H.B. No. 2612
 
 
 
 
AN ACT
  relating to civil liability of a person who produces, distributes,
  sells, or provides or aids in the production, distribution, sale,
  or provision of certain synthetic substances to another person for
  damages caused by the other person and to certain actions and
  investigations under the Deceptive Trade Practices-Consumer
  Protection Act.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter D, Chapter 481, Health and Safety
  Code, is amended by adding Section 481.1191 to read as follows:
         Sec. 481.1191.  CIVIL LIABILITY FOR ENGAGING IN OR AIDING IN
  PRODUCTION, DISTRIBUTION, SALE, OR PROVISION OF SYNTHETIC
  SUBSTANCES. (a) In this section:
               (1)  "Minor" means a person younger than 18 years of
  age.
               (2)  "Synthetic substance" means an artificial
  substance that produces and is intended by the manufacturer to
  produce when consumed or ingested an effect similar to or in excess
  of the effect produced by the consumption or ingestion of a
  controlled substance or controlled substance analogue, as those
  terms are defined by Section 481.002.
         (b)  A person is liable for damages proximately caused by the
  consumption or ingestion of a synthetic substance by another person
  if the actor:
               (1)  produced, distributed, sold, or provided the
  synthetic substance to the other person; or
               (2)  aided in the production, distribution, sale, or
  provision of the synthetic substance to the other person.
         (c)  A person is strictly liable for all damages caused by
  the consumption or ingestion of a synthetic substance by a minor if
  the actor:
               (1)  produced, distributed, sold, or provided the
  synthetic substance to the minor; or
               (2)  aided in the production, distribution, sale, or
  provision of the synthetic substance to the minor.
         (d)  A person who is found liable under this section or other
  law for any amount of damages arising from the consumption or
  ingestion by another of a synthetic substance is jointly and
  severally liable with any other person for the entire amount of
  damages awarded.
         (e)  Chapter 33, Civil Practice and Remedies Code, does not
  apply to an action brought under this section or an action brought
  under Section 17.50, Business & Commerce Code, based on conduct
  made actionable under Subsection (f) of this section.
         (f)  Conduct for which Subsection (b) or (c) creates
  liability is a false, misleading, or deceptive act or practice or an
  unconscionable action or course of action for purposes of Section
  17.50, Business & Commerce Code, and that conduct is:
               (1)  actionable under Subchapter E, Chapter 17,
  Business & Commerce Code; and
               (2)  subject to any remedy prescribed by that
  subchapter.
         (g)  An action brought under this section may include a claim
  for exemplary damages, which may be awarded in accordance with
  Section 41.003, Civil Practice and Remedies Code.
         (h)  Section 41.008, Civil Practice and Remedies Code, does
  not apply to the award of exemplary damages in an action brought
  under this section. 
         (i)  Section 41.005, Civil Practice and Remedies Code, does
  not apply to a claim for exemplary damages in an action brought
  under this section.
         (j)  It is an affirmative defense to liability under this
  section that the synthetic substance produced, distributed, sold,
  or provided was approved for use, sale, or distribution by the
  United States Food and Drug Administration or other state or
  federal regulatory agency with authority to approve a substance for
  use, sale, or distribution.
         (k)  It is not a defense to liability under this section that
  a synthetic substance was in packaging labeled with "Not for Human
  Consumption" or other wording indicating the substance is not
  intended to be ingested.
         SECTION 2.  Subchapter E, Chapter 17, Business & Commerce
  Code, is amended by adding Section 17.463 to read as follows:
         Sec. 17.463.  PRODUCTION, SALE, DISTRIBUTION, OR PROMOTION
  OF CERTAIN SYNTHETIC SUBSTANCES. (a)  This section applies only to
  an act described by Section 17.46(b)(31).
         (b)  Subject to Subsection (e) and except as otherwise
  provided by this section, an act to which this section applies is
  subject to action by a district or county attorney under Sections
  17.47, 17.58, 17.60, and 17.61 to the same extent as the act is
  subject to action by the consumer protection division under those
  sections.
         (c)  If a district or county attorney, under the authority of
  this section, accepts assurance of voluntary compliance under
  Section 17.58, the district or county attorney must file the
  assurance of voluntary compliance in the district court in the
  county in which the alleged violator resides or does business.
         (d)  If a district or county attorney, under the authority of
  this section, executes and serves a civil investigative demand and
  files a petition described by Section 17.61(g), the petition must
  be filed in the district court in the county where the parties
  reside.
         (e)  A district or county attorney may act under this section
  so long as the consumer protection division does not intend to act
  with respect to that matter.  Further, consistent with Section
  17.48(b) of this subchapter, the consumer protection division
  shall, upon request and to the extent it has the resources
  available, provide assistance to a district or county attorney in
  any action taken under this subchapter.  A district or county
  attorney may institute a suit described by this section on or after
  the 90th day after the date the attorney general receives the notice
  required by Section 17.48 unless before the 90th day after the date
  the notice is received the attorney general responds that it is
  actively investigating or litigating at least one of the alleged
  violations set forth in the notice.  The consumer protection
  division shall notify the district or county attorney it no longer
  intends to actively investigate or litigate an alleged violation
  within a reasonable time of such determination.
         (f)  Notwithstanding any other law, in an action brought by a
  district or county attorney under this section, all settlements or
  penalties collected by the district or county attorney shall be
  divided between the state and the county in which the attorney
  brought suit, with:
               (1)  50 percent of the amount collected paid to the
  comptroller for deposit to the credit of the basic civil legal
  services account established by Section 51.943, Government Code;
  and
               (2)  50 percent of the amount collected paid to the
  county shall be deposited by the county in a segregated account and
  the funds shall be used only for law enforcement, public health
  programs, or drug abuse prevention programs.
         SECTION 3.   This Act applies only to a cause of action that
  accrues on or after the effective date of this Act. A cause of
  action that accrued before the effective date of this Act is
  governed by the law applicable to the cause of action immediately
  before the effective date of this Act, and that law is continued in
  effect for that purpose.
         SECTION 4.  This Act takes effect September 1, 2017.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 2612 was passed by the House on May 9,
  2017, by the following vote:  Yeas 144, Nays 0, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 2612 was passed by the Senate on May
  24, 2017, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor