CHAPTER 15. JUDICIAL REVIEW, ENFORCEMENT, AND PENALTIES - Texas Statutes

UTILITIES CODE

TITLE 2. PUBLIC UTILITY REGULATORY ACT

SUBTITLE A. PROVISIONS APPLICABLE TO ALL UTILITIES

CHAPTER 15. JUDICIAL REVIEW, ENFORCEMENT, AND PENALTIES

SUBCHAPTER A. JUDICIAL REVIEW

Sec. 15.001. RIGHT TO JUDICIAL REVIEW. Any party to a

proceeding before the commission is entitled to judicial review

under the substantial evidence rule.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.002. COMMISSION AS DEFENDANT. The commission must be a

defendant in a proceeding for judicial review.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.003. COSTS AND ATTORNEY'S FEES. (a) A party

represented by counsel who alleges that existing rates are

excessive or that rates prescribed by the commission are

excessive and who prevails in a proceeding for review of a

commission order or decision is entitled in the same action to

recover against the regulation fund reasonable fees for attorneys

and expert witnesses and other costs for the party's efforts

before the commission and the court.

(b) The court shall set the amount of attorney's fees awarded

under Subsection (a).

(c) If a court finds that an action under Section 15.001 or this

section was groundless and brought in bad faith and for the

purpose of harassment, the court may award reasonable attorney's

fees to the defendant public utility.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.004. JUDICIAL STAY OR SUSPENSION. While an appeal of an

order, ruling, or decision of a regulatory authority is pending,

the district court, court of appeals, or supreme court, as

appropriate, may stay or suspend all or part of the operation of

the order, ruling, or decision. In granting or refusing a stay or

suspension, the court shall act in accordance with the practice

of a court exercising equity jurisdiction.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER B. ENFORCEMENT AND PENALTIES

Sec. 15.021. ACTION TO ENJOIN OR REQUIRE COMPLIANCE. (a) The

attorney general, on the request of the commission, shall apply

in the name of the commission for a court order under Subsection

(b) if the commission determines that a public utility or other

person is:

(1) engaging in or about to engage in an act that violates this

title or an order or rule of the commission entered or adopted

under this title; or

(2) failing to comply with the requirements of this title or a

rule or order of the commission.

(b) A court, in an action under this section, may:

(1) prohibit the commencement or continuation of an act that

violates this title or an order or rule of the commission entered

or adopted under this title; or

(2) require compliance with a provision of this title or an

order or rule of the commission.

(c) The remedy under this section is in addition to any other

remedy provided under this title.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.022. CONTEMPT. The commission may file a court action

for contempt against a person who:

(1) fails to comply with a lawful order of the commission;

(2) fails to comply with a subpoena or subpoena duces tecum; or

(3) refuses to testify about a matter on which the person may be

lawfully interrogated.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.023. ADMINISTRATIVE PENALTY. (a) The commission may

impose an administrative penalty against a person regulated under

this title who violates this title or a rule or order adopted

under this title.

(b) The penalty for a violation may be in an amount not to

exceed $25,000. Each day a violation continues or occurs is a

separate violation for purposes of imposing a penalty.

(c) The commission by rule shall establish a classification

system for violations that includes a range of administrative

penalties that may be assessed for each class of violation based

on:

(1) the seriousness of the violation, including:

(A) the nature, circumstances, extent, and gravity of a

prohibited act; and

(B) the hazard or potential hazard created to the health,

safety, or economic welfare of the public;

(2) the economic harm to property or the environment caused by

the violation;

(3) the history of previous violations;

(4) the amount necessary to deter future violations;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

(d) The classification system established under Subsection (c)

shall provide that a penalty in an amount that exceeds $5,000 may

be assessed only if the violation is included in the highest

class of violations in the classification system.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

797, Sec. 7, eff. September 1, 2005.

Sec. 15.024. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE. (a)

If the executive director determines that a violation has

occurred, the executive director may issue to the commission a

report that states the facts on which the determination is based

and the executive director's recommendation on the imposition of

an administrative penalty, including a recommendation on the

amount of the penalty.

(b) Not later than the 14th day after the date the report is

issued, the executive director shall give written notice of the

report to the person against whom the penalty may be assessed.

The notice may be given by certified mail. The notice must:

(1) include a brief summary of the alleged violation;

(2) state the amount of the recommended penalty; and

(3) inform the person that the person has a right to a hearing

on the occurrence of the violation, the amount of the penalty, or

both the occurrence of the violation and the amount of the

penalty.

Text of Subsection (c) as amended by Acts 1999, 76th Leg., ch.

1212, Sec. 3

(c) A penalty may not be assessed under this section if the

person against whom the penalty may be assessed remedies the

violation before the 31st day after the date the person receives

the notice under Subsection (b). A person who claims to have

remedied an alleged violation has the burden of proving to the

commission that the alleged violation was remedied and was

accidental or inadvertent. This subsection does not apply to a

violation of Chapter 55 or 64.

Text of Subsection (c) as amended by Acts 1999, 76th Leg., ch.

1579, Sec. 2

(c) A penalty may not be assessed under this section if the

person against whom the penalty may be assessed remedies the

violation before the 31st day after the date the person receives

the notice under Subsection (b). A person who claims to have

remedied an alleged violation has the burden of proving to the

commission that the alleged violation was remedied and was

accidental or inadvertent. This subsection does not apply to a

violation of Chapter 17 or 55.

(d) Not later than the 20th day after the date the person

receives the notice, the person may accept the determination and

recommended penalty of the executive director in writing or may

make a written request for a hearing on the occurrence of the

violation, the amount of the penalty, or both the occurrence of

the violation and the amount of the penalty.

(e) If the person accepts the executive director's determination

and recommended penalty, the commission by order shall approve

the determination and impose the recommended penalty.

(f) If the person requests a hearing or fails to timely respond

to the notice, the executive director shall set a hearing and

give notice of the hearing to the person. The hearing shall be

held by an administrative law judge of the State Office of

Administrative Hearings. The administrative law judge shall make

findings of fact and conclusions of law and promptly issue to the

commission a proposal for a decision about the occurrence of the

violation and the amount of a proposed penalty. Based on the

findings of fact, conclusions of law, and proposal for a

decision, the commission by order may find that a violation has

occurred and impose a penalty or may find that no violation

occurred.

(g) The notice of the commission's order shall be given to the

person as provided by Chapter 2001, Government Code, and must

include a statement of the right of the person to judicial review

of the order.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 1212, Sec. 3, eff. Sept. 1,

1999; Acts 1999, 76th Leg., ch. 1579, Sec. 2, eff. Aug. 30, 1999.

Sec. 15.025. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not later

than the 30th day after the date the commission's order imposing

an administrative penalty is final as provided by Section

2001.144, Government Code, the person shall:

(1) pay the amount of the penalty;

(2) pay the amount of the penalty and file a petition for

judicial review contesting:

(A) the occurrence of the violation;

(B) the amount of the penalty; or

(C) both the occurrence of the violation and the amount of the

penalty; or

(3) without paying the amount of the penalty, file a petition

for judicial review contesting:

(A) the occurrence of the violation;

(B) the amount of the penalty; or

(C) both the occurrence of the violation and the amount of the

penalty.

(b) Not later than the 30th day after the date the commission's

order is final as provided by Section 2001.144, Government Code,

a person who acts under Subsection (a)(3) may:

(1) stay enforcement of the penalty by:

(A) paying the amount of the penalty to the court for placement

in an escrow account; or

(B) giving to the court a supersedeas bond that is approved by

the court for the amount of the penalty and that is effective

until all judicial review of the commission's order is final; or

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person

stating that the person is financially unable to pay the amount

of the penalty and is financially unable to give the supersedeas

bond; and

(B) giving a copy of the affidavit to the executive director by

certified mail.

(c) The executive director, on receipt of a copy of an affidavit

under Subsection (b)(2), may file with the court, not later than

the fifth day after the date the copy is received, a contest to

the affidavit. The court shall hold a hearing on the facts

alleged in the affidavit as soon as practicable and shall stay

the enforcement of the penalty on finding that the alleged facts

are true. The person who files an affidavit has the burden of

proving that the person is financially unable to pay the amount

of the penalty and to give a supersedeas bond.

(d) If the person does not pay the amount of the penalty and the

enforcement of the penalty is not stayed, the executive director

may refer the matter to the attorney general for collection of

the amount of the penalty.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.026. JUDICIAL REVIEW OF ADMINISTRATIVE PENALTY. (a)

Judicial review of a commission order imposing an administrative

penalty is:

(1) instituted by filing a petition as provided by Subchapter G,

Chapter 2001, Government Code; and

(2) under the substantial evidence rule.

(b) If the court sustains the occurrence of the violation, the

court may uphold or reduce the amount of the penalty and order

the person to pay the full or reduced amount of the penalty. If

the court does not sustain the occurrence of the violation, the

court shall order that no penalty is owed.

(c) When the judgment of the court becomes final, the court

shall proceed under this subsection. If the person paid the

amount of the penalty and that amount is reduced or is not upheld

by the court, the court shall order that the appropriate amount

plus accrued interest be remitted to the person. The rate of the

interest is the rate charged on loans to depository institutions

by the New York Federal Reserve Bank, and the interest shall be

paid for the period beginning on the date the penalty was paid

and ending on the date the penalty is remitted. If the person

gave a supersedeas bond and the amount of the penalty is not

upheld by the court, the court shall order the release of the

bond. If the person gave a supersedeas bond and the amount of the

penalty is reduced, the court shall order the release of the bond

after the person pays the amount.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.027. ADMINISTRATIVE PENALTY COLLECTION; GENERAL

PROVISIONS. (a) An administrative penalty collected under this

subchapter shall be sent to the comptroller.

(b) A proceeding relating to an administrative penalty under

this subchapter is subject to Chapter 2001, Government Code.

(c) The executive director may delegate any power or duty

relating to an administrative penalty given the executive

director by this subchapter to a person designated by the

executive director.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.028. CIVIL PENALTY AGAINST PUBLIC UTILITY, PAY TELEPHONE

SERVICE PROVIDER, OR AFFILIATE. (a) A public utility,

customer-owned pay telephone service provider under Section

55.178, or affiliate is subject to a civil penalty if the

utility, provider, or affiliate knowingly violates this title,

fails to perform a duty imposed on it, or fails or refuses to

obey an order, rule, direction, or requirement of the commission

or a decree or judgment of a court.

(b) A civil penalty under this section shall be in an amount of

not less than $1,000 and not more than $5,000 for each violation.

(c) A public utility or affiliate commits a separate violation

each day it continues to violate Subsection (a).

(d) The attorney general shall file in the name of the

commission a suit on the attorney general's own initiative or at

the request of the commission to recover the civil penalty under

this section.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.029. CIVIL PENALTY FOR VIOLATING SECTION 12.055 OR

12.154. (a) A member of the commission or an officer or

director of a public utility or affiliate who knowingly violates

Section 12.055 or 12.154 is subject to a civil penalty of $1,000

for each violation.

(b) A person other than a person subject to Subsection (a) who

knowingly violates Section 12.154 is subject to a civil penalty

of $500 for each violation.

(c) A member, officer, or employee of the commission who in any

action is found by a preponderance of the evidence to have

violated a provision of Section 12.055 or 12.154 shall be removed

from the person's office or employment.

(d) A civil penalty under this section is recoverable in a suit

filed in the name of the commission by the attorney general on

the attorney general's own initiative or at the request of the

commission.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.030. OFFENSE. (a) A person commits an offense if the

person wilfully and knowingly violates this title.

(b) This section does not apply to an offense described by

Section 55.138.

(c) An offense under this section is a felony of the third

degree.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.031. PLACE FOR SUIT. A suit for an injunction or a

penalty under this title may be brought in:

(1) Travis County;

(2) a county in which the violation is alleged to have occurred;

or

(3) a county in which a defendant resides.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.032. PENALTIES CUMULATIVE. (a) A penalty that accrues

under this title is cumulative of any other penalty.

(b) A suit for the recovery of a penalty does not bar or affect

the recovery of any other penalty or bar a criminal prosecution

against any person.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 15.033. DISPOSITION OF FINES AND PENALTIES. A fine or

penalty collected under this title, other than a fine or penalty

collected in a criminal proceeding or a penalty collected under

Section 15.027(a), shall be paid to the commission.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER C. COMPLAINTS

Sec. 15.051. COMPLAINT BY AFFECTED PERSON. (a) An affected

person may complain to the regulatory authority in writing

setting forth an act or omission by a public utility in violation

or claimed violation of a law that the regulatory authority has

jurisdiction to administer or of an order, ordinance, or rule of

the regulatory authority.

(b) The commission shall keep for a reasonable period

information about each complaint filed with the commission that

the commission has authority to resolve. The information shall

include:

(1) the date the complaint is received;

(2) the name of the complainant;

(3) the subject matter of the complaint;

(4) a record of each person contacted in relation to the

complaint;

(5) a summary of the results of the review or investigation of

the complaint; and

(6) if the commission took no action on the complaint, an

explanation of the reason the complaint was closed without

action.

(c) The commission shall keep a file about each written

complaint filed with the commission that the commission has

authority to resolve. The commission shall provide to the person

filing the complaint and to each person or entity complained

about information concerning the commission's policies and

procedures on complaint investigation and resolution. The

commission, at least quarterly and until final disposition of the

complaint, shall notify the person filing the complaint and each

person or entity complained about of the status of the complaint

unless the notice would jeopardize an undercover investigation.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

797, Sec. 8, eff. September 1, 2005.

Sec. 15.052. COMPLAINT REGARDING RECREATIONAL VEHICLE PARK

OWNER. (a) An affected person may complain to the regulatory

authority in writing setting forth an act or omission by a

recreational vehicle park owner who provides metered electric

service under Subchapter C, Chapter 184, in violation or claimed

violation of a law that the regulatory authority has jurisdiction

to administer or of an order, ordinance, or rule of the

regulatory authority.

(b) The commission shall keep for a reasonable period an

information file about each complaint filed with the commission

relating to a recreational vehicle park owner.

(c) The commission, at least quarterly and until final

disposition of the written complaint, shall notify the parties to

the complaint of the status of the complaint unless the notice

would jeopardize an undercover investigation.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.