CHAPTER 251. UNDERGROUND FACILITY DAMAGE PREVENTION AND SAFETY

Statutes > Texas Statutes > UTILITIES CODE > TITLE 5. PROVISIONS AFFECTING THE OPERATION OF UTILITY FACILITIES > CHAPTER 251. UNDERGROUND FACILITY DAMAGE PREVENTION AND SAFETY

UTILITIES CODE

TITLE 5. PROVISIONS AFFECTING THE OPERATION OF UTILITY FACILITIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 251.001. SHORT TITLE. This chapter may be cited as the

Underground Facility Damage Prevention and Safety Act.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.002. DEFINITIONS. In this chapter:

(1) "Class A underground facility" means an underground facility

that is used to produce, store, convey, transmit, or distribute:

(A) electrical energy;

(B) natural or synthetic gas;

(D) steam;

(E) any form of telecommunications service, including voice,

data, video, or optical transmission, or cable television

service; or

(F) any other liquid, material, or product not defined as a

Class B underground facility.

(2) "Class B underground facility" means an underground facility

that is used to produce, store, convey, transmit, or distribute:

(A) water;

(B) slurry; or

(3) "Corporation" means the Texas Underground Facility

Notification Corporation.

(4) "Damage" means:

(A) the defacing, scraping, displacement, penetration,

destruction, or partial or complete severance of an underground

facility or of any protective coating, housing, or other

protective device of an underground facility;

(B) the weakening of structural or lateral support of an

underground facility; or

underground facility.

(5) "Excavate" means to use explosives or a motor, engine,

hydraulic or pneumatically powered tool, or other mechanized

equipment of any kind and includes auguring, backfilling, boring,

compressing, digging, ditching, drilling, dragging, dredging,

grading, mechanical probing, plowing-in, pulling-in, ripping,

scraping, trenching, and tunneling to remove or otherwise disturb

soil to a depth of 16 or more inches.

(6) "Excavator" means a person that excavates or intends to

excavate in this state.

(7) "Exploration and production underground facility" means an

underground facility used by a person producing gas or oil, or

both, for the production of that gas or oil, including facilities

used for field separation, treatment, gathering, or storage of

gas or oil.

(8) "High speed data transmission" means a method of data

transmission that does not include facsimile or voice

transmission.

(9) "Legal holiday" means a holiday specified as a legal holiday

by Subchapter B, Chapter 662, Government Code.

(10) "Mechanized equipment" means equipment operated by

mechanical power, including a trencher, bulldozer, power shovel,

auger, backhoe, scraper, drill, cable or pipe plow, and other

equipment used to plow in or pull in cable or pipe.

(11) "Operator" means a person that operates an underground

facility.

(12) "Secured facility" means a parcel of land used for

commercial or industrial purposes that is surrounded entirely by

a fence or other means of preventing access, including a fence

with one or more gates that are locked at all times or monitored

by an individual who can prevent unauthorized access.

(13) "Underground facility" means a line, cable, pipeline

system, conduit, or structure that is located partially or

totally underground and that is used to produce, store, convey,

transmit, or distribute telecommunications, electricity, gas,

water, sewage, steam, or liquids such as petroleum, petroleum

products, or hazardous liquids.

(14) "Saturday notification" means a notice of intent to

excavate provided by an excavator to a notification center on a

Saturday before 11:59 a.m.

(15) "Violation" means a violation of Section 251.151, 251.152,

or 251.159.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.003. EXEMPTIONS. The following are not subject to this

chapter as underground facilities:

(1) an aboveground or underground storage tank, sump, or

impoundment or piping connected to an aboveground or underground

storage tank, sump, or impoundment located in the same tract of

land as the storage tank, sump, or impoundment;

(2) an underground facility operated by the owner of a secured

facility and located entirely within the secured facility;

(3) an underground facility that serves only the owner of the

underground facility or the owner's tenant and that is located

solely on the owner's property;

(4) piping within a well bore;

(5) the portion of an exploration and production underground

facility that is located within the boundaries of the oil or gas

field from which the oil and gas is produced and that is not

located in the boundaries of an established easement or

right-of-way granted for the benefit of a governmental entity or

a private entity if the easement or right-of-way is granted for a

public purpose; or

(6) an underground facility that serves a cemetery and is

located solely on the cemetery's property.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.004. APPLICATION TO CERTAIN CONTRACTORS AND STATE

EMPLOYEES. (a) This chapter does not apply to a contractor

working in the public right-of-way under a contract with the

Texas Department of Transportation.

(b) Excavation by an employee of the Texas Department of

Transportation on a segment of the state highway system is not

subject to this chapter if the excavation is more than 10 feet

from the right-of-way line.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999. Amended by Acts 2003, 78th Leg., ch. 1276, Sec.

17.004(a), eff. Sept. 1, 2003.

Sec. 251.005. CONVERSION OF FACILITY OR OPERATOR. (a) An

operator of an underground facility that is exempted under this

subchapter may voluntarily convert that facility to a Class A

underground facility by sending written communication from a

competent authority of the operator to the corporation advising

of the status change.

(b) An operator of a Class B underground facility may

voluntarily convert to a Class A underground facility operator by

sending written communication from a competent authority of the

operator to the corporation advising of the status change.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.006. COMPLIANCE BY PERMIT HOLDERS. (a) The fact that

a person has a legal permit, permission from the owner of the

property or the owner's licensee, or an easement to conduct

excavation operations does not affect the person's duty to comply

with this chapter.

(b) Compliance with this chapter does not affect a person's

responsibility to obtain a permit required by law.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.007. FACILITY ON COUNTY OR MUNICIPAL ROAD. This

chapter does not affect a contractual or statutory right of a

county or municipality to require an operator to relocate,

replace, or repair its underground facility.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.008. EFFECT ON CIVIL REMEDIES. Except as otherwise

specifically provided by this chapter, this chapter, including

Section 251.201, does not affect any civil remedy for personal

injury or for property damage, including any damage to an

underground facility.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.009. PROVISION OF GENERAL INFORMATION. At least once

each calendar year, at intervals not exceeding 15 months, each

Class A underground facility operator who conveys, transmits, or

distributes by means of its underground facilities service

directly to more than one million residential customers within

this state shall provide all of its residential customers in this

state general information about excavation activities covered by

this chapter and the statewide toll-free telephone number

established by the corporation.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

SUBCHAPTER B. TEXAS UNDERGROUND FACILITY NOTIFICATION CORPORATION

Sec. 251.051. PURPOSE. The Texas Underground Facility

Notification Corporation provides statewide notification services

under this chapter.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.052. NONPROFIT CORPORATION. The corporation is a

public nonprofit corporation and has all the powers and duties

incident to a nonprofit corporation under the Texas Non-Profit

Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil

Statutes), except that the corporation:

(1) may not make donations for the public welfare or for

charitable, scientific, or educational purposes or in aid of war

activities;

(2) may not merge or consolidate with another corporation;

(3) is not subject to voluntary or involuntary dissolution; and

(4) may not be placed in receivership.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.053. APPLICATION OF OPEN MEETINGS AND OPEN RECORDS

LAWS. The corporation is subject to Chapters 551 and 552,

Government Code, except that the corporation may not disseminate,

make available, or otherwise distribute service area map data or

information provided by an operator unless that action is

necessary to perform the corporation's specific obligations under

this chapter.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.054. EXPENSES AND LIABILITIES OF CORPORATION. (a) All

expenses of the corporation shall be paid from income of the

corporation.

(b) A liability created by the corporation is not a debt of this

state, and the corporation may not secure a liability with funds

or assets of this state.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.055. BOARD OF DIRECTORS. (a) The board of directors

of the corporation is composed of the following 12 members

appointed by the governor:

(1) six representatives of the general public;

(2) one representative of the gas industry;

(3) one representative of the telecommunications industry;

(4) one representative of the electric industry;

(5) one representative of cable television companies;

(6) one representative of municipalities; and

(7) one representative of persons who engage in excavation

operations who are not also facility operators.

(b) Board membership is voluntary and a director is not entitled

to receive compensation for serving on the board.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.056. TERMS. (a) Directors serve staggered three-year

terms, with the terms of four directors expiring each August 31.

(b) A director serves until the director's successor is

appointed by the governor and assumes office.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.057. DECLARATION OF BOARD VACANCY. (a) The board may

declare a director's office vacant if the director ceases to be

associated with the industry or an operator the director

represents.

(b) Not later than the 60th day after the date a vacancy on the

board is declared, the governor shall appoint a person to fill

the vacancy for the remainder of the unexpired term.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.058. OFFICERS. (a) The board shall elect from among

its directors a chair and vice chair.

(b) The chair and vice chair serve for a term of one year and

may be reelected.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.059. ENTITLEMENT TO VOTE. The corporation's bylaws

must provide that each director is entitled to one vote.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.060. DUTIES OF CORPORATION. The corporation shall

develop and implement processes to:

(1) maintain a registration of:

(A) notification centers as provided by Section 251.101(a)(3);

(B) operators who elect to convert facilities to Class A

facilities under Section 251.005(a); or

operators under Section 251.005(b);

(2) establish minimum technical standards used by notification

centers;

(3) establish a statewide toll-free telephone number to be used

by excavators that incorporates the use of a call router system

that routes calls to the notification centers on a pro rata

basis;

(4) oversee the bid process and select the vendor for the

statewide toll-free telephone number;

(5) oversee the bid process and select the vendor for the call

router system;

(6) determine before May 1 of each year the cost-sharing between

the notification centers of:

(A) the toll-free telephone number; and

(B) the call router system prescribed by Section 251.102(4);

(7) develop public service announcements to educate the public

about statewide one-call notification and its availability;

(8) establish a format for information transfer among

notification centers other than high speed data transmission, if

appropriate;

(9) on a complaint concerning charges, investigate and determine

appropriate charges;

(10) recommend a civil penalty against a notification center

that does not meet the requirements of this chapter of not less

than $1,000 or more than $5,000 for each violation;

(11) refer the recommended penalty to the attorney general, who

shall institute a suit in a court of competent jurisdiction to

recover the penalty;

(12) assist in dispute resolution among notification centers or

between a notification center and an operator;

(13) assist any operator who encounters difficulty in joining a

notification center; and

(14) review and study design standards for the placement of

underground facilities throughout this state.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.061. CONTRACT FOR STATEWIDE TOLL-FREE NUMBER AND CALL

ROUTER SYSTEM. (a) The corporation shall solicit proposals for

the contract to establish and operate the statewide toll-free

telephone number and the call router system by using a request

for proposals process that includes specifications that have been

approved by the board of directors in accordance with this

chapter.

(b) The corporation is not required to award the contract to the

lowest offeror if the terms of another proposal would result in a

lower annual cost and are more advantageous to the corporation

and its members. The corporation may reject all proposals if the

corporation finds that none of the proposals is acceptable.

the consideration of a proposal or the award of a contract and

the text of the contract are considered books and records of the

corporation for the purposes of Article 2.23, Texas Non-Profit

Corporation Act (Article 1396-2.23, Vernon's Texas Civil

Statutes).

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.062. FEES AND RATES. (a) Except as provided by this

section, the corporation may not, for any reason, impose an

assessment, fee, or other charge, including a charge for

inputting data, against an operator.

(b) Before January 15 of each year, a Class A facility operator

shall pay to the corporation a fee of $50 for services to be

performed by the corporation during that calendar year. A fee for

a part of a year may not be prorated.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

SUBCHAPTER C. NOTIFICATION CENTERS

Sec. 251.101. NOTIFICATION CENTER. (a) A notification center

is a legal entity that:

(1) operates a notification system capable of serving excavators

and operators statewide;

(2) is created to:

(A) receive notification of an intent to excavate and of damage

to an underground facility and disseminate that information to

member operators that may be affected by the excavation or damage

and to other notification centers operating in this state; and

(B) receive notification of an extraordinary circumstance and

disseminate that information to member operators and to other

notification centers operating in this state; and

(3) registers the following information with the corporation:

(A) its name, address, and telephone number;

(B) the name of a contact person;

(D) a listing of the counties in which it operates.

(b) A notification center operating on September 1, 1997, may

continue to operate if the notification center complies with this

chapter.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.102. GENERAL DUTIES OF NOTIFICATION CENTER. A

notification center shall:

(1) operate 24 hours a day every day of the year;

(2) have the capability to receive emergency information 24

hours a day from excavators and disseminate the information as

soon as it is received to the appropriate operators and to all

registered and affected notification centers operating in this

state;

(3) have the capacity to receive extraordinary circumstance

information 24 hours a day from operators and disseminate the

information as soon as it is received to all registered and

affected notification centers;

(4) submit to the corporation, not later than May 15 of each

year, a pro rata share of the expense, as established by the

corporation, of the statewide toll-free telephone number and the

call router;

(5) provide, on request of an excavator, a contact name and

telephone number of a representative of the operator for special

circumstances; and

(6) have personnel capable of assisting Spanish-speaking

customers.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.103. RECORDS. (a) A notification center shall

maintain for not less than four years a record to document:

(1) the receipt of a notice of:

(A) intent to excavate;

(B) damage to an underground facility;

(D) an extraordinary circumstance;

(2) the information the excavator is required to provide to the

notification center under this chapter;

(3) contact with operators and other notification centers; and

(4) the information the notification center provided to the

excavator.

(b) A notification center may not destroy records that relate to

any matter that is involved in litigation if the notification

center is placed on notice that the litigation has not been

finally resolved.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.104. INSURANCE. A notification center shall, at all

times, maintain a minimum of $5 million professional liability

and errors and omissions insurance to cover duties prescribed by

this chapter.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.105. FEES AND CHARGES. (a) A notification center that

notifies another notification center under Section 251.102(2) or

(3) or Section 251.153(b) shall recover an amount not exceeding

the actual cost of providing the notice from the notification

center receiving the notice.

(b) The notification center shall charge a Class A underground

facility operator not more than $1.25 for a call made to the

system that affects the operator. The board may increase or

decrease the maximum charge only on an affirmative vote of at

least two-thirds of the total number of votes entitled to be

cast. A notification center may petition the corporation for an

increase in the maximum charge and is entitled to the increase on

proof that costs exceed the maximum charge.

additional fee such as an initiation fee, a membership fee, or a

set-up fee.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.106. PAYMENTS TO CORPORATION. Each time a notification

center receives a call from an excavator under Section 251.151,

the notification center shall pay the corporation five cents. The

corporation shall waive this charge for the remainder of any year

in which the corporation receives $250,000 under this section.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999. Amended by Acts 2001, 77th Leg., ch. 652, Sec. 1, eff.

Sept. 1, 2001.

Sec. 251.107. DUTY TO PARTICIPATE IN NOTIFICATION CENTER. (a)

Each operator of a Class A underground facility, including a

political subdivision of this state, shall participate in a

notification center as a condition of doing business in this

state.

(b) Each operator of a Class A underground facility shall

provide to the notification center:

(1) maps or grid locations or other identifiers determined by

the operator indicating the location of the operator's

underground facilities;

(2) the name and telephone number of a contact person or

persons; and

(3) at least quarterly but, if possible, as those changes occur,

information relating to each change in the operator's maps or

grid locations or other identifiers or in the person or persons

designated as the operator's contact person or persons.

conduct a survey of the operator's underground facilities or

alter the operator's existing signage.

(d) A notification center may not disseminate, make available,

or otherwise distribute maps or information provided by an

operator unless that action is necessary to perform the

notification center's specific obligations under this chapter.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

SUBCHAPTER D. REQUIREMENTS RELATING TO EXCAVATION

Sec. 251.151. DUTY OF AN EXCAVATOR. (a) Except as provided by

Sections 251.155 and 251.156, a person who intends to excavate

shall notify a notification center not earlier than the 14th day

before the date the excavation is to begin or later than the 48th

hour before the time the excavation is to begin, excluding

Saturdays, Sundays, and legal holidays.

(b) Notwithstanding Subsection (a), if an excavator makes a

Saturday notification, the excavator may begin the excavation the

following Tuesday at 11:59 a.m. unless the intervening Monday is

a holiday. If the intervening Monday is a holiday, the excavator

may begin the excavation the following Wednesday at 11:59 a.m.

operator shall contact the excavator and advise the excavator of

the operator's intent to be present during excavation and confirm

the start time of the excavation. If the excavator wants to

change the start time, the excavator shall notify the operator to

set a mutually agreed-to time to begin the excavation.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.152. INFORMATION INCLUDED IN NOTICE. The excavator

shall include in the notice required under Section 251.151:

(1) the name of the person serving the notice;

(2) the location of the proposed area of excavation, including:

(A) the street address, if available, and the location of the

excavation at the street address; or

(B) if there is no street address, an accurate description of

the excavation area using any available designations such as the

closest street, road, or intersection;

(3) the name, address, and telephone number of the excavator or

the excavator's company;

(4) the excavator's field telephone number, if one is available;

(5) a telephone facsimile number, e-mail address, or another

electronic number or address approved by the board to which an

operator may send the notification required by Section

251.157(d);

(6) the starting date and time and the anticipated completion

date of excavation; and

(7) a statement as to whether explosives will be used.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999. Amended by Acts 2001, 77th Leg., ch. 858, Sec. 1, eff.

Nov. 1, 2001.

Sec. 251.153. DUTY OF NOTIFICATION CENTER. (a) At the time an

excavator provides a notification center with the excavator's

intent to excavate, the notification center shall advise the

excavator that water, slurry, and sewage underground facilities

in the area of the proposed excavation may not receive

information concerning the excavator's proposed excavation.

(b) Not later than two hours after the time the notification

center receives a notice of intent to excavate from an excavator,

the notification center shall provide to every other affected

notification center operating in this state the information

required by Section 251.152 and received from the excavator. The

notification center shall provide the information by the use of

high speed data transmission.

center receives a notice of intent to excavate from an excavator

or from a different notification center, the notification center

shall notify each member operator that may have an underground

facility in the vicinity of the proposed excavation operation.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.154. NOTIFICATION BY AN EXCAVATOR. (a) A person

required to provide notice under this chapter is considered to

have provided the notice when the person delivers the required

information and a notification center receives that information

within the time limits prescribed by this chapter.

(b) A person may deliver information required under this chapter

by any appropriate method, including the use of any electronic

means of data transfer.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.155. EXCEPTION IN CASE OF EMERGENCY. (a) Section

251.151 does not apply to an emergency excavation that is

necessary to respond to a situation that endangers life, health,

or property or a situation in which the public need for

uninterrupted service and immediate reestablishment of service if

service is interrupted compels immediate action.

(b) The excavator may begin emergency excavation under

Subsection (a) immediately and shall take reasonable precautions

to protect underground facilities.

notification center as promptly as reasonably possible.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.156. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS. (a)

Section 251.151 does not apply to:

(1) interment operations of a cemetery;

(2) operations at a secured facility if:

(A) the excavator operates each underground facility at the

secured facility, other than those within a third-party

underground facility easement or right-of-way; and

(B) the excavation activity is not within a third-party

underground facility or right-of-way;

(3) routine railroad maintenance within 15 feet of either side

of the midline of the track if the maintenance will not disturb

the ground at a depth of more than 18 inches;

(4) activities performed on private property in connection with

agricultural operations;

(5) operations associated with the exploration or production of

oil or gas if the operations are not conducted within an

underground facility easement or right-of-way;

(6) excavations by or for a person that:

(A) owns, leases, or owns a mineral leasehold interest in the

real property on which the excavation occurs; and

(B) operates all underground facilities located at the

excavation site; or

(7) routine maintenance by a county employee on a county road

right-of-way to a depth of not more than 24 inches.

(b) If a person excepted under Subsection (a)(4) elects to

comply with this chapter and the operator fails to comply with

this chapter, the person is not liable to the underground

facility owner for damages to the underground facility.

(1) "Agricultural operations" means activities performed on land

and described by Section 23.51(2), Tax Code.

(2) "Routine maintenance" means operations, not to exceed 24

inches in depth, within a road or drainage ditch involving

grading and removal or replacement of pavement and structures.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.157. DUTY OF OPERATOR TO PERSON EXCAVATING. (a) Each

Class A underground facility operator contacted by the

notification system shall mark the approximate location of its

underground facilities at or near the site of the proposed

excavation if the operator believes that marking the location is

necessary. The operator shall mark the location not later than:

(1) the 48th hour after the time the excavator gives to the

notification system notice of intent to excavate, excluding

Saturdays, Sundays, and legal holidays;

(2) 11:59 a.m. on the Tuesday following a Saturday notification

unless the intervening Monday is a holiday;

(3) 11:59 a.m. on the Wednesday following a Saturday

notification if the intervening Monday is a holiday; or

(4) a time agreed to by the operator and the excavator.

(b) An operator shall refer to the American Public Works

Association color coding standards when marking.

not be liable for damage to an underground facility that was not

marked in accordance with this chapter.

(d) Not later than the 48th hour after the time the excavator

gives to the notification center notice of intent to excavate, an

operator contacted by the notification center shall notify the

excavator of the operator's plans to not mark the proximate

location of an underground facility at or near the site of the

proposed excavation. The operator must provide the notification

by e-mail or facsimile or by another verifiable electronic method

approved by the board.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999. Amended by Acts 2001, 77th Leg., ch. 858, Sec. 2, eff.

Nov. 1, 2001.

Sec. 251.158. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY

CIRCUMSTANCE. (a) The deadline prescribed by Section 251.157(a)

does not apply if the operator experiences an extraordinary

circumstance due to an act of God, including a tornado, a

hurricane, an ice storm, or a severe flood, or a war, riot, work

stoppage, or strike that limits personnel or resources needed to

fulfill the operator's obligations under this chapter.

(b) The operator shall notify a notification center of the

extraordinary circumstance and shall include in the notification:

(1) the nature and location of the extraordinary circumstance;

(2) the expected duration of the situation and the approximate

time at which the operator will be able to resume location

request activities; and

(3) the name and telephone number of the individual that the

notification system can contact if there is an emergency that

requires the operator's immediate attention.

the operator shall also notify each excavator that has a pending

location request in the location where an extraordinary

circumstance is being experienced and shall include in the

notification:

(1) the fact that the operator is experiencing an extraordinary

circumstance; and

(2) the approximate time at which the operator will mark the

requested location.

(d) A notification center shall inform each excavator notifying

the system under Section 251.151 that the operator's location

request activities are suspended until the extraordinary

circumstance has discontinued or has been corrected within the

affected location.

(e) An excavator is relieved from all provisions of this chapter

until the operator notifies the notification center that the

operator has resumed location request activities within the

affected location.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.159. EXCAVATION DAMAGE. (a) If an excavation

operation results in damage to an underground facility, the

excavator shall immediately contact the underground facility

operator to report the damage.

(b) If the excavator is not certain of the operator's identity,

the excavator shall contact a notification center to report the

damage, and the notification center shall immediately notify all

other affected notification centers. Immediately on receiving

notification, each notification center shall contact each member

operator that has underground facilities in or near the area in

which the damage occurred.

perform repairs, and the repairs must be made in an expeditious

manner.

(d) An excavator shall delay backfilling in the immediate area

of the damage until the damage is reported to the operator and a

repair schedule is mutually agreed to by the excavator and the

operator.

(e) If damage endangers life, health, or property because of the

presence of flammable material, the excavator shall keep sources

of ignition away.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

SUBCHAPTER E. PENALTIES

Sec. 251.201. CIVIL PENALTY OR WARNING LETTER. (a) An

excavator that violates Section 251.151, 251.152, or 251.159 is

liable for a civil penalty of not less than $500 or more than

$1,000. If a county attorney or district attorney decides not to

bring an action to recover the civil penalty, the board of

directors of the corporation may, in accordance with Section

251.2011, give the excavator a warning letter and require the

excavator to attend a safety training course approved by the

board. The county attorney or district attorney shall notify the

board of its decision.

(b) If it is found at the trial on a civil penalty that the

excavator has violated this chapter and has been assessed a

penalty under this section or has received a warning letter from

the board one other time before the first anniversary of the date

of the most recent violation, the excavator is liable for a civil

penalty of not less than $1,000 or more than $2,000.

excavator has violated this chapter and has been assessed a

penalty under this section at least two other times before the

first anniversary of the date of the most recent violation, or

has been assessed a penalty at least one other time before the

first anniversary of the date of the most recent violation and

has received a warning letter from the board during that period,

the excavator is liable for a civil penalty of not less than

$2,000 or more than $5,000.

(d) In assessing the civil penalty the court shall consider the

actual damage to the facility, the effect of the excavator's

actions on the public health and safety, whether the violation

was a wilful act, and any good faith of the excavator in

attempting to achieve compliance.

(e) Venue for a proceeding to collect a civil penalty under this

section is in the county in which:

(1) all or part of the alleged violation occurred;

(2) the defendant has its principal place of business in this

state; or

(3) the defendant resides, if in this state.

(f) The appropriate county attorney or criminal district

attorney shall bring the action to recover the civil penalty.

(g) This section does not apply to a residential property owner

excavating on the property owner's own residential lot.

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999. Amended by Acts 2001, 77th Leg., ch. 652, Sec. 2, eff.

Sept. 1, 2001.

Sec. 251.2011. WARNING LETTER AND SAFETY TRAINING COURSE. (a)

The board of directors of the corporation shall establish a

procedure to ensure that the board verifies that an excavator has

violated Section 251.151, 251.152, or 251.159 before giving the

excavator a warning letter and requiring the excavator to attend

a safety training course under Section 251.201.

(b) The board shall solicit and consider advice and

recommendations from excavators in establishing or approving a

safety training course that an excavator may be required to

attend under Section 251.201.

Added by Acts 2001, 77th Leg., ch. 652, Sec. 3, eff. Sept. 1,

2001.

Sec. 251.202. ALLOCATION OF CIVIL PENALTY. (a) Fifty percent

of the civil penalty collected under Section 251.201 shall be

transferred to the county treasurer of the county prosecuting the

action and 50 percent of the civil penalty collected under

Section 251.201 shall be transferred to the corporation.

(b) The county treasurer shall deposit all money received under

this section in the county road and bridge fund.

section to develop public service announcements to educate the

public about the statewide one-call notification system and its

availability as prescribed by Section 251.060(7).

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

Sec. 251.203. CRIMINAL PENALTY FOR REMOVAL, DAMAGE, OR

CONCEALMENT OF MARKER OR SIGN. (a) A person commits an offense

if:

(1) the person without authorization from the owner or operator

of the facility intentionally removes, damages, or conceals a

marker or sign giving information about the location of a Class A

underground facility; and

(2) the marker or sign gives notice of the penalty for

intentional removal, damage, or concealment of the marker or

sign.

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

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.17(a), eff. Sept.

1, 1999.

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Texas Codes and Statutes

CHAPTER 251. UNDERGROUND FACILITY DAMAGE PREVENTION AND SAFETY