UTILITIES CODE
CHAPTER 15. JUDICIAL REVIEW, ENFORCEMENT, AND PENALTIES
SUBCHAPTER A. JUDICIAL REVIEW
§ 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, § 1, eff. Sept. 1, 1997.
§ 15.002. COMMISSION AS DEFENDANT. The commission must
be a defendant in a proceeding for judicial review.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
SUBCHAPTER B. ENFORCEMENT AND PENALTIES
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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 $5,000. Each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty.
(c) The amount of an administrative penalty shall be 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.
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.
§ 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,
§ 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,
§ 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, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 1212, § 3, eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 1579, § 2, eff. Aug. 30, 1999.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
SUBCHAPTER C. COMPLAINTS
§ 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. 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
