Creation of Account

    (a) The colonia self-help account is an account in the general revenue fund that may be appropriated only for the purposes of this subchapter.
    (b) The account consists of:
      (1) money transferred by the legislature directly to the account;
      (2) money transferred at the board's discretion from the fund;
      (3) gifts, grants, or donations to the account; and
      (4) interest earned on money credited to the account.
    (c) Sections 403.095 and 404.071, Government Code, do not apply to the account.

Added by SB 312, eff. Sept. 1, 2001.


15.953. Use of Account

    (a)  The board may use funds in the account only to reimburse nonprofit organizations eligible under Section 15.954 for expenses incurred in a self-help project that results in the provision of adequate water or wastewater services to a colonia. Expenses that may be reimbursed include:
      (1) construction expenses;
      (2)  facility planning expenses;
      (3) platting expenses;
      (4) surveying expenses;
      (5) engineering expenses;
      (6) equipment expenses; and
      (7) other expenses necessary to provide water or wastewater services to the colonia, as determined appropriate by the board.

    (b)  The board may award a grant under the program directly to a nonprofit organization to reimburse the organization for expenses incurred in a self-help project described by Subsection (a).

Added by SB 312, eff. Sept. 1, 2001.


15.954. Eligible Nonprofit Organizations

To be eligible to receive a grant under the program, an organization must:

    (1)  apply for the grant;
    (2)  qualify for an exemption from federal income taxes under Section 501(c)(3), Internal Revenue Code of 1986, as amended; and
    (3)  as of January 1, 2001, have a demonstrated record of completing in coordination with a retail public utility construction of self-help projects described by Section 15.953(a).

Added by SB 312, eff. Sept. 1, 2001.


15.955. Grant Application

An eligible nonprofit organization must apply to the board for a grant under the program before incurring any expense associated with a self-help project described by Section 15.953(a). The application must include:

    (1)  the name of the nonprofit organization, the names of the organization's principal officers, and verification of the organization's 501(c)(3) status;
    (2)  a description of the project area, the anticipated number of water and wastewater connections to be made, and the anticipated number of colonia residents to be served;
    (3)  a description of the existing water and wastewater facilities in the colonia;
    (4)  a description of the project and the aspect of the project for which the grant will be used;
    (5)  a description of the anticipated participation in the project by residents of the colonia;
    (6)  the estimated total cost of both the project and the aspect of the project for which the grant will be used;
    (7)  the amount of the grant that is requested from the account and the sources of funding for the entire project;
    (8)  from a retail public utility authorized to provide water or wastewater services to the colonia, a resolution in which the retail public utility:
      (A) agrees to inspect the project during and after construction to ensure the adequacy of the project; and
      (B) commits to provide the water or wastewater services that the project intends to use;
    (9)and any other information required by the board.

Added by SB 312, eff. Sept. 1, 2001.


15.956. Board Considerations in Evaluating Grant Application

In evaluating an application for a grant under the program, the board shall consider:

    (1) the number, quality, and character of projects previously completed by the applicant; and
    (2) the capability of the retail public utility to provide water or wastewater services to the colonia on completion of the project.

Added by SB 312, eff. Sept. 1, 2001.


 15.957. Action on Grant Application

(a)  Not later than the 60th day after the date the board receives a complete application for a grant under the program, the board by written resolution shall:

    (1) approve the application; or
    (2) disapprove the application.

(b)  On approval of an application, the board shall authorize the executive administrator of the board to execute a contract with the applicant for a grant to reimburse eligible expenses. The contract may provide a budget, schedule, terms for payment of funds, and any other terms the board or its executive administrator considers appropriate.

Added by SB 312, eff. Sept. 1, 2001.


15.958. Rules

The board shall adopt rules necessary to administer the program established under this subchapter.

Added by SB 312, eff. Sept. 1, 2001.


15.959. Co-administration

The program shall be co-administered by the office of the secretary of state until the second anniversary of the date on which the program begins operations under this subchapter.

Added by SB 312, eff. Sept. 1, 2001.


CHAPTER 16. PROVISIONS GENERALLY APPLICABLE TO WATER DEVELOPMENT

SUBCHAPTER I. FLOOD INSURANCE

(Selected Excerpts)

16.313. Definitions

In this subchapter:

    (1)  "Political subdivision" means any political subdivision or body politic and corporate of the State of Texas and includes any county, river authority, conservation and reclamation district, water control and improvement district, water improvement district, water control and preservation district, fresh water supply district, irrigation district, and any type of district heretofore or hereafter created or organized or authorized to be created or organized pursuant to the provisions of Article XVI, Section 59 or Article III, Section 52 of the Constitution of the State of Texas; "political subdivision" also means any interstate compact commission to which the State of Texas is a party, municipal corporation, or city whether operations under the Home Rule Amendment of the Constitution or under the General Law.
    (2) "National Flood Insurance Act" means the National Flood Insurance Act of 1968, as amended (42 U.S.C. Sections 4001 through 4127), and the implementation and administration of the Act by the director of the Federal Emergency Management Agency.
    (3)  "Director" means the director of the Federal Emergency Management Agency.

Amended by Act 1977, 65th Leg., p. 2207, ch. 870, 1, eff. Sept. 1, 1988.
Amended by SB 936, eff. Sept. 1, 2001.


16.3145. National Flood Insurance Program Orders or Ordinances

The governing body of each city and county shall adopt ordinances or orders, as appropriate, necessary for the city or county to be eligible to participate in the National Flood Insurance Program.

Added by Acts 1999, 76th Leg., ch. 1360, 1, eff. Aug. 30, 1999.


 16.315. Political Subdivisions; Compliance with Federal Requirements

All political subdivisions are hereby authorized to take all necessary and reasonable actions to comply with the requirements and criteria of the National Flood Insurance Program, including but not limited to:

    (1) making appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses;
    (2) guiding the development of proposed future construction, where practicable, away from a locationwhich is threatened by flood hazards;
    (3) assisting in minimizing damage caused by floods;
    (4) authorizing and engaging in continuing studies of flood hazards in order to facilitate a constant reappraisal of the flood insurance program and its effect on land use requirements;
    (5) engaging in floodplain management and adopting and enforcing permanent land use and control measures consistent with the criteria established under the National Flood Insurance Act;
    (6) declaring property, when such is the case, to be in violation of local laws, regulations, or ordinances which are intended to discourage or otherwise restrict land development or occupancy in flood-prone areas and notifying the director, or whomever the director designates, of such property;
    (7) consulting with, giving information to, and entering into agreements with the Federal Emergency Management Agency for the purpose of:
      (a)  identifying and publishing information with respect to all flood areas, including coastal areas; and
      (b)  establishing flood-risk zones in all such areas and making estimates with respect to the rates of probable flood-caused loss for the various flood-risk zones for each of these areas;
    (8)  cooperating with the director's studies and investigations with respect to the adequacy of local measures in flood-prone areas as to land management and use, flood control, flood zoning, and flood damage prevention;
    (9)  taking steps, using regional, watershed, and multi-objective approaches, to improve the long-range management and use of flood-prone areas;
    (10)  purchasing, leasing, and receiving property from the director when such property is owned by the federal government and lies within the boundaries of the political subdivision pursuant to agreements with the Federal Emergency Management Agency or other appropriate legal representative of the United States Government;
    (11) requesting aid pursuant to the entire authorization from the commission;
    (12)  satisfying criteria adopted and promulgated by the commission pursuant to the National Flood Insurance Program;
    (13) adopting permanent land use and control measures with enforcement provisions which are consistent with the criteria for land management and use adopted by the director;
    (14) adopting more comprehensive floodplain management rules that the political subdivision determines are necessary for planning and appropriate to protect public health and safety;
    (15) participating in floodplain management and mitigation initiatives such as the National Flood Insurance Program's Community Rating System, Project Impact, or other initiatives developed by federal, state, or local government; and
    (16)  collecting reasonable fees to cover the cost of administering a local floodplain management program.

Amended by Act 1977, 65th Leg., p. 2207, ch. 870, 1. eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, 1.051, eff. Sept. 1, 1985. Amended by SB 936, eff. Sept. 1, 2001.


16.322. Civil Penalty

A person who violates this subchapter or a rule adopted or ordered issued under this subchapter is subject to a civil penalty of not more than $100 for each act of violation and for each day of violation.

Added by Acts 1997, 75th Leg., ch. 1346, 1, eff. Sept. 1, 1997.


16.3221. Criminal Penalty

    (a) A person commits an offense if the person violates this subchapter.

    (b) An offense under this section is a Class C misdemeanor.

    (c) Each violation of this subchapter and each day of a continuing violation is a separate offense.

Added by SB 936, eff. Sept. 1, 2001.


16.323. Enforcement by Political Subdivision

    (a) If it appears that a person has violated, is violating, or is threatening to violate this subchapter or a rule adopted or order issued under this subchapter, a political subdivision may institute a civil suit in the appropriate court for:
      (1) injunctive relief to restrain the person from continuing the violation or threat of violation, including an order directing the person to remove illegal improvements and restore preexisting conditions;
      (2) the assessment and recovery of the civil penalty provided by Section 16.322; or
      (3) both the injunctive relief and the civil penalty.

    (b) On application for injunctive relief and a finding that a person has violated, is violating, or is threatening to violate this subchapter or a rule adopted or order issued under this subchapter, the court shall grant the injunctive relief that the facts warrant.

Added by Acts 1977, 75th Leg., ch. 1346, 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 124, 1, eff. May 20, 1999. Amended by SB 936, eff. Sept. 1, 2001.


16.324. County Authority to Set Fee

The commissioners court of a county may set a reasonable fee for the county's issuance of a permit authorized by this subchapter for which a fee is not specifically prescribed. The fee must be set and itemized in the county's budget as part of the budget preparation process.

Added by SB 1308, eff. Sept. 1, 2001.


SUBCHAPTER J. ECONOMICALLY DISTRESSED AREAS

16.341. Definitions

In this subchapter:

    (1) "Affected county" means a county:
      (A) that has a per capita income that averaged 25 percent below the state average for the most recent three consecutive years for which statistics are available and an unemployment rate that averaged 25 percent above the state average for the most recent three consecutive years for which statistics are available; or
      (B) that is adjacent to an international border.
    (2) "Economically distressed area" means an area in which:
      (A) water supply or sewer services are inadequate to meet minimal needs of residential users as defined by board rules;
      (B) financial resources are inadequate to provide water supply or sewer services that will satisfy those needs; and
      (C) an established residential subdivision was located on June 1, 1989, as determined by the board.
    (3) "Political subdivision" means an affected county, a municipality located in an affected county, a district or authority created under Article III, Section 52, or Article XVI, Section 59, of the Texas Constitution, located in an affected county, or a nonprofit water supply corporation created and operating under Chapter 67, located in an affected county, that receives funds for facility engineering under Section 15.407 or financial assistance under Subchapter K, Chapter 17, or an economically distressed area in an affected county for which financial assistance is received under Subchapter C, Chapter 15.
    (4) "Sewer services" or "sewer facilities" means treatment works as defined by Section 17.001 of this code or individual, on-site, or cluster treatment systems such as septic tanks and includes drainage facilities and other improvements for proper functioning of septic tank systems.

Added by Acts 1989, 71st Leg., ch. 624, 2.13. Amended by Acts 1999, 76th Leg., ch. 62, 18.59, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 404, 33, eff. Sept. 1, 1999.


16.342. Rules

    (a) The board shall adopt rules that are necessary to carry out the program provided by Subchapter K, Chapter 17, of this code and rules:
      (1) incorporating existing minimum state standards and rules for water supply and sewer services established by the commission; and
      (2) requiring compliance with existing rules of any state agency relating to septic tanks and other waste disposal systems.

    (b) In developing rules under this section, the board shall examine other existing laws relating to counties and municipalities.

Added by Acts 1989, 71st Leg., ch. 624, 2.13. Amended by Acts 1995, 74th Leg., ch. 76, 11.289, eff. Sept. 1, 1995.


16.343. Minimum State Standards and Model Political Subdivision Rules

    (a) The board shall, after consultation with the attorney general and the commission, prepare and adopt model rules to assure that minimum standards for safe and sanitary water supply and sewer services in residential areas of political subdivisions, including rules of any state agency relating to septic tanks and other waste disposal systems, are met.

    (b) The model rules must:

      (1) assure that adequate drinking water is available to the residential areas in accordance with Chapter 341, Health and Safety Code, and the Rules and Regulations for Public Water Systems and the Drinking Water Standards Governing Water Quality and Reporting Requirements for Public Water Supply Systems adopted by the Texas Board of Health and other law and rules applicable to drinking water; and
      (2) provide criteria applicable to tracts that were divided into two or more parts to lay out a subdivision and were not platted or recorded before September 1, 1989.

    (c) The model rules must:

      (1) assure that adequate sewer facilities are available to the residential areas through either septic tanks or an organized sewage disposal system that is a publicly or privately owned system for the collection, treatment, and disposal of sewage operated in accordance with the terms and conditions of a valid waste discharge permit issued by the commission or private sewage facilities in accordance with Chapter 366, Health and Safety Code, and the Construction Standards for On-Site Sewerage Facilities adopted by the commission and other law and rules applicable to sewage facilities; and
      (2) provide criteria applicable to tracts that were divided into two or more parts to lay out a subdivision and were not platted or recorded before September 1, 1989.

    (d) The model rules must prohibit the establishment of residential developments with lots of five acres or less in the political subdivision without adequate water supply and sewer services. Also, the model rules must prohibit more than one single-family, detached dwelling to be located on each lot.

    (e) The model rules must provide criteria governing the distance that structures must be set back from roads or property lines to ensure proper operation of water supply and sewer services and to reduce the risk of fire hazards.

    (f) Notwithstanding any other law to the contrary, the only kind of county that may adopt the model rules is an affected county.*

    (g) Before an application for funds under Section 15.407 or Subchapter P, Chapter 15, or Subchapter K, Chapter 17, may be considered by the board, a political subdivision must adopt the model rules pursuant to this section. If the applicant is a district, nonprofit water supply corporation, or colonia, the applicant must be located in a city or county that has adopted such rules. Applicants for funds under Section 15.407 or Subchapter P, Chapter 15, or Subchapter K, Chapter 17, may not receive funds under those provisions unless the applicable political subdivision adopts and enforces the model rules.

*Note: Subsection (f) was enacted in 1989. Subsequent legislation has overridden this restriction by expanding the counties where the model rules may be adopted. Local Govt. Code 232.030(b), enacted in 1995, requires that all Subchapter B counties adopt and enforce the model rules. A 1999 amendment to Local Govt. Code 232.022 expanded Subchapter B counties to include all those with any part within 50 miles of an international border, irrespective of income and unemployment.

Added by Acts 1989, 71st Leg., ch. 624, 2.13. Amended by Acts 1991, 72nd Leg., ch. 14, 284(71), (78), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 422, 5, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 648, 4, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, 11.290, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 979, 15, eff. June 16, 1995; Acts 1999, 76th Leg., ch. 404, 34, eff. Sept. 1, 1999.
Amended by SB 312, eff. Sept. 1, 2001.


16.344. Oversight

    (a)  The board shall monitor the performance of a political subdivision that receives financial assistance under Subchapter K, Chapter 17, of this code to ensure that the project approved in the application and plans is constructed in the manner described in the application and plans and that the terms and conditions that govern the financial assistance are satisfied.

    (b)  A political subdivision that receives financial assistance shall submit to the board monthly or as often as otherwise required by board rules an account of expenditures for the project during the preceding month or other required period.

    (c)  A political subdivision that receives financial assistance shall furnish at the board's request additional information necessary for the board to monitor compliance with the approved application and plan for financial assistance and the terms and conditions of the financial assistance.

Added by Acts 1989, 71st Leg., ch. 624, 2.13.


16.345. Authority to Participate in Program

    (a)  A political subdivision may exercise any authority necessary to participate in a program under Section 15.407 of this code or Subchapter K, Chapter 17, of this code and carry out the terms and conditions under which the funds or the financial assistance is provided.

    (b)  In addition to any other authority to issue bonds or other obligations or incur any debt, an affected county or another political subdivision, other than a nonprofit water supply corporation, eligible for financial assistance under Subchapter K, Chapter 17, of this code may issue bonds payable from and secured by a pledge of the revenues derived or to be derived from the operation of water supply or sewer service systems for the purpose of acquiring, constructing, improving, extending, or repairing water supply or sewer facilities. The bonds shall be issued in accordance with and an affected county or another political subdivision may exercise the powers granted by:

      (1)  Subchapter B, Chapter 1502, Government Code;
      (2)  Chapter 1201, Government Code;
      (3)  Chapter 1371, Government Code; and
      (4)  other laws of the state.

Added by Acts 1989, 71st Leg., ch. 624, 2.13. Amended by Acts 1999, 76th Leg., ch. 404, 35, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1064, 44, eff. Sept. 1, 1999.


16.346. Examination of Ability of a District to Provide Services and Financing

    (a)  In connection with an application under Subchapter K, Chapter 17, of this code, the board may consider and make any necessary investigations and inquiries as to the feasibility of creating a conservation and reclamation district under Article XVI, Section 59, of the Texas Constitution to provide, in lieu of financial assistance under the application, water supply and sewer services in the area covered by the application through issuance of district bonds to be sold on the regular bond market.

    (b)  In carrying out its authority under this section, the board may require the applicant to provide necessary information to assist the board in making a determination as to the feasibility of creating a district to provide the services and financing covered by the application.

Added by Acts 1989, 71st Leg., ch. 624, 2.13.


16.347. Requirement of Imposition of Distressed Areas Water Financing Fee

    (a)  In this section:
      (1)  "Distressed areas water financing fee" means a fee imposed by a political subdivision on undeveloped property.
      (2)  "Undeveloped property" means a tract, lot, or reserve in an area in a political subdivision to be served by water supply or sewer services financed in whole or in part with financial assistance from the board under Subchapter K, Chapter 17, of this code for which a plat has been filed under Subchapter A, Chapter 212, or Chapter 232, Local Government Code.

    (b)  The board may require, as a condition for granting an application for financial assistance under Subchapter K, Chapter 17, of this code to a political subdivision in which a plat is required to be filed under Subchapter A, Chapter 12, or Chapter 232, Local Government Code, that the applicant impose a distressed areas water financing fee on undeveloped property in the political subdivision if the board determines that imposition of the fee would:

      (1)  reduce the amount of any financial assistance that the board may provide to accomplish the purposes of the political subdivision under the application; or
      (2)  assist the political subdivision to more effectively retire any debt undertaken by the political subdivision in connection with financial assistance made available by the board to the political subdivision.

Added by Acts 1989, 71st Leg., ch. 624, 2.13.


16.348. Setting of Fee by Political Subdivision; Lien; Delinquent Fees

    (a)  Before a political subdivision may set the amount of or impose a fee under Section 16.347 of this code, the political subdivision shall hold a hearing on the matter.

    (b)  Notice of the hearing shall be published in a newspaper of general circulation in the political subdivision once a week for two consecutive weeks. The first publication must occur not later than the 30th day before the date of the hearing. The political subdivision shall send, not later than the 30th day before the date of the hearing, notice of the hearing by certified mail, return receipt requested, to each owner of undeveloped property in the political subdivision. The tax assessor and collector of the political subdivision shall certify to the political subdivision the names of the persons owning undeveloped land in the political subdivision as reflected by the most recent certified tax roll of the political subdivision. Notice of the hearing also must be provided by certified mail, return receipt requested, to each mortgagee of record that has submitted a written request to be informed of any hearings. To be effective, the written request must be received by the political subdivision not later than the 60th day before the date of the hearing. The written request for notice must include the name and address of the mortgagee, the name of the property owner in the political subdivision, and a brief property description.

    (c)  The amount of a distressed areas water financing fee imposed by a political subdivision pursuant to this section must be reasonably related to that portion of the total amount required to be paid annually in repayment of financial assistance that can be attributed to undeveloped property in the area to be served by water supply and sewer services provided with that financial assistance.

    (d)  The distressed areas water financing fee or the lien securing the fee is not effective or enforceable until the governing body of the political subdivision has filed for recordation with the county clerk in each county in which any part of the political subdivision is located and the county clerk has recorded and indexed a duly affirmed and acknowledged notice of imposition of the distressed areas water financing fee containing the following information:

      (1)  the name of the political subdivision;
      (2)  the date of imposition by the political subdivision of the distressed areas water financing fee;
      (3)  the year or years to which the distressed areas water financing fee applies; and
      (4)  a complete and accurate legal description of the boundaries of the political subdivision.

    (e)  On January 1 of each year, a lien attaches to undeveloped property to secure payment of any fee imposed under this section and the interest, if any, on the fee. The lien shall be treated as if it were a tax lien and has the same priority as a lien for taxes of the political subdivision.

    (f)  If a distressed areas water financing fee imposed under Section 16.347 of this code is not paid in a timely manner, the political subdivision may file suit to foreclose the lien securing payment of the fee and interest. The political subdivision may recover, in addition to the fee and interest, reasonable costs, including attorney's fees, incurred by the political subdivision in enforcing the lien not to exceed 15 percent of the delinquent fee and interest. A suit authorized by this subsection must be filed not later than the fourth anniversary of the date the fee became due. A fee delinquent for more than four years and interest on the fee are considered paid unless a suit is filed before the expiration of the four-year period.

    (g)  A person owning undeveloped property for which a distressed areas water financing fee is assessed under this section may not construct or add improvements to the property if the fee is delinquent.

    (h)  A political subdivision shall, on the written request of any person and within five days after the date of the request, issue a certificate stating the amount of any unpaid distressed areas water financing fees, including interest on the fees, that have been imposed or assessed against a tract of property located in the political subdivision. The political subdivision may charge a fee not to exceed $10 for each certificate. A certificate issued through fraud or collusion is void.

Added by Acts 1989, 71st Leg., ch. 624, 2.13.


16.349. Fees

    (a)  A political subdivision that receives financial assistance may charge persons in an economically distressed area in which water supply and sewer services are furnished an amount for those services that is not less than the amount provided in the application for financial assistance.

    (b)  Except as provided by Subsection (c), the amount charged under Subsection (a) of this section may be equal to or less than the rates paid for water supply and sewer services by residents of the political subdivision.

    (c)  A political subdivision holding a certificate of convenience and necessity described by Section 13.242, that extends service to an economically distressed area outside the boundaries of the political subdivision, may not charge the residents of the area rates that exceed the lesser
    of:

      (1)  the cost of providing service to the area; or
      (2)  the rates charged other residents of the political subdivision plus 15 percent.

Added by Acts 1989, 71st Leg., ch. 624, 2.13. Amended by Acts 1995, 74th Leg., ch. 979, 16, eff. June 16, 1995.


16.350. Eligible Counties and Municipalities to Adopt Rules

    (a)  A county or municipality that applies for or receives funds or financial assistance under Section 15.407 of this code or Subchapter K, Chapter 17, of this code must adopt and enforce the model rules developed under Section 16.343 of this code to be eligible to participate in this program. The county or municipality by order or ordinance shall adopt and enter the model rules in the minutes of a meeting of its governing body and shall publish notice of that action in a newspaper with general circulation in the county or municipality. A municipality is eligible to participate in this program only if the county in which the project is located adopts and enforces the model rules.

    (b)  Rules adopted by the commissioners court under this section must apply to all the unincorporated area of the county.

    (c)  A municipality may adopt rules relating to water supply and sewer services within its corporate boundaries and extraterritorial jurisdiction that are more strict than those prepared under Section 16.343 of this code.

    (d)  A county or municipality that receives funds or financial assistance under Section 15.407 of this code or Subchapter K, Chapter 17, of this code may grant an exemption for a subdivision from the requirements of the model rules only if the county or municipality supplies the subdivision with water supply and sewer services that meet the standards of the model rules.

Added by Acts 1989, 71st Leg., ch. 624, 2.13. Amended by Acts 1991, 72nd Leg., ch. 422, 6, eff. Sept. 1, 1991.


16.351. Contract Preference

A political subdivision that receives financial assistance under Subchapter K, Chapter 17, of this code shall give preference in the award of political subdivision contracts to acquire, construct, extend, or provide water supply and sewer services or facilities to a bidder that agrees to use labor from inside the political subdivision to the extent possible.

Added by Acts 1989, 71st Leg., ch. 624, 2.13.


16.352. Enforcement of Rules

A person who violates a rule adopted by a municipality or county under this subchapter or under Subchapter B or C, Chapter 232, Local Government Code, is liable to the municipality or county for a civil penalty of not less than $500 and not more than $1,000 for each violation and for each day of a violation. The maximum civil penalty that may accrue each day is $5,000. The appropriate attorney representing the municipality or county may sue to collect the penalty. The recovered penalty shall be deposited in the general fund of the municipality or county.

Added by Acts 1999, 76th Leg., ch. 404, 36, eff. Sept. 1, 1999.


16.353. Injunction

    (a)  In addition to any other remedy, the attorney general, the municipal attorney of the municipality in which a violation under Section 16.352 occurs, or the county or district attorney of the county in which a violation under Section 16.352 occurs may apply to a district court for, and the district court may grant, the state or the political subdivision an appropriate prohibitory or mandatory order, including a temporary restraining order or a temporary or permanent injunction, enjoining a violation of this subchapter, the rules described by Section 16.352, or Subchapter B or C, Chapter 232, Local Government Code.

    (b)  An injunction issued under this section may be issued without the requirement of a bond or other undertaking.

Added by Acts 1999, 76th Leg., ch. 404, 36, eff. Sept. 1, 1999.


16.3535. Damages

In addition to any other remedy, the attorney general, the municipal attorney of the municipality in which a violation under Section 16.352 occurs, or the county or district attorney of the county in which a violation under Section 16.352 occurs may apply to a district court for, and the district court may grant, monetary damages to cover the cost of enforcing this subchapter, rules adopted under this subchapter, or Subchapter B or C, Chapter 232, Local Government Code.

Added by Acts 1999, 76th Leg., ch. 404, 36, eff. Sept. 1, 1999.


16.354. Attorney General Enforcement

In addition to the ability of any political subdivision to enforce this subchapter, the attorney general may file suit to:

    (1)  enforce a rule adopted under Section 16.350;
    (2)  recover a civil penalty under Section 16.352;
    (3)  obtain injunctive relief under Section 16.353; (4)  recover damages under Section 16.3535;
    (5)  enforce a political subdivision's rules, recover any penalty, recover any damages, and obtain any njunctive relief; or
    (6)  recover attorney's fees, investigative costs, and court costs.

Added by Acts 1999, 76th Leg., ch. 404, 36, eff. Sept. 1, 1999.


16.3545. Venue

A suit brought under this subchapter for injunctive relief or the recovery of a civil penalty or damages may be brought in a district court in:

    (1)  the county in which the defendant resides;
    (2)  the county in which the alleged violation or threat of violation occurs; or
    (3)  Travis County.

Added by Acts 1999, 76th Leg., ch. 404, 36, eff. Sept. 1, 1999.


16.355. Authority Over Facilities

A political subdivision may construct, contract for construction, operate, or contract with any person for operation of any water supply or sewer services or facilities provided by the political subdivision with financial assistance obtained under Subchapter K, Chapter 17, of this code.

Added by Acts 1989, 71st Leg., ch. 624, 2.13.


16.356. Use of Revenue From Operation of Water Supply or Sewer Service Projects

    (a)  A political subdivision that receives financial assistance from the economically distressed areas program under Subchapter K, Chapter 17, may not use any revenue received from fees collected from a water supply or sewer service constructed in whole or in part from funds from the economically distressed areas program account for purposes other than utility purposes. The annual financial statement prepared by a municipality under Section 103.001, Local Government Code, must include a specific report on compliance with this section.

    (b)  At the request of the board or on the attorney general's own initiative, the attorney general may file suit to enjoin an actual or threatened violation of this section.

Added by Acts 1999, 76th Leg., ch. 404, 37, eff. Sept. 1, 1999.


CHAPTER 17. PUBLIC FUNDING

SUBCHAPTER K. ASSISTANCE TO ECONOMICALLY DISTRESSED AREAS FOR WATER SUPPLY AND SEWER SERVICE PROJECTS

17.921. Definitions

In this subchapter:

    (1)  "Economically distressed area" means an area in which:
      (A)  Water supply or sewer services are inadequate to meet minimal needs of residential users as defined by board rules;
      (B)  financial resources are inadequate to provide water supply or sewer services that will satisfy those needs; and
      (C)  an established residential subdivision was located on June 1, 1989, as determined by the board.
    (2)  "Financial assistance" means the funds provided by the board to political subdivisions for water supply and sewer services under this subchapter.
    (3)  "Political subdivision" means a county, municipality, a nonprofit water supply corporation created and operating under Chapter 67, or district or authority created under Article III, Section 52, or Article XVI, Section 59, of the Texas Constitution.
    (4)  "Water conservation" means those practices, techniques, and technologies that will reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses.
    (5)  "Sewer services" and "sewer facilities" mean treatment works or individual, on-site, or cluster treatment systems such as septic tanks and include drainage facilities and other improvements for proper functioning of the sewer services and other facilities.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.881 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1995, 74th Leg., ch. 979, 20, eff. June 16, 1995; Acts 1999, 76th Leg., ch. 62, 18.62, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 404, 38, eff. Sept. 1, 1999.


17.922. Financial Assistance

    (a) The economically distressed areas account may be used by the board to provide financial assistance to political subdivisions for the construction, acquisition, or improvement of water supply and sewer services, including providing funds from the account for the state's participation in federal programs that provide assistance to political subdivisions.

    (b) To the extent practicable, the board shall use the funds in the economically distressed areas account in conjunction with the other financial assistance available through the board to encourage the use of cost-effective water supply and wastewater systems, including regional systems, to maximize the long-term economic development of counties eligible for financial assistance under the economically distressed areas program. Any savings derived from the construction of a regional system that includes or serves an economically distressed area project shall be factored into the board's determination of financial assistance for the economically distressed area in a manner that assures the economically distressed area receives appropriate benefits from the savings. In no event shall financial assistance provided from the economically distressed areas account be used to provide water supply or wastewater service to any area not defined as an economically distressed area pursuant to Section 17.921(1)(A) of this code.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.882 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1993, 73rd Leg., ch. 844, 6, eff. Aug. 30, 1993.


17.923. County Eligibility for Financial Assistance

To be eligible for financial assistance under this subchapter, a county:

    (1) must have a per capita income that averaged 25 percent below the state average for the most recent three consecutive years for which statistics are available and an unemployment rate that averaged 25 percent above the state average for the most recent three consecutive years for which statistics are available; or
    (2) must be located adjacent to an international border.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.883 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990.


17.924. Municipality Eligible for Financial Assistance

A municipality that is located in a county that is eligible for financial assistance under Section 17.923 of this code is eligible for financial assistance under this subchapter if the municipality adopts the model rules developed under Section 16.343 of this code.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.884 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1993, 73rd Leg., ch. 844, 6, eff. Aug. 30, 1993.


17.925. Districts and Nonprofit Water Supply Corporations Eligible for Financial Assistance

A district or nonprofit water supply corporation is eligible to receive financial assistance under this subchapter if:

    (1)  application is made to provide services to residents of an economically distressed area located in an eligible county or municipality; and
    (2) the governing bodies of each eligible county and municipality in which the service area is located do not intend to apply for financial assistance for the same project for the same area and approve by resolution the district submitting an application for financial assistance.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.885 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990.


17.926. Applicants' Continued Eligibility

If, after submission of a financial assistance application under this subchapter or an application for funds under Section 15.407, a county has an increase in average per capita income or decrease in unemployment rate average so that the county no longer meets the criteria in this subchapter, the political subdivision that submits the application continues to be eligible for the financial assistance under this subchapter, and the board shall process the application and, if the application is approved, shall provide financial assistance to the political subdivision to complete the project.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.886 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1995, 74th Leg., ch. 649, 2, eff. June 14, 1995.


17.927. Application for Financial Assistance

    (a) A political subdivision may apply to the board for financial assistance under this subchapter by submitting an application together with a plan for providing water supply and sewer services to an economically distressed area for which the financial assistance is to be used.

    (b) The application and plan must:

      (1) comply with board requirements;
      (2) describe in detail the method for delivering water supply and sewer services and the persons to whom the services will be provided;
      (3) describe the method for complying with minimum state standards for water supply and sewer services adopted by the board under Section 16.342 of this code;
      (4) include a budget that estimates the total cost of providing water supply and sewer services to the economically distressed area and a proposed schedule and method for repayment of financial assistance consistent with board rules and guidelines;
      (5) describe existing water supply and sewer facilities located in the economically distressed area and include with the description:
        (A) the county map required by Section 366.036, Health and Safety Code; or
        (B) a document prepared and certified by an engineer registered to practice in this state describing the plan for providing water supply and sewer services to the economically distressed area;
      (6) provide proof that the appropriate political subdivision has adopted the model rules developed under Section 16.343 of this code;
      (7) include information on the ability of potential customers to pay for the services provided by the project including composite data prepared by the applicant pursuant to board rules and guidelines from surveys of those potential customers covering income, family size, personal expenses, employment status, and other information required by board rule;
      (8) include an estimate of the per household cost of providing the services contemplated by the project with supporting data;
      (9) describe the procedures to be used to collect money from residents who use the proposed water supply and sewer services including procedures for collection of delinquent accounts;
      (10) include a requirement that a contractor who agrees to acquire, construct, extend, or provide water supply and sewer services executes a performance bond in the amount of 100 percent of the contract price;
      (11) contain an agreement to comply with applicable procurement procedures in contract awards for water supply and sewer services;
      (12) if located in the service area of a retail public utility or public utility that has a certificate of public convenience and necessity under Chapter 13 of this code, include a document in the form of an affidavit signed by the chief executive officer of the utility, which shall cooperate with the political subdivision, stating that the utility does not object to the construction and operation of the services and facilities in its service area;
      (13) include a map of the economically distressed area together with supporting information relating to dwellings in the area;
      (14) describe in detail the methods for incorporating water conservation into the provision of water and sewer services to the economically distressed area;
      (15) include, on request of the board, a written determination by the commission on the managerial, financial, and technical capabilities of the applicant to operate the system for which assistance is being requested; and
      (16) include any other information required by the board.
    (c) If an applicant is a district or nonprofit water supply corporation, the applicant must include with the application proof that the appropriate county and municipalities have given their consent.

    (d) In an application to the board for financial assistance for a water supply project or for sewer services, the applicant shall include:

      (1) the name of the political subdivision and its principal officers;
      (2) a citation of the law under which the political subdivision operates and was created;
      (3) a description of the water supply project or the sewer services for which the financial assistance will be used;
      (4)  the estimated total cost of the water supply project or sewer services construction;
      (5) the amount of state financial assistance requested;
      (6) the plan for repaying the financial assistance provided for the water supply project or sewer services; and
      (7) any other information the board requires.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.887 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1991, 72nd Leg., ch. 14, 284(79), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, 16.01, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 404, 39, eff. Sept. 1, 1999.
Amended by SB 649, eff. Sept. 1, 2001.


17.928. Findings Regarding Permits

    (a) The board shall not release funds for the construction of that portion of a project that proposes surface water or groundwater development until the executive administrator makes a written finding:
      (1) that an applicant proposing surface-water development has the necessary water right authorizing it to appropriate and use the water that the water supply project will provide; or
      (2) that an applicant proposing groundwater development has the right to use water that the water supply project will provide.

    (b) The board may release funds for the costs of planning, engineering, architectural, legal, title, fiscal, or economic investigation, studies, surveys, or designs before making the finding required under Subsection (a) if the executive administrator determines that a reasonable expectation exists that the finding will be made before the release of funds for construction.

    (c) If an applicant includes a proposal for treatment works, the board may not deliver funds for the treatment works until the applicant has received a permit for construction and operation of the treatment works and approval of the plans and specifications from the commission or unless such a permit is not required by the commission.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.888 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990.
Amended by SB 312, eff. Sept. 1, 2001.


17.929. Considerations in Passing on Application

    (a) In passing on an application for financial assistance, the board shall consider:
      (1) the need of the economically distressed area to be served by the water supply and sewer services in relation to the need of other political subdivisions requiring financial assistance under this subchapter and the relative costs and benefits of all applications;
      (2) efforts by the residents of the economically distressed area to provide necessary water supply and sewer services;
      (3) the proposed use of labor from inside the political subdivision to perform contracts for providing water supply and sewer services;
      (4) the relationship of the proposed water supply and sewer services to minimum state standards for water supply and sewer services adopted under Section 16.343 of this code;
      (5) the financing of the proposed water supply and sewer project including consideration of:
        (A) the budget and repayment schedule submitted under Section 17.927(b)(4) of this code;
        (B) other items included in the application relating to financing; and
        (C) other financial information and data available to the board;
      (6) whether the applicant has proposed methods for incorporating water conservation into the provision of water and sewer services to the economically distressed area;
      (7) whether the county has adopted model rules pursuant to Section 16.343 of this code and the manner of enforcement of model rules;
      (8) the feasibility of creating a conservation and reclamation district under Article XVI, Section 59, of the Texas Constitution, to provide the services and finance the water supply and sewer services covered by the application with district bonds issued and sold through the regular bond market;
      (9) the percentage of the total project cost that the financial assistance will comprise; and
      (10)  the feasibility of achieving cost savings by providing a regional facility for water supply or wastewater service and the feasibility of financing the facility by using funds from the economically distressed areas account or any other financial assistance.

    (b) At the time an application for financial assistance is considered, the board also must find that the area to be served by a proposed project has an average per capita income that is at least 25 percent below the state average for the most recent three consecutive years for which statistics are available.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.889 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1993, 73rd Leg., ch. 844, 7, eff. Aug. 30, 1993.


17.930. Approval or Disapproval of Application

    (a) The board may issue a decision to approve an application contingent on changes being made to the plan submitted with the application.

    (b) After making the considerations provided by Section 17.929 of this code, the board by resolution shall:

      (1) approve the plan and application as submitted;
      (2) approve the plan and application subject to the requirements identified by the commission for the applicant to obtain the managerial, financial, and technical capabilities to operate the system and any other requirements, including training under Subchapter M, the board considers appropriate;
      (3) deny the application and identify the requirements or remedial steps the applicant must complete before the applicant may be reconsidered for financial assistance;
      (4) if the board finds that the applicant will be unable to obtain the managerial, financial, or technical capabilities to build and operate a system, deny the application and issue a determination that a service provider other than the applicant is necessary or appropriate to undertake the proposed project; or
      (5)  deny the application.

    (c) The board shall notify the applicant in writing of its decision.

    (d) The board may require the applicant to provide local funds in an amount approved by the board under this subchapter, and the board shall provide the remaining funds from the economically distressed areas account.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.890 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1993, 73rd Leg., ch. 844, 8, eff. Aug. 30, 1993; Acts 1999, 76th Leg., ch. 404, 40, eff. Sept. 1, 1999.
Amended by SB 649, eff. Sept. 1, 2001.


17.931. Application Amendment

    (a) A political subdivision may request the board in writing to approve a change to or a modification of the budget or project plan included in its application.

    (b)  A change or modification may not be implemented unless the board provides its written approval.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.891 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990.


17.932. Method of Financial Assistance

    (a) The board may provide financial assistance to political subdivisions by using money in the economically distressed areas account to purchase political subdivision bonds.

    (b) The board may make financial assistance available to political subdivisions in any other manner that it considers feasible, including:

      (1) contracts or agreements with a political subdivision for acceptance of financial assistance that establish any repayment based on the political subdivision's ability to repay the assistance and that establish requirements for acceptance of the assistance; or
      (2) contracts or agreements for providing financial assistance in any federal or federally assisted project or program.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.892 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990.


17.933. Terms of Financial Assistance

    (a) The board may use money in the economically distressed areas account to provide financial assistance to a political subdivision to be repaid in the form, manner, and time provided by board rules and in the agreement between the board and the political subdivision taking into consideration the information provided by Section 17.927(b)(7) of this code.

    (b) In providing financial assistance to an applicant under this subchapter, the board may not provide to the applicant financial assistance for which repayment is not required in an amount that exceeds 50 percent of the total amount of the financial assistance plus interest on any amount that must be repaid, unless the Texas Department of Health issues a finding that a nuisance dangerous to the public health and safety exists resulting from water supply and sanitation problems in the area to be served by the proposed project. The board and the applicant shall provide to the Texas Department of Health information necessary to make a determination, and the board and the Texas Department of Health may enter into necessary memoranda ofunderstanding to carry out this subsection.

    (c) The total amount of financial assistance provided by the board to political subdivisions under this subchapter from state-issued bonds for which repayment is not required may not exceed at any time 90 percent of the total principal amount of issued and unissued bonds authorized under Article III, Section 49-d-7, of the Texas Constitution, for purposes of this subchapter plus outstanding interest on those bonds.

    (d) In determining the amount and form of financial assistance and the amount and form of repayment, if any, the board shall consider:

      (1) rates, fees, and charges that the average customer to be served by the project will be able to pay based on a comparison of what other families of similar income who are similarly situated pay for comparable services;
      (2) sources of funding available to the political subdivision from federal and private funds and from other state funds;
      (3) any local funds of the political subdivision to be served by the project if the economically distressed area to be served by the board's financial assistance is within the boundary of the political subdivision; and
      (4) the just, fair, and reasonable charges for water and wastewater service as provided in this code.

    (e) In making its determination under Subsection (d)(1) of this section, the board may consider any study, survey, data, criteria, or standard developed or prepared by any federal, state, or local agency, private foundation, banking or financial institution, or other reliable source of statistical or financial data or information.

    (f) The board may provide financial assistance money under this subchapter for treatment works as defined by Section 17.001 of this code only if the board determines that it is not feasible in the area covered by the application to use septic tanks as the method for providing sewer services under the applicant's plan.

    (g) The amount of financial assistance provided by the board to a political subdivision for service to areas defined in Section 17.921(1)(C)(ii) for which repayment is not required is 50 percent of the state bond proceeds used for the design and construction of the service.

Added by Acts 1989, 71st Leg., ch. 624, 2.21. Renumbered from 17.893 by Acts 1990, 71st Leg., 6th C.S., ch. 12, 2(36), eff. Sept. 6, 1990. Amended by Acts 1991, 72nd Leg., ch. 422, 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 844, 9, eff. Aug. 30, 1993; Acts 1995, 74th Leg., ch. 76, 11.291, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 979, 21, eff. June 16, 1995; Acts 1999, 76th Leg., ch. 404, 41, eff. Sept. 1, 1999.


17.934. Sewer Connections

    (a) Notwithstanding any other law, a political subdivision that is located in a county in which a political subdivision has received financial assistance under this subchapter or under Subchapter F, Chapter 15, of this code may:
      (1) provide for a sanitary sewer system; and
      (2) require property owners to connect to the sewer system.

    (b) The board may require, as a condition for granting an application for financial assistance under this subchapter to a political subdivision for construction of sewer services, that the applicant exercise its authority under this section.

Added by Acts 1991, 72nd Leg., ch. 422, 1, eff. Sept. 1, 1991.


17.935. Grant Standards

The Uniform Grant and Contract Management Act of 1981 (Article 4413(32g), Vernon's Texas Civil Statutes) does not apply to financial assistance provided under this subchapter.

Added by Acts 1991, 72nd Leg., ch. 422, 3, eff. Sept. 1, 1991.


17.936. Recovery of Economically Distressed Area Impact Fees

    (a) It is the intent of the legislature that a private developer not unduly benefit from the expenditure by the state of public funds on infrastructure for public benefit.

    (b) In this section:

      (1) "Capital improvement costs" includes:
        (A) the construction contract price;
        (B) surveying and engineering fees;
        (C) land acquisition costs, including land purchases, court awards and costs, attorney's fees, and expert witness fees;
        (D) fees actually paid or contracted to be paid to an independent, qualified engineer or financial consultant who is:
          (i)  preparing or updating the capital improvements plan; and
          (ii)  not an employee of the subdivision; and
        (E) projected interest charges and other finance costs that are used for the payment of principal and interest on bonds, notes, or other obligations issued by or on behalf of the political subdivision to finance the capital improvements plan and that are not used to reimburse bond funds expended for facilities that are not identified in the capital improvements plan of the subdivision.
      (2) "Economically distressed areas program impact fees" means the pro rata share of the capital improvement costs attributable to each lot in an economically distressed area.

    (c) This section applies only to property located in:

      (1) the unincorporated area of an affected county, as defined by Section 16.341; and
      (2) an economically distressed area, as defined by Section 16.341.

    (d) The provider of water or wastewater utility service to an economically distressed area may recover from a developer or owner of an undeveloped lot economically distressed areas program impact fees as provided by rules adopted by the board.

Added by Acts 1995, 74th Leg., ch. 979, 22, eff. June 16, 1995.


SUBCHAPTER M. REQUIRED TRAINING FOR APPLICANTS FOR AND RECIPIENTS OF ECONOMICALLY DISTRESSED AREAS PROGRAM FINANCIAL ASSISTANCE

17.991. Definitions

In this subchapter:

    (1) "Operating entity" means the governing body of a political subdivision responsible for providing water supply and sewer services and the management of its water and sewer system, as defined by rules of the board.
    (2) "Political subdivision" has the meaning assigned by Section 17.921.

Added by SB 649, eff. Sept. 1, 2001.


17.992. Training For Applicants

The board may require the operating entity of a political subdivision that applies for financial assistance under Subchapter K to complete a training program approved by the board if the board determines that training is necessary.

Added by SB 649, eff. Sept. 1, 2001.


17.993. Training for Operating Entities

    (a) The commission or the board may evaluate whether an operating entity needs training if the operating entity:
      (1) requests additional funding;
      (2) requests more time to meet its obligations under a repayment schedule;
      (3) does not provide required documentation; or
      (4) has a history of compliance problems, as determined by the commission.

    (b) The board or the commission may determine that training is necessary if, after an examination and evaluation of the operating entity's managerial, financial, and technical capabilities, the board or commission finds that the operatingentity's managerial, financial, or technical capabilities are inadequate to ensure the project will meet program requirements or remain financially viable.

    (c) The commission by rule shall establish a preenforcement threshold of noncompliance at which the commission may notify the board that an operating entity needs training.

    (d) vIf the commission assesses a penalty against an operating entity in an enforcement action, the enforcement order must contain a provision requiring that the operating entity receive training as ordered by the board. The commission shall notify the board when the commission assesses a penalty against an operating entity.

Added by SB 649, eff. Sept. 1, 2001.


17.994. Training Requirements

    (a) The board by order shall require an operating entity to undergo appropriate training if the board:
      (1) determines that training is necessary under Section 17.992 or 17.993(a) or (b); or
      (2) receives notice from the commission that the commission finds that training is necessary under Section 17.993.

    (b) The board shall refer the operating entity to an appropriate individual, association, business organization, or governmental entity for training required by the order.

    (c) The person providing the training shall conduct an assessment of the operating entity for which training is ordered, determine who needs training, and devise a training program to address the deficiencies identified in the assessment.

    (d) The person providing the training shall present a proposed training program to the board for approval. If the training program is approved by the board, the person shall conduct the required training.

    (e) On completion of the training, the person who provided the training shall issue a certificate of completion to the participants in the training and to the board.

    (f) A political subdivision shall reimburse a participant in training for reasonable expenses incurred in completing the training.

    (g) Not later than January 15 each year, each person who provides training under this section shall report to the board a list of political subdivisions for which the person provided training required under this section during the previous calendar year.

Added by SB 649, eff. Sept. 1, 2001.

 

Revised: May 06 2010