Does the jury or court consider any factors when assessing penalties for claims under Section 7.351 of the Texas Water Code?

Yes. Effective September 1, 2015, Section 7.359 was added which requires the trier of fact, when determining the amount of a civil penalty to be assessed, to consider the factors described by Section 7.053.   Those factors include:

  1. The nature, circumstances, extent, duration, and gravity of the prohibited act, with special emphasis on the impairment of existing water rights or the hazard or potential hazard created to the health or safety of the public;
  2. The impact of the violation on:
    • Air quality in the region;
    • A receiving stream or underground water reservoir;
    • In-stream uses, water quality, aquatic and wildlife habitat, or beneficial freshwater inflows to bays and estuaries; or
    • Affected persons;
  3. With respect to the alleged violator:
    • The history and extent of previous violations;
    • The degree of culpability, including whether the violation was attributable to mechanical or electrical failures and whether the violation could have been reasonably anticipated and avoided;
    • The demonstrated good faith, including actions taken by the alleged violator to rectify the cause of the violation and to compensate affected persons;
    • Economic benefit gained through the violation; and
    • The amount necessary to deter future violations
  4. Any other matters that justice may require.

However, local governments and the State of Texas frequently argue that these factors do not apply to lawsuits filed before September 1, 2015, and that, therefore, there is no guidance for the court or jury when assessing penalties against defendants.

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