| (a) The commissioner may recover a penalty of not less than $50 or more than $1,000 for each day that a person constructs, owns, operates, possesses, or exercises control over an unauthorized structure or facility on state land. (1) In determining penalties to be assessed under the provisions of Texas Natural Resources Code, §51.302 and §51.3021, in performing duties and responsibilities imposed under Texas Natural Resources Code, Chapters 33 and 51, the commissioner shall consider: (A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard and damage, including damage to natural resources, caused thereby; (B) the degree of cooperation of the owner and operator once that person was given notice of the violation; (C) the degree of culpability and the history of previous violations by the owner or operator; (D) the amount necessary to deter future violations; and (E) any other matter relevant to a fair and just result. (2) Penalties shall be assessed, in the discretion of the commissioner, when any violation of Texas Natural Resources Code, §51.302 (concerning Prohibition and Penalty) and §51.3021 (concerning Removal of a Facility or Structure by Commissioner) occurs. The amount of the minimum penalty assessed shall be according to a penalty schedule, approved by the commissioner with the concurrence of the School Land Board, and available for public inspection and review. The commissioner retains the right to assess any penalty amount depending upon the particular circumstances of the matter and in accordance with this subsection. (3) Prior to a final order of the commissioner assessing a penalty or ordering the removal of an unauthorized facility or structure, the owner or operator shall be entitled to a hearing. The hearing shall be conducted in accordance with the provisions of Texas Government Code, §2001.001 et seq. (b) The commissioner may remove and dispose of a facility or structure on state land if the commissioner finds the facility or structure to be: (1) not authorized by a proper easement, lease, permit or other instrument from the state required by the Texas Natural Resources Code, Chapter 33 or 51; or (2) an imminent and unreasonable threat to public health, safety, or welfare. (c) An owner or operator is any person who constructs, maintains, owns, or possesses the facility or structure and also includes, in the case of an abandoned facility or structure, the person who last owned, possessed, constructed, operated, or exercised control over the facility or structure. (d) At the discretion of the commissioner, before any formal action is taken to impose a penalty and/or remove a structure under the provisions of Texas Natural Resources Code, §51.302 and §51.3021, the owner or operator of the structure may be notified that the structure is not in compliance with applicable statutory requirements and may be given a reasonable period of time to bring the structure into compliance. (e) To initiate formal action to impose a penalty and/or remove a structure under the provisions of Texas Natural Resources Code, §51.302 and §51.3021, the deputy commissioner shall give written notice to the owner or operator of the structure or facility stating: (1) the specific facility or structure that is not authorized by a proper easement, lease, permit, or other instrument from the state required by the Texas Natural Resources Code or that threatens the public health, safety, or welfare; (2) the nature of the threat, if alleged, to public health, safety, or welfare; (3) that the owner or operator of the facility or structure shall remove the facility or structure: (A) not later than the 30th day after the date on which the notice is served, if the facility or structure is on state land and not authorized by a proper lease, easement, permit, or other instrument required by the Texas Natural Resources Code; or (B) within a reasonable time specified by the deputy commissioner if the facility or structure is an imminent and unreasonable threat to public health, safety, or welfare; (4) that failure to remove the facility or structure may result in liability for a penalty under Texas Natural Resources Code, §51.302(b), in an amount specified, removal by the commissioner and liability for the costs of removal, attachment of a lien to the adjacent littoral property to secure payment of the penalty and costs of removal, or any combination of such remedies; (5) that the owner or operator of the facility or structure may submit, not later than the 30th day after the date on which the notice is served, written request for a hearing by serving written notice of such request to: Administrative Hearings Clerk, Texas General Land Office, 1700 North Congress Avenue, Room 630, Austin, Texas 78701-1495. (f) The notice required by subsection (e) of this section must be given to the owner or operator: (1) by service in person or by registered or certified mail, return receipt requested; or (2) if personal service cannot be obtained or the address of the owner or operator responsible is unknown, by posting a copy of the notice on the facility or structure and by publishing notice in a newspaper with general circulation in the county in which the facility or structure is located two times within ten consecutive days. |
