AN ACT
1-1 relating to the regulation of certain retail sellers and retail
1-2 establishments; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 403, Government Code, is amended by
1-5 adding Subchapter N to read as follows:
1-6 SUBCHAPTER N. MISCELLANEOUS DUTIES OF COMPTROLLER
1-7 Sec. 403.321. INTERAGENCY TASK FORCE ON TEXAS RETAIL FOOD
1-8 STORE REGULATION. (a) An interagency task force is created to
1-9 advise and assist the comptroller on coordinating state agency
1-10 regulation of retail food stores.
1-11 (b) The office of the comptroller is the lead agency for the
1-12 task force and shall administer the activities of the task force.
1-13 (c) The task force is composed of a representative of:
1-14 (1) the Department of Agriculture, appointed by the
1-15 commissioner of agriculture;
1-16 (2) the Texas Department of Commerce, appointed by the
1-17 executive director of the department;
1-18 (3) the Texas Department of Health, appointed by the
1-19 commissioner of public health;
1-20 (4) the Parks and Wildlife Department, appointed by
1-21 the executive director of the department;
1-22 (5) the comptroller, appointed by the comptroller;
1-23 (6) the Texas Alcoholic Beverage Commission, appointed
2-1 by the administrator of the commission;
2-2 (7) the Texas Retailers Association, appointed by the
2-3 association;
2-4 (8) the Texas Food Industry Association, appointed by
2-5 the association;
2-6 (9) the Texas Petroleum Marketers and Convenience
2-7 Store Association, appointed by the association;
2-8 (10) a rural local health department, appointed by the
2-9 governor;
2-10 (11) an urban local health department, appointed by
2-11 the governor;
2-12 (12) rural consumers, appointed by Consumers Union;
2-13 (13) urban consumers, appointed by Consumers Union;
2-14 and
2-15 (14) vendors and suppliers to retail stores, appointed
2-16 jointly by the comptroller and the commissioner of agriculture.
2-17 (d) A licensing and regulatory agency shall make available
2-18 to the task force information considered necessary by the task
2-19 force.
2-20 (e) The task force may invite representatives of state
2-21 agencies, consumer groups, or business groups to participate in the
2-22 activities of the task force.
2-23 (f) The task force shall:
2-24 (1) elect a presiding officer and an assistant
2-25 presiding officer;
3-1 (2) study the regulation of retail food stores; and
3-2 (3) report to the legislature regarding the task
3-3 force's study of the regulation of retail food stores.
3-4 (g) The task force shall consider and include in the report
3-5 required by Subsection (f)(3) the task force's recommendations
3-6 concerning:
3-7 (1) state agencies' procedures for:
3-8 (A) issuing original and renewal licenses and
3-9 permits; and
3-10 (B) collecting and disbursing fees;
3-11 (2) opportunities to consolidate state agencies'
3-12 licensing and fee collection activities;
3-13 (3) integration of uniform product code price scanner
3-14 inspection into the sales tax audit process;
3-15 (4) establishment of a consolidated retail food store
3-16 application and licensing program to administer all licenses
3-17 related to retail food stores;
3-18 (5) reduction of paperwork;
3-19 (6) reduction of any amount of time that scales and
3-20 other equipment are out of service;
3-21 (7) continuation of adequate consumer protection;
3-22 (8) creation of private sector employment
3-23 opportunities;
3-24 (9) opportunities to eliminate the Department of
3-25 Agriculture's responsibilities for the inspection of eggs that are
4-1 sold or offered for sale at retail in this state while ensuring
4-2 that an egg producer in another state that sells eggs directly to a
4-3 retail egg dealer in this state is held to the same standards as an
4-4 egg producer in this state; and
4-5 (10) any other regulatory matter pertaining to a
4-6 retail food store that a majority of the members of the task force
4-7 considers advisable.
4-8 (h) This section expires June 1, 1999.
4-9 SECTION 2. Section 13.002, Agriculture Code, is amended by
4-10 amending Subsection (a) and adding Subsection (c) to read as
4-11 follows:
4-12 (a) Except as provided by Subsection (c), the [The]
4-13 department shall enforce the provisions of this chapter and shall
4-14 supervise all weights and measures sold or offered for sale in this
4-15 state. The department may purchase apparatus as necessary for the
4-16 administration of this chapter.
4-17 (c) The Texas State Board of Pharmacy shall enforce the
4-18 provisions of this chapter relating to the compounding of drugs in
4-19 pharmacies and shall supervise all weights and measures sold,
4-20 offered for sale, or used in this state for the compounding of
4-21 drugs in pharmacies.
4-22 SECTION 3. Subchapter H, Chapter 13, Agriculture Code, is
4-23 amended by adding Section 13.4041 to read as follows:
4-24 Sec. 13.4041. BUSINESS OPPORTUNITY INFORMATION. The Texas
4-25 Department of Commerce shall cooperate with the department to:
5-1 (1) disseminate information regarding business
5-2 opportunities available to a person who performs tests of the
5-3 accuracy of weighing or measuring devices in this state; and
5-4 (2) develop markets for providers of testing services
5-5 that test the accuracy of weighing or measuring devices in this
5-6 state.
5-7 SECTION 4. Effective September 1, 1999, Subchapter H,
5-8 Chapter 13, Agriculture Code, is amended by adding Section 13.4042
5-9 to read as follows:
5-10 Sec. 13.4042. PRIVATE TESTING REQUIREMENT. (a) Employees
5-11 of the department or, by interagency contract, employees of other
5-12 state agencies acting on behalf of the department may not perform
5-13 more than 50 percent of the inspections or tests required by law of
5-14 the accuracy of weighing or measuring devices in this state.
5-15 (b) Subsection (a) does not prohibit an agent of the
5-16 department from performing an inspection or a test of the accuracy
5-17 of a weighing or measuring device in this state.
5-18 (c) This section expires September 1, 2001.
5-19 SECTION 5. Effective September 1, 2001, Subchapter H,
5-20 Chapter 13, Agriculture Code, is amended by adding Section 13.4043
5-21 to read as follows:
5-22 Sec. 13.4043. PRIVATE TESTING REQUIREMENT. (a) Employees
5-23 of the department or by interagency contract employees of other
5-24 state agencies acting on behalf of the department may not perform
5-25 more than 25 percent of the inspections or tests required by law of
6-1 the accuracy of weighing or measuring devices.
6-2 (b) Subsection (a) does not prohibit an agent of the
6-3 department from performing an inspection or test of the accuracy of
6-4 a weighing or measuring device in this state.
6-5 SECTION 6. The heading of Chapter 19, Business & Commerce
6-6 Code, is amended to read as follows:
6-7 CHAPTER 19. FARM, INDUSTRIAL, OFF-ROAD CONSTRUCTION,
6-8 AND OUTDOOR POWER EQUIPMENT DEALER AGREEMENTS
6-9 SECTION 7. Subdivisions (5) and (8), Section 19.01, Business
6-10 & Commerce Code, are amended to read as follows:
6-11 (5) "Dealer" means a person in the business of the
6-12 retail sale of equipment. [The term does not include a person
6-13 whose principal business is the sale of off-road construction
6-14 equipment.]
6-15 (8) "Equipment" means farm tractors, farm implements,
6-16 utility tractors, industrial tractors, off-road construction
6-17 equipment, and outdoor power equipment and the attachments to or
6-18 repair parts for those items.
6-19 SECTION 8. Subsection (a), Section 19.43, Business &
6-20 Commerce Code, is amended to read as follows:
6-21 (a) If on termination of a dealer agreement the dealer
6-22 delivers to the supplier or a person designated by the supplier the
6-23 inventory that was purchased from the supplier and that is held by
6-24 the dealer on the date of the termination, the supplier shall pay
6-25 to the dealer:
7-1 (1) the dealer cost of new, unsold, undamaged, and
7-2 complete farm tractors, farm implements, utility tractors,
7-3 industrial tractors, forklifts, material-handling equipment,
7-4 outdoor power equipment, off-road construction equipment, and
7-5 attachments returned by the dealer;
7-6 (2) an amount equal to 85 percent of the current price
7-7 of new, undamaged repair parts returned by the dealer; and
7-8 (3) an amount equal to an additional five percent of
7-9 the current price of new, undamaged repair parts returned by the
7-10 dealer, unless the supplier performs the handling, packing, and
7-11 loading of the parts, in which case no additional amount is
7-12 required under this subdivision.
7-13 SECTION 9. Section 438.034, Health and Safety Code, is
7-14 amended to read as follows:
7-15 Sec. 438.034. Employee Cleanliness. (a) A person handling
7-16 food or unsealed food containers shall:
7-17 (1) maintain personal cleanliness;
7-18 (2) wear clean outer garments;
7-19 (3) keep the person's hands clean; and
7-20 (4) either:
7-21 (A) wash the person's hands and exposed portions
7-22 of their arms with soap and water:
7-23 (i) before starting work;
7-24 (ii) during work as often as necessary to
7-25 avoid cross-contaminating food and to maintain cleanliness; and
8-1 (iii) after smoking, eating, and each
8-2 visit to the toilet; or
8-3 (B) avoid bare-hand contact with exposed food by
8-4 use of gloves or utensils and hand wash after smoking, eating, and
8-5 each visit to the toilet.
8-6 (b) In no case may a state or local authority require food
8-7 service personnel to avoid bare-hand contact with exposed food.
8-8 SECTION 10. Subchapter A, Chapter 47, Parks and Wildlife
8-9 Code, is amended by adding Section 47.0113 to read as follows:
8-10 Sec. 47.0113. MEMORANDUM OF AGREEMENT. (a) The department
8-11 shall initiate negotiations for and enter into a memorandum of
8-12 agreement with the Texas Department of Health to consolidate the
8-13 license and permit application process for retail food stores that
8-14 sell aquatic products.
8-15 (b) The memorandum must be adopted by the Texas Board of
8-16 Health and the commission.
8-17 (c) After the commission and the Texas Board of Health have
8-18 adopted a memorandum of agreement, the department shall publish the
8-19 memorandum of agreement in the Texas Register.
8-20 (d) The memorandum of agreement must provide that the Texas
8-21 Department of Health shall collect information to identify each
8-22 retail food store that sells aquatic products as a part of a food
8-23 retailing business and provide that information to the department.
8-24 SECTION 11. Chapter 1033, Acts of the 71st Legislature,
8-25 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
9-1 Statutes), is amended to read as follows:
9-2 Sec. 1. Definitions. In this Act:
9-3 (1) "Automotive fuel rating" has the meaning assigned
9-4 by 15 U.S.C. Section 2821.
9-5 (2) "Dealer" has the meaning assigned by Section
9-6 153.001, Tax Code [means a person who is the operator of a service
9-7 station or other retail outlet and who delivers motor fuel into the
9-8 fuel tanks of motor vehicles or motor boats].
9-9 (3) "Distributor" has the meaning assigned by Section
9-10 153.001, Tax Code.
9-11 (4) [(2)] "Motor fuel" has the meaning assigned [given
9-12 that term] by Section 153.001, Tax Code.
9-13 (5) "Supplier" has the meaning assigned by Section
9-14 153.001, Tax Code.
9-15 Sec. 2. Testing. In order to determine compliance with the
9-16 standards and for the enforcement of rules adopted under Sections
9-17 3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture
9-18 [comptroller of public accounts or an authorized representative of
9-19 the comptroller, any law enforcement officer at the direction of a
9-20 prosecuting attorney, or the attorney general] may test any motor
9-21 fuel sold in this state, with or without a complaint about the
9-22 fuel. The commissioner may adopt rules relating to the frequency
9-23 of testing of motor fuels. In adopting rules relating to the
9-24 frequency of testing of motor fuels, the commissioner shall
9-25 consider the nature of the violation, history of past violations,
10-1 and funds available as provided by Section 9(e) of this Act.
10-2 Sec. 3. Posting notice of sale of alcohol and motor fuel
10-3 mixture. (a) A [motor fuel] dealer in this state may not sell or
10-4 offer for sale any motor fuel from a motor fuel pump that is
10-5 supplied by a storage tank into which motor fuel containing ethanol
10-6 in a mixture in which one percent or more of the mixture measured
10-7 by volume is ethanol or into which motor fuel containing methanol
10-8 in a mixture in which one percent or more of the mixture measured
10-9 by volume is methanol has been delivered within the 60-day period
10-10 preceding the day of sale or offer of sale, unless the dealer
10-11 prominently displays on the pump from which the mixture is sold a
10-12 sign that complies with the requirements of Subsection (b) of this
10-13 section.
10-14 (b)(1) The sign required under Subsection (a) of this
10-15 section must be displayed on each face of the motor fuel pump on
10-16 which the price of the motor fuel mixture sold from the pump is
10-17 displayed. The sign must state "Contains Ethanol" or "Contains
10-18 Methanol," as applicable. The sign must appear in contrasting
10-19 colors with block letters at least one-half inch in height and
10-20 one-fourth inch in width and shall be displayed in a clear,
10-21 conspicuous, and prominent manner, visible to customers using
10-22 either side of the pump.
10-23 (2) In addition to the requirements of Subsection
10-24 (b)(1) of this section, if a motor fuel pump is supplied by a
10-25 storage tank into which motor fuel containing 10 percent or more
11-1 ethanol by volume or five percent or more methanol by volume has
11-2 been delivered within the 60-day period preceding the day of the
11-3 sale or offer of sale, the sign shall state the percentage of
11-4 ethanol or methanol by volume, to the nearest whole percent, of the
11-5 motor fuel having the highest percentage of ethanol or methanol
11-6 delivered into that storage tank within the 60-day period. This
11-7 subsection does not prohibit the posting of other alcohol or
11-8 additive information, the information and posting being subject to
11-9 regulations by the commissioner of agriculture.
11-10 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
11-11 LOWER THAN RATING POSTED ON PUMP LABEL. A dealer may not sell or
11-12 offer for sale motor fuel from a motor fuel pump if the motor fuel
11-13 has an automotive fuel rating that is lower than the automotive
11-14 fuel rating for that motor fuel posted on the pump.
11-15 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
11-16 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
11-17 may not deliver or transfer motor fuel to a dealer if the fuel has
11-18 an automotive fuel rating that is lower than the certification of
11-19 the automotive fuel rating the distributor or supplier is required
11-20 to make to the motor fuel dealer under federal law.
11-21 Sec. 4. Documentation of motor fuel mixture sales. (a) A
11-22 distributor, supplier, wholesaler, or jobber of motor fuel, as
11-23 those persons are defined by Section 153.001, Tax Code, may not
11-24 make a delivery of motor fuel containing ethanol or methanol if the
11-25 ethanol or methanol in the motor fuel mixture exceeds one percent
12-1 by volume, other than a delivery made into the fuel supply tanks of
12-2 a motor vehicle, to any outlet in this state unless the person
12-3 delivers to the outlet receiving the delivery at the time of the
12-4 delivery of the mixture:
12-5 (1) the sign described in Section 3 of this Act in
12-6 sufficient quantities for the dealer receiving the motor fuel
12-7 mixture to comply with the requirements of this Act; and
12-8 (2) a manifest, bill of sale, bill of lading, or any
12-9 other document evidencing delivery of the motor fuel containing
12-10 ethanol or methanol, which shall include a statement showing the
12-11 percentage of ethanol or methanol contained in the mixture
12-12 delivered, and the types and percentages of associated cosolvents,
12-13 if any, contained in the mixture delivered. The document shall
12-14 also show delivery of the sign or signs, as applicable, required to
12-15 be delivered by this subsection.
12-16 (b) On the request of any motor fuel user, a dealer must
12-17 reveal the percentage of ethanol contained in motor fuel being
12-18 sold, the percentage of methanol contained in motor fuel being
12-19 sold, and, if the motor fuel contains methanol, the types and
12-20 percentages of associated cosolvents contained in the motor fuel
12-21 being sold.
12-22 (c) The commissioner of agriculture [comptroller] by rule
12-23 may prescribe the form of the statement required by Subsection (a)
12-24 of this section.
12-25 (d) The signs required to be posted by a [motor fuel] dealer
13-1 under Section 3 of this Act and delivered to a [motor fuel] dealer
13-2 under this section shall be obtained from the commissioner of
13-3 agriculture [comptroller].
13-4 (e) If the commissioner of agriculture [comptroller]
13-5 determines that certain types of motor fuel, such as diesel or
13-6 liquefied petroleum gas, are not sold in this state as mixtures
13-7 with alcohol in sufficient quantities to warrant regulation of
13-8 those deliveries under this Act, the commissioner [comptroller] may
13-9 limit the application of Section 3 of this Act and this section to
13-10 motor fuels sold in sufficient quantity to warrant regulation.
13-11 Sec. 5. DEALER AND DELIVERY DOCUMENTS. (a) Each [motor
13-12 fuel] dealer [in this state] shall keep for one year [four years] a
13-13 copy of each manifest, bill of sale, bill of lading, or any other
13-14 document required to be delivered to the dealer by Section 4 of
13-15 this Act. During the first 60 days following delivery of a fuel
13-16 mixture covered by this Act, the dealer shall keep at the station
13-17 or retail outlet where the motor fuel was delivered a copy of each
13-18 manifest, bill of sale, bill of lading, or any other document
13-19 required to be delivered to the dealer by Section 4 of this Act.
13-20 Each distributor, supplier, wholesaler, or jobber of motor fuel
13-21 shall keep for one year [four years] at the principal place of
13-22 business a copy of each manifest, bill of sale, bill of lading, or
13-23 any other document required to be delivered to the dealer by
13-24 Section 4 of this Act. The documents are subject to inspection by
13-25 the commissioner of agriculture [comptroller or an authorized
14-1 representative of the comptroller, any law enforcement officer, or
14-2 the attorney general].
14-3 (b) The commissioner of agriculture [comptroller] by rule
14-4 may prescribe the manner of filing documents required to be kept
14-5 under Subsection (a) of this section, and the time, place, and
14-6 manner of inspection of the documents.
14-7 Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF
14-8 AUTOMOTIVE FUEL RATINGS. (a) Each dealer shall keep for at least
14-9 one year a copy of:
14-10 (1) each delivery ticket or letter of certification on
14-11 which the dealer based a posting of the automotive fuel rating of
14-12 motor fuel contained in a motor fuel pump;
14-13 (2) records of any automotive fuel rating
14-14 determination made by the dealer under 16 C.F.R. Part 306, as
14-15 amended; and
14-16 (3) each delivery ticket or letter of certification
14-17 that is required to be delivered to the dealer under 16 C.F.R. Part
14-18 306, as amended.
14-19 (b) Each distributor or supplier shall keep for at least one
14-20 year at the principal place of business a copy of each delivery
14-21 ticket or letter of certification required to be delivered by the
14-22 distributor or supplier to a dealer under 16 C.F.R. Part 306, as
14-23 amended.
14-24 (c) A document required to be kept under this section is
14-25 subject to inspection by the commissioner of agriculture.
15-1 Sec. 6. CIVIL ACTION. (a) If a [motor fuel] dealer or a
15-2 distributor, supplier, wholesaler, or jobber of motor fuel violates
15-3 Section 3, 3A, 3B, 4, or 5 of this Act, any motor fuel user who has
15-4 purchased the fuel and who has suffered damages or has a complaint
15-5 about the product may maintain a civil action against the [motor
15-6 fuel] dealer or the distributor, supplier, wholesaler, or jobber of
15-7 motor fuel. The action may be brought, without regard to any
15-8 specific amount in damages, in the district court in any county in
15-9 which the [motor fuel] dealer, distributor, supplier, wholesaler,
15-10 or jobber is doing business or in which the [motor fuel] user
15-11 resides.
15-12 (b) In any action under this section, the court shall award
15-13 to the motor fuel user who prevails the amount of actual damages
15-14 and grant such equitable relief as the court determines is
15-15 necessary to remedy the effects of the [motor fuel] dealer's
15-16 violation or the distributor, supplier, wholesaler, or jobber's
15-17 violation of the provisions of Section 3, 3A, 3B, 4, or 5 of this
15-18 Act, including declaratory judgment, permanent injunctive relief,
15-19 and temporary injunctive relief. In addition, the court shall
15-20 award to the motor fuel user who prevails in an action brought
15-21 hereunder court costs and attorney's fees that are reasonable in
15-22 relation to the amount of work expended.
15-23 (c) In addition to the remedies provided in Subsection (b)
15-24 of this section, if the trier of fact finds that a [the] violation
15-25 of Section 3, 3A, 3B, 4, or 5 of this Act was committed wilfully or
16-1 knowingly by the defendant, the trier of fact shall award not more
16-2 than three times the amount of actual damages.
16-3 (d) A violation of Section 3, 3A, 3B, 4, or 5 of this Act is
16-4 also a deceptive trade practice under Subchapter E, Chapter 17,
16-5 Business & Commerce Code.
16-6 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
16-7 or 5 of this Act shall be commenced and prosecuted within two years
16-8 after the date the cause of action accrued.
16-9 Sec. 7. CIVIL PENALTY. A [motor fuel] dealer or a
16-10 distributor, supplier, wholesaler, or jobber of motor fuel who
16-11 violates a provision of Section 3, 3A, 3B, 4, [or] 5, or 5A of this
16-12 Act forfeits to the state a civil penalty of not less than $200 or
16-13 [$25 nor] more than $10,000 [$200].
16-14 Sec. 7A. ADMINISTRATIVE PENALTY. (a) The commissioner of
16-15 agriculture may impose an administrative penalty against a person
16-16 licensed or regulated under this Act who violates this Act or a
16-17 rule or order adopted under this Act.
16-18 (b) The penalty for a violation may be in an amount not to
16-19 exceed $500. Each day a violation continues or occurs is a
16-20 separate violation for purposes of imposing a penalty.
16-21 (c) The amount of the penalty shall be based on:
16-22 (1) the seriousness of the violation, including the
16-23 nature, circumstances, extent, and gravity of any prohibited acts,
16-24 and the hazard or potential hazard created to the health, safety,
16-25 or economic welfare of the public;
17-1 (2) the economic harm to property or the environment
17-2 caused by the violation;
17-3 (3) the history of previous violations;
17-4 (4) the amount necessary to deter future violations;
17-5 (5) efforts to correct the violation; and
17-6 (6) any other matter that justice may require.
17-7 (d) An employee of the Department of Agriculture designated
17-8 by the commissioner of agriculture to act under this section who
17-9 determines that a violation has occurred may issue to the
17-10 commissioner a report that states the facts on which the
17-11 determination is based and the designated employee's recommendation
17-12 on the imposition of a penalty, including a recommendation on the
17-13 amount of the penalty.
17-14 (e) Within 14 days after the date the report is issued, the
17-15 designated employee shall give written notice of the report to the
17-16 person. The notice may be given by certified mail. The notice
17-17 must include a brief summary of the alleged violation and a
17-18 statement of the amount of the recommended penalty and must inform
17-19 the person that the person has a right to a hearing on the
17-20 occurrence of the violation, the amount of the penalty, or both the
17-21 occurrence of the violation and the amount of the penalty.
17-22 (f) Within 20 days after the date the person receives the
17-23 notice, the person in writing may accept the determination and
17-24 recommended penalty of the designated employee or may make a
17-25 written request for a hearing on the occurrence of the violation,
18-1 the amount of the penalty, or both the occurrence of the violation
18-2 and the amount of the penalty.
18-3 (g) If the person accepts the determination and recommended
18-4 penalty of the designated employee, the commissioner of agriculture
18-5 by order shall approve the determination and impose the recommended
18-6 penalty.
18-7 (h) If the person requests a hearing or fails to respond
18-8 timely to the notice, the designated employee shall set a hearing
18-9 and give notice of the hearing to the person. The hearing shall be
18-10 held by an administrative law judge of the State Office of
18-11 Administrative Hearings. The administrative law judge shall make
18-12 findings of fact and conclusions of law and promptly issue to the
18-13 commissioner of agriculture a proposal for a decision about the
18-14 occurrence of the violation and the amount of a proposed penalty.
18-15 Based on the findings of fact, conclusions of law, and proposal for
18-16 a decision, the commissioner of agriculture by order may find that
18-17 a violation has occurred and impose a penalty or may find that no
18-18 violation occurred.
18-19 (i) The notice of the commissioner of agriculture's order
18-20 given to the person under Chapter 2001, Government Code, must
18-21 include a statement of the right of the person to judicial review
18-22 of the order.
18-23 (j) Within 30 days after the date the commissioner of
18-24 agriculture's order becomes final as provided by Section 2001.144,
18-25 Government Code, the person shall:
19-1 (1) pay the amount of the penalty;
19-2 (2) pay the amount of the penalty and file a petition
19-3 for judicial review contesting the occurrence of the violation, the
19-4 amount of the penalty, or both the occurrence of the violation and
19-5 the amount of the penalty; or
19-6 (3) without paying the amount of the penalty, file a
19-7 petition for judicial review contesting the occurrence of the
19-8 violation, the amount of the penalty, or both the occurrence of the
19-9 violation and the amount of the penalty.
19-10 (k) Within the 30-day period, a person who acts under
19-11 Subsection (j)(3) of this section may:
19-12 (1) stay enforcement of the penalty by:
19-13 (A) paying the amount of the penalty to the
19-14 court for placement in an escrow account; or
19-15 (B) giving to the court a supersedeas bond that
19-16 is approved by the court for the amount of the penalty and that is
19-17 effective until all judicial review of the commissioner of
19-18 agriculture's order is final; or
19-19 (2) request the court to stay enforcement of the
19-20 penalty by:
19-21 (A) filing with the court a sworn affidavit of
19-22 the person stating that the person is financially unable to pay the
19-23 amount of the penalty and is financially unable to give the
19-24 supersedeas bond; and
19-25 (B) giving a copy of the affidavit to the
20-1 designated employee by certified mail.
20-2 (l) A designated employee who receives a copy of an
20-3 affidavit under Subsection (k)(2) of this section may file with the
20-4 court, within five days after the date the copy is received, a
20-5 contest to the affidavit. The court shall hold a hearing on the
20-6 facts alleged in the affidavit as soon as practicable and shall
20-7 stay the enforcement of the penalty on finding that the alleged
20-8 facts are true. The person who files an affidavit has the burden
20-9 of proving that the person is financially unable to pay the amount
20-10 of the penalty and to give a supersedeas bond.
20-11 (m) If the person does not pay the amount of the penalty and
20-12 the enforcement of the penalty is not stayed, the designated
20-13 employee may refer the matter to the attorney general for
20-14 collection of the amount of the penalty.
20-15 (n) Judicial review of the order of the commissioner of
20-16 agriculture:
20-17 (1) is instituted by filing a petition as provided by
20-18 Subchapter G, Chapter 2001, Government Code; and
20-19 (2) is under the substantial evidence rule.
20-20 (o) If the court sustains the occurrence of the violation,
20-21 the court may uphold or reduce the amount of the penalty and order
20-22 the person to pay the full or reduced amount of the penalty. If
20-23 the court does not sustain the occurrence of the violation, the
20-24 court shall order that no penalty is owed.
20-25 (p) When the judgment of the court becomes final, the court
21-1 shall proceed under this subsection. If the person paid the amount
21-2 of the penalty and if that amount is reduced or is not upheld by
21-3 the court, the court shall order that the appropriate amount plus
21-4 accrued interest be remitted to the person. The rate of the
21-5 interest is the rate charged on loans to depository institutions by
21-6 the New York Federal Reserve Bank, and the interest shall be paid
21-7 for the period beginning on the date the penalty was paid and
21-8 ending on the date the penalty is remitted. If the person gave a
21-9 supersedeas bond and if the amount of the penalty is not upheld by
21-10 the court, the court shall order the release of the bond. If the
21-11 person gave a supersedeas bond and if the amount of the penalty is
21-12 reduced, the court shall order the release of the bond after the
21-13 person pays the amount.
21-14 (q) A penalty collected under this section shall be remitted
21-15 to the comptroller for deposit in the general revenue fund.
21-16 (r) All proceedings under this section are subject to
21-17 Chapter 2001, Government Code.
21-18 Sec. 8. Criminal offenses and penalties. (a) A person
21-19 commits an offense if the person intentionally or knowingly
21-20 violates Section 3, 3A, 3B, 4, [or] 5, or 5A of this Act or any
21-21 rule of the commissioner of agriculture [comptroller] prescribed to
21-22 enforce or implement those sections of this Act.
21-23 (b) A person commits an offense if the person intentionally
21-24 or knowingly:
21-25 (1) refuses to permit a person authorized by Section 2
22-1 of this Act to test any motor fuel sold or held for sale in this
22-2 state;
22-3 (2) refuses to permit inspection of any document
22-4 required to be kept or delivered by this Act upon request of a
22-5 person authorized to inspect such documents by Section 5 or 5A of
22-6 this Act; or
22-7 (3) mutilates, destroys, secretes, forges, or
22-8 falsifies any document, record, report, or sign required to be
22-9 delivered, kept, filed, or posted by this Act or any rule
22-10 prescribed by the commissioner of agriculture [comptroller] for the
22-11 enforcement of this Act.
22-12 (c) An offense under Subsection (a) of this section is a
22-13 Class C misdemeanor.
22-14 (d) An offense under Subsection (b) of this section is a
22-15 Class B misdemeanor.
22-16 (e) The commissioner of agriculture may request a
22-17 prosecuting attorney to prosecute a violation of this Act [A user,
22-18 the comptroller or the comptroller's authorized representative, any
22-19 law enforcement officer, or the attorney general may file a
22-20 complaint under this section].
22-21 Sec. 9. RULES AND FEES. (a) The commissioner of
22-22 agriculture [comptroller] may adopt rules not inconsistent with
22-23 this Act for the regulation of the sale of motor fuels containing
22-24 ethanol and methanol.
22-25 (b) The comptroller by rule may impose fees for testing,
23-1 inspection, statement or record forms, sale of signs, or the
23-2 performance of other services provided as determined necessary by
23-3 the commissioner of agriculture in the administration of this Act.
23-4 (c) In addition to the fees authorized by Subsection (b) of
23-5 this section, the comptroller by rule may impose a fee to be
23-6 collected on a periodic basis determined by the comptroller from
23-7 each distributor, supplier, wholesaler, and jobber who deals in a
23-8 motor fuel, without regard to whether the motor fuel is subject to
23-9 regulation under this Act, as determined necessary by the
23-10 commissioner of agriculture. The comptroller by rule shall
23-11 prescribe the form for reporting and remitting the fees imposed by
23-12 and under this section.
23-13 (d) The fees and penalties imposed by this Act or by a rule
23-14 of the comptroller made pursuant to this Act shall be subject to
23-15 the provisions of Chapter 111 and Sections 153.006, 153.007, and
23-16 153.401, Tax Code, except to the extent those sections are in
23-17 conflict with this Act.
23-18 (e) The total amount of the fees collected annually under
23-19 this Act may not exceed the lesser of:
23-20 (1) the costs of administering and enforcing the
23-21 provisions of this Act as determined necessary by the commissioner
23-22 of agriculture; or
23-23 (2) $500,000.
23-24 (f) The fees collected under this section may be used only:
23-25 (1) by the comptroller to defray the cost of
24-1 collecting the fees and penalties imposed by this Act but may not
24-2 exceed $25,000 annually; or
24-3 (2) by the commissioner of agriculture for the
24-4 administration and enforcement of this Act [and shall be deposited
24-5 in the Comptroller's Operating Fund 062].
24-6 Sec. 10. [Contracting for] enforcement. The commissioner of
24-7 agriculture shall enforce this Act and [comptroller] may not
24-8 contract for the enforcement of this Act [after due notice].
24-9 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
24-10 commissioner of agriculture may make a copy of a manifest, bill of
24-11 sale, bill of lading, delivery ticket, letter of certification, or
24-12 other document the commissioner may inspect under this Act. The
24-13 commissioner may deliver a copy of a document made as provided by
24-14 this section to the federal government for purposes of prosecuting
24-15 a person for a violation of federal law relating to the sale or
24-16 transfer of motor fuel.
24-17 Sec. 12. BUSINESS OPPORTUNITY INFORMATION. The Texas
24-18 Department of Commerce shall cooperate with the Department of
24-19 Agriculture to:
24-20 (1) disseminate information regarding business
24-21 opportunities available to a person who performs automotive fuel
24-22 rating tests; and
24-23 (2) develop markets for providers of automotive fuel
24-24 rating testing services.
24-25 SECTION 12. Effective September 1, 1999, Chapter 1033, Acts
25-1 of the 71st Legislature, Regular Session, 1989 (Article 8614,
25-2 Vernon's Texas Civil Statutes), is amended by adding Section 13 to
25-3 read as follows:
25-4 Sec. 13. PRIVATE TESTING REQUIREMENT. (a) Employees of the
25-5 Department of Agriculture may not perform more than 50 percent of
25-6 automotive fuel rating tests required by law.
25-7 (b) Subsection (a) does not prohibit an employee of the
25-8 Department of Agriculture from performing an automotive fuel rating
25-9 test.
25-10 (c) This section expires September 1, 2001.
25-11 SECTION 13. Effective September 1, 2001, Chapter 1033, Acts
25-12 of the 71st Legislature, Regular Session, 1989 (Article 8614,
25-13 Vernon's Texas Civil Statutes), is amended by adding Section 13A to
25-14 read as follows:
25-15 Sec. 13A. PRIVATE TESTING REQUIREMENT. (a) Employees of
25-16 the Department of Agriculture may not perform more than 25 percent
25-17 of the automotive fuel rating tests required by law.
25-18 (b) Subsection (a) does not prohibit an employee of the
25-19 Department of Agriculture from performing an automotive fuel rating
25-20 test.
25-21 SECTION 14. Section 10.03, Chapter 419, Acts of the 74th
25-22 Legislature, 1995, is amended to read as follows:
25-23 Sec. 10.03. TRANSITION: LICENSING. Subchapter H, Chapter
25-24 13, Agriculture Code, [as added by this Act,] relating to
25-25 inspecting or testing of a weighing or measuring device, applies to
26-1 a person on or after September 1, 1997 [only after the Department
26-2 of Agriculture reasonably demonstrates to the Legislative Budget
26-3 Board that the department's licensing programs for inspection and
26-4 testing of liquefied petroleum gas meters and inspection and
26-5 testing of ranch scales under Subchapters F and G, Chapter 13,
26-6 Agriculture Code, respectively, will attain the performance goals
26-7 established by the Legislative Budget Board].
26-8 SECTION 15. (a) This Act takes effect September 1, 1997.
26-9 (b) The changes in law made by Section 11 of this Act apply
26-10 only to a delivery, transfer, or sale, as applicable, of motor fuel
26-11 that occurs on or after September 1, 1997. A delivery, transfer,
26-12 or sale of motor fuel that occurs before September 1, 1997, is
26-13 governed by the law in effect immediately before the effective date
26-14 of this Act, and that law is continued in effect for that purpose.
26-15 (c) All rules adopted by the comptroller for the
26-16 administration of Chapter 1033, Acts of the 71st Legislature,
26-17 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
26-18 Statutes), in effect on September 1, 1997, remain in effect until
26-19 amended or repealed by the commissioner of agriculture.
26-20 (d) Before December 1, 1997, each entity named in Section
26-21 403.321, Government Code, as added by this Act, shall appoint a
26-22 representative to serve as a member of the Interagency Task Force
26-23 on Texas Retail Food Store Regulation.
26-24 (e) The Parks and Wildlife Department and the Texas
26-25 Department of Health shall enter into the memorandum of agreement
27-1 under Section 47.0113, Parks and Wildlife Code, as added by this
27-2 Act, and shall assume their responsibilities as provided by this
27-3 Act and the agreement before January 1, 1999.
27-4 (f) The Interagency Task Force on Texas Retail Food Store
27-5 Regulation shall report to the legislature under Section 403.321,
27-6 Government Code, as added by this Act, before January 1, 1999.
27-7 (g) The changes in law made by this Act relating to a
27-8 penalty that may be imposed apply only to a violation that occurs
27-9 on or after the effective date of this Act. A violation occurs on
27-10 or after the effective date of this Act if each element of the
27-11 violation occurs on or after that date. A violation that occurs
27-12 before the effective date of this Act is covered by the law in
27-13 effect when the violation occurred, and the former law is continued
27-14 in effect for that purpose.
27-15 SECTION 16. The importance of this legislation and the
27-16 crowded condition of the calendars in both houses create an
27-17 emergency and an imperative public necessity that the
27-18 constitutional rule requiring bills to be read on three several
27-19 days in each house be suspended, and this rule is hereby suspended.
S.B. No. 1355
________________________________ ________________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1355 passed the Senate on
April 24, 1997, by the following vote: Yeas 29, Nays 0;
May 28, 1997, Senate refused to concur in House amendments and
requested appointment of Conference Committee; May 29, 1997, House
granted request of the Senate; May 31, 1997, Senate adopted
Conference Committee Report by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1355 passed the House, with
amendments, on May 26, 1997, by a non-record vote; May 29, 1997,
House granted request of the Senate for appointment of Conference
Committee; May 31, 1997, House adopted Conference Committee Report
by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
________________________________
Date
________________________________
Governor