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AN ACT
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relating to protections provided by the Department of Agriculture |
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for certain consumers; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 13.001(a), Agriculture Code, is amended |
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to read as follows: |
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(a) In this chapter: |
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(1) "Weight or measure of a commodity" means the |
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weight or measure of a commodity as determined by a weighing or |
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measuring device [includes a weight, scale, beam, or measure of any
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kind; an instrument or mechanical device for weighing or measuring;
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and an appliance or accessory connected with an instrument or
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mechanical device for weighing or measuring]. |
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(2) "Sell" includes barter or exchange. |
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(3) "Weighing or measuring device" ["Pump"] means: |
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(A) a scale; or |
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(B) a mechanical or electronic device used to |
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dispense or deliver a commodity by weight, volume, flow rate, or |
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other measure [a gasoline, kerosene, or diesel fuel measuring or
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dispensing device]. |
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SECTION 2. Section 13.002(a), Agriculture Code, is amended |
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to read as follows: |
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(a) The department shall enforce the provisions of this |
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chapter and shall supervise all weighing or measuring devices |
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[weights and measures] sold or offered for sale in this state. The |
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department may purchase apparatus as necessary for the |
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administration of this chapter. |
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SECTION 3. Sections 13.021(a), (c), and (d), Agriculture |
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Code, are amended to read as follows: |
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(a) The legal standard for the weight or measure of a |
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commodity [of weights and measures] in this state is the standard |
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weight or measure [of weights and measures] adopted and used by the |
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government of the United States for that commodity. If the United |
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States does not provide a standard [of] weight or measure for a |
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commodity, the standard for that commodity is that established by |
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this subchapter. |
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(c) Except as otherwise provided by an express contract, a |
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contract for work or sales by weight or measure of a commodity shall |
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be construed in accordance with the standards of this subchapter. |
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(d) The standards of this subchapter shall be the guide for |
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making any adjustment of weighing [weights] or measuring devices |
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[measures] under the law of this state. |
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SECTION 4. Subchapter B, Chapter 13, Agriculture Code, is |
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amended by adding Section 13.029 to read as follows: |
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Sec. 13.029. EXEMPTION OF WEIGHING OR MEASURING DEVICES. |
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The department by rule may exempt a weighing or measuring device |
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from a requirement established by this chapter if the department |
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determines that imposing or enforcing the requirement: |
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(1) is not cost-effective for the department; |
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(2) is not feasible with current resources or |
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standards; or |
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(3) will not substantially benefit or protect |
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consumers. |
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SECTION 5. Sections 13.036, 13.037, and 13.039, Agriculture |
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Code, are amended to read as follows: |
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Sec. 13.036. FALSE REPRESENTATION OF COMMODITY QUANTITY. A |
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person commits an offense if the person or the person's servant or |
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agent: |
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(1) sells or offers or exposes for sale a quantity of a |
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commodity or service that is less than the quantity the person |
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represents; or |
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(2) as a buyer furnishing the weight or measure of a |
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commodity or service by which the amount of the [a] commodity or |
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service is determined, takes or attempts to take more than the |
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quantity the person represents. |
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Sec. 13.037. USE OF INCORRECT WEIGHING [FALSE WEIGHT] OR |
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MEASURING DEVICE [MEASURE]. (a) A person commits an offense if the |
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person or the person's servant or agent uses an incorrect weighing |
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[a false weight] or measuring device [measure] in: |
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(1) buying or selling a commodity; |
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(2) computing a charge for services rendered on the |
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basis of weight or measure; or |
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(3) determining the weight or measure of a commodity, |
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if a charge is made for the determination. |
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(b) For the purpose of this section, a weighing [weight] or |
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measuring device [measure] is incorrect [false] if it: |
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(1) does not conform as closely as practicable to the |
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official standards; |
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(2) is not accurate; |
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(3) is of a construction that is not reasonably |
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permanent in adjustment or does not correctly repeat its |
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indications; |
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(4) facilitates the perpetration of fraud; or |
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(5) does not conform to the specifications and |
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tolerances established by the department under Section 13.114 [of
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this code]. |
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Sec. 13.039. TESTING OF PACKAGE BY DEPARTMENT [SEALER]. |
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(a) The department [A sealer appointed under Subchapter C of this
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chapter] shall from time to time weigh or measure a package[,] or an |
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amount of any commodity[,] that is kept or offered for sale, sold, |
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or in the process of delivery, in order to determine: |
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(1) if the commodity is of the amount or quantity |
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represented; or |
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(2) if the commodity is being offered for sale or sold |
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in accordance with law. |
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(b) If the department [a sealer] finds that a package or any |
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lot of a commodity contains less of the commodity than the amount |
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represented, the department [sealer] may seize the package or the |
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commodity as evidence. |
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(c) A person commits an offense if the person or the |
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person's employee or agent refuses to exhibit a commodity being |
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sold or offered for sale at a given weight or quantity, or |
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ordinarily sold in that manner, to the department [a sealer] for |
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testing and proving as to quantity. |
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SECTION 6. The heading to Subchapter C, Chapter 13, |
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Agriculture Code, is amended to read as follows: |
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SUBCHAPTER C. INSPECTION AND REGISTRATION OF WEIGHING OR MEASURING |
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DEVICES [WEIGHTS AND MEASURES] |
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SECTION 7. Section 13.101, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.101. REQUIRED INSPECTION. (a) At least once every |
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four years, or more often as required by the department, a weighing |
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[weight] or measuring device [measure] shall be inspected and |
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tested for correctness by the department [a sealer] if it: |
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(1) is kept for sale, sold, or used by a proprietor, |
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agent, lessee, or employee in proving the weight or measure, |
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including the size, quantity, extent, or area, of any item; or |
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(2) is purchased, offered, or submitted by a |
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proprietor, agent, lessee, or employee for sale, hire, or award. |
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(b) The department shall, to the extent necessary to ensure |
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compliance with the official standards, require additional |
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inspection and testing of weighing or measuring devices [weights
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and measures]. |
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(c) A person who uses or keeps for use, or has or offers for |
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sale, a weighing [weight] or measuring device [measure] is |
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responsible for having the device [weight or measure] inspected and |
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tested as required by this section. |
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(d) Unless the department requires an additional |
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inspection, a weighing [weight] or measuring device [measure] that |
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is inspected and found correct by the department [a sealer] may be |
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kept for use, used, kept or offered for sale, or sold without |
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further testing. |
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(e) The department may inspect and test a weighing or |
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measuring device less frequently than required by Subsection (a): |
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(1) to accommodate complaint-based and risk-based |
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inspection schedules; or |
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(2) in response to an emergency or a limitation in |
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department funding. |
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SECTION 8. Sections 13.1011(a) and (c), Agriculture Code, |
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are amended to read as follows: |
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(a) A person who operates a weighing or measuring [pump,
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scale, or bulk or liquefied petroleum gas metering] device for a |
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commercial transaction shall [must] register annually with the |
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department. |
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(c) If a person fails to register as required by this |
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section and pay the fee required under Section 13.1151 [of this
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code], the department may assess a late fee against the person, |
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prohibit the operation of the weighing or measuring [pump, scale,
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or metering] device, or both assess the fee and prohibit the |
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operation of the [pump, scale, or metering] device. |
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SECTION 9. Section 13.1012(e), Agriculture Code, is amended |
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to read as follows: |
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(e) The department may conduct an inspection of an |
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applicant's or registrant's: |
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(1) facilities; |
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(2) inspecting and testing equipment and procedures; |
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(3) repair and calibration equipment, records, and |
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procedures; and |
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(4) transportation equipment. |
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SECTION 10. The heading to Section 13.111, Agriculture |
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Code, is amended to read as follows: |
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Sec. 13.111. REPAIR OR DESTRUCTION OF INCORRECT WEIGHING |
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[WEIGHTS] OR MEASURING DEVICES [MEASURES]. |
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SECTION 11. Sections 13.111(a) and (b), Agriculture Code, |
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are amended to read as follows: |
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(a) If, in the judgment of the department [sealer], a |
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weighing [weight] or measuring device [measure] found to be |
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incorrect is not capable of being repaired, the department [sealer] |
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may condemn, seize, and destroy the device [weight or measure]. |
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(b) If, in the judgment of the department [sealer], an |
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incorrect weighing [weight] or measuring device [measure] is |
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capable of being repaired, the department [sealer] shall place on |
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the device [weight or measure] a tag or other mark with the words |
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"Out of Order." The owner or user of the weighing [weight] or |
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measuring device [measure] may have it repaired within 30 days, but |
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may not use or dispose of it until it is reinspected and released |
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for use by the department or inspected and released for use in any |
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other manner authorized by department rule [sealed. After repair,
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the owner or user shall notify the sealer and the sealer shall
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reinspect the weight or measure. If it is found to be correct, the
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sealer shall remove the out-of-order tag and seal the weight or
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measure as provided by Section 13.110 of this code]. |
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SECTION 12. Section 13.112, Agriculture Code, is amended to |
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read as follows: |
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Sec. 13.112. TESTS FOR STATE INSTITUTIONS. As requested by |
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the comptroller or the governing body of a state institution, the |
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department shall test each weighing [weight] or measuring device |
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[measure] used by a state institution for any purpose, including a |
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weighing or measuring device [weight or measure] used in checking |
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the receipt and distribution of supplies. The department shall |
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report results of the test to the chairman of the governing body of |
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the institution. |
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SECTION 13. Sections 13.113(a), (c), (d), and (e), |
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Agriculture Code, are amended to read as follows: |
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(a) The standards of weights and measures received from the |
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United States and certified by the National Institute of Standards |
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and Technology are the state's standards by which all state and |
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local standards of weights and measures are tried, authenticated, |
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proved, and certified [sealed]. |
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(c) In addition to the standards kept by the state, the |
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department shall maintain a complete set of copies of the original |
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standards for use in adjusting local standards or in the |
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performance of other official duties. The department may purchase |
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additional sets of standards as necessary for use by a department |
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inspector or other department personnel [state sealers]. |
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(d) At the request of a city, the department shall furnish |
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the city with copies of the state's standards or test and approve |
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other standards acquired by the city. The city shall reimburse the |
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state for the actual cost of the standards furnished, plus the costs |
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of freight and certification. All standards furnished to or tested |
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for a city shall be true and correct, [sealed and] certified by the |
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department [commissioner], and stamped with the letter "C". The |
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copies used by a city may be of any suitable material or |
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construction that the city requests, subject to approval by the |
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department. |
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(e) The department shall inspect and correct the standards |
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used by a department inspector, other department employee, or |
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individual or business licensed by the department to perform |
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private maintenance, repairs, or calibration of weighing or |
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measuring devices [a local sealer] at least once every year [two
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years]. The department shall keep a record of the inspection and |
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character of weights and measures inspected under this subsection. |
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[The city shall pay all expenses incurred in inspections under this
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subsection.] |
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SECTION 14. Section 13.114(a), Agriculture Code, is amended |
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to read as follows: |
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(a) The department shall establish tolerances and |
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specifications for commercial weighing or [and] measuring devices |
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[apparatus] used in this state. The tolerances and specifications |
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shall be similar to those recommended by the National Institute of |
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Standards and Technology. |
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SECTION 15. Sections 13.115(a) and (f), Agriculture Code, |
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are amended to read as follows: |
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(a) The department shall collect a fee in accordance with |
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this section for each test of a weighing [weight] or measuring |
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device [measure] required by this subchapter or performed on |
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request of the owner. |
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(f) The department shall charge a fee, as provided by |
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department rule, for precision testing of tapes, rules, glassware, |
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and other weighing or measuring devices performed by the |
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department's metrology laboratory. |
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SECTION 16. Sections 13.1151, 13.117, 13.118, and 13.119, |
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Agriculture Code, are amended to read as follows: |
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Sec. 13.1151. FEES FOR REGISTRATION AND INSPECTION. The |
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department may charge the owner or operator of a weighing or |
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measuring device a fee, as provided by department rule, to recover |
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the costs of registration and inspection of a weighing or [pump,
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scale, bulk or liquefied petroleum gas metering device, or other] |
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measuring [or dispensing] device required to be registered or |
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inspected under this chapter. |
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Sec. 13.117. REFUSING TO ALLOW [PERMIT] TEST OF WEIGHING |
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[WEIGHT] OR MEASURING DEVICE [MEASURE]. A person commits an offense |
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if the person neglects or refuses to allow [exhibit] a weighing |
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[weight] or measuring device [measure] under the person's control |
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or in the person's possession to be inspected, tested, or examined |
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by the department, and the inspection, test, or examination is |
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required by this chapter [or a sealer for inspection or examination
|
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as required by law]. |
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Sec. 13.118. HINDERING DEPARTMENT PERSONNEL [SEALER]. A |
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person commits an offense if the person hinders or obstructs in any |
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way the department, a department inspector or other department |
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personnel [a sealer] in the performance of official duties. |
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Sec. 13.119. REMOVAL OF REGISTRATION [SEALER'S] TAG. A |
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person commits an offense if the person removes or obliterates a tag |
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or device placed on a weighing [weight] or measuring device |
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[measure] under this chapter [Section 13.110 or 13.111 of this
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code]. |
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SECTION 17. Sections 13.120 and 13.121, Agriculture Code, |
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are amended to read as follows: |
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Sec. 13.120. SALE OR USE OF INCORRECT WEIGHING [FALSE
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WEIGHTS] OR MEASURING DEVICE [MEASURES]. (a) The department may |
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condemn and prohibit the sale or distribution of any incorrect |
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weighing [false weight] or measuring device [measure] that is sold, |
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offered for sale, or about to be sold in this state. |
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(b) A person commits an offense if the person or the |
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person's servant or agent: |
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(1) offers or exposes for sale, hire, or award or sells |
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an incorrect weighing [a false weight] or measuring device |
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[measure]; |
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(2) possesses an incorrect weighing [a false weight] |
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or measuring device [measure]; or |
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(3) sells, offers for sale, uses, or possesses for the |
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purpose of sale or use a device or instrument to be used to falsify |
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or intended to falsify a weight or measure. |
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[(c)
In this section, "false weight or measure" has the
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meaning assigned by Section 13.037 of this code.] |
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Sec. 13.121. DISPOSING OF CONDEMNED WEIGHING OR MEASURING |
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DEVICE [WEIGHT]. A person commits an offense if the person or the |
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person's servant or agent disposes of a weighing [weight] or |
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measuring device [measure] condemned under Section 13.111 or 13.120 |
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[of this code] in a manner contrary to those sections. |
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SECTION 18. Section 13.253(b), Agriculture Code, is amended |
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to read as follows: |
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(b) An elected county public weigher must obtain a |
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certificate of authority as provided by Section 13.255 [of this
|
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code] and must execute a bond as provided by Section 13.256 [of this
|
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code] before issuing an official certificate of weight or measure |
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of a commodity. A county public weigher elected under this section |
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is subject to rules adopted by the commissioners court. |
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SECTION 19. Section 13.257(a), Agriculture Code, is amended |
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to read as follows: |
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(a) On each certificate of weight or measure of a commodity |
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that a public weigher or deputy public weigher issues, the public |
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weigher or deputy public weigher shall include the: |
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(1) time and date that the weight or measure of the |
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commodity [measurement] was taken; |
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(2) signature and license number of the public weigher |
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or deputy public weigher; and |
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(3) seal of the department. |
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SECTION 20. Section 13.259(a), Agriculture Code, is amended |
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to read as follows: |
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(a) A public weigher or deputy public weigher who |
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intentionally or knowingly issues a certificate of weight or |
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measure of a commodity giving a false weight or measure for the [a] |
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commodity [weighed or measured] commits an offense. |
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SECTION 21. Section 13.260(a), Agriculture Code, is amended |
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to read as follows: |
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(a) A person who intentionally or knowingly issues an |
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official certificate of weight or measure of a [for any] commodity |
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without first obtaining a certificate of authority under Section |
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13.255 [of this code], who issues an official certificate of weight |
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or measure of a commodity after revocation of the person's |
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certificate of authority, or who issues an official certificate of |
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weight or measure of a commodity without executing a bond as |
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required under Section 13.256 [of this code] commits an offense. |
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SECTION 22. Sections 13.401(a), (b), (d), and (f), |
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Agriculture Code, are amended to read as follows: |
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(a) A person who has a license issued under this subchapter |
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may [has all of the powers and duties of a sealer under this chapter
|
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except for]: |
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(1) inspect, test, maintain, and repair: |
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(A) a weighing or measuring device; |
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(B) a liquefied petroleum gas meter under |
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Subchapter F; or |
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(C) a ranch scale under Subchapter G; |
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(2) return an incorrect weighing or measuring device |
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to service under Section 13.111; |
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(3) prohibit an incorrect weighing or measuring device |
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from being used until the device is repaired, if the inspector |
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determines that the device can be repaired; and |
|
(4) condemn and prohibit the further use of an |
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incorrect weighing or measuring device that the inspector |
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determines cannot be repaired [testing of a package under Section
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13.039;
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[(2)
peace officer status under Section 13.108(b);
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and
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[(3)
entering premises or conducting a stop under
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Section 13.108(c)]. |
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(b) It is a defense to prosecution under Section 13.117 or |
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13.118 that the licensed inspector [sealer] is acting under the |
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authority of a license issued under this subchapter. |
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(d) Unless appointed an inspector [a sealer] under |
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Subchapter C, a person may not perform the functions of an inspector |
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[a sealer] without a license issued under this subchapter. |
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(f) A license holder under this subchapter shall conduct |
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inspecting, [or] testing, prohibiting, or condemning activities in |
|
compliance with the rules of the department. |
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SECTION 23. Section 13.404(a), Agriculture Code, is amended |
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to read as follows: |
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(a) The department [by rule] may [adopt a system to] |
|
periodically monitor and inspect or test weighing or measuring |
|
devices that have been [scales] inspected and tested by a license |
|
holder and any standards used by the license holder during an |
|
inspection or test. |
|
SECTION 24. Chapter 17, Agriculture Code, is amended by |
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adding Subchapter B-1 to read as follows: |
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SUBCHAPTER B-1. MOTOR FUEL QUALITY AND TESTING |
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Sec. 17.071. MINIMUM MOTOR FUEL QUALITY AND TESTING |
|
STANDARDS. The department by rule shall adopt minimum motor fuel |
|
quality and testing standards for motor fuel that is sold or offered |
|
for sale in this state. The standards must comply with the |
|
nationally recognized minimum standards established by: |
|
(1) the American Society for Testing and Materials, as |
|
those standards existed on September 1, 2009, for motor fuels other |
|
than motor fuels blended with ethanol; and |
|
(2) the National Institute of Standards and |
|
Technology, as those standards existed on September 1, 2009, other |
|
than the standard vapor to liquid ratio specification for motor |
|
fuels blended with ethanol. |
|
Sec. 17.072. TESTING OF MOTOR FUEL QUALITY. (a) The |
|
department may collect samples and conduct testing at any location |
|
where motor fuel is kept, transferred, sold, or offered for sale, to |
|
verify that the motor fuel complies with the minimum standards |
|
required by Section 17.071. |
|
(b) On arriving at a facility to conduct testing under |
|
Subsection (a), a representative of the department shall notify the |
|
owner or manager of the facility of the representative's presence |
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and purpose. |
|
(c) A person commits an offense if the person refuses to |
|
allow a department representative to collect samples or conduct |
|
motor fuel testing under Subsection (a). |
|
Sec. 17.073. STOP-SALE ORDER. If the department has reason |
|
to believe that motor fuel is in violation of this chapter or a rule |
|
adopted under this chapter, the department may issue and enforce a |
|
written order to stop the sale of the motor fuel. The department |
|
shall present the order to the dealer, distributor, jobber, |
|
supplier, or wholesaler who is in control of the motor fuel at the |
|
time the motor fuel is tested. The person who receives the order |
|
may not sell the motor fuel until the department determines that the |
|
motor fuel is in compliance with this chapter and department rules. |
|
SECTION 25. Sections 17.104(a) and (b), Agriculture Code, |
|
are amended to read as follows: |
|
(a) The commissioner may adopt rules consistent with this |
|
chapter for the regulation of the sale of motor fuels, including |
|
motor fuels that contain [containing] ethanol and methanol. |
|
(b) The commissioner by rule may impose a fee for testing, |
|
inspection, or the performance of other services provided as |
|
determined necessary by the commissioner in the administration of |
|
this chapter. A fee imposed under this subsection shall be |
|
collected from each dealer, distributor, jobber, supplier, and |
|
wholesaler on a periodic basis determined by the commissioner |
|
without regard to whether the motor fuel is subject to regulation |
|
under this chapter. |
|
SECTION 26. Sections 17.155(a) and (b), Agriculture Code, |
|
are amended to read as follows: |
|
(a) The department [commissioner] may impose an |
|
administrative penalty against a person regulated under this |
|
chapter who violates this chapter or a rule or order adopted under |
|
this chapter. Except as otherwise provided by this section, an |
|
administrative penalty is imposed and collected in the manner |
|
provided by Section 12.020. |
|
(b) The penalty for a violation of this chapter or a rule or |
|
order adopted under this chapter may not exceed $5,000 [$500] a day |
|
for each violation. Each day a violation continues or occurs may be |
|
considered a separate violation for purposes of imposing a penalty. |
|
SECTION 27. Subchapter D, Chapter 17, Agriculture Code, is |
|
amended by adding Section 17.156 to read as follows: |
|
Sec. 17.156. TOLL-FREE NUMBER. The department shall |
|
provide a toll-free telephone number for use by the public in |
|
reporting violations of this subchapter. |
|
SECTION 28. The following provisions of the Agriculture |
|
Code are repealed: |
|
(1) Section 13.004; |
|
(2) Section 13.102; |
|
(3) Section 13.104; |
|
(4) Section 13.108; |
|
(5) Section 13.109; |
|
(6) Section 13.110; |
|
(7) Sections 13.111(c) and (d); and |
|
(8) Section 13.116. |
|
SECTION 29. APPROPRIATIONS LIMITED TO REVENUE COLLECTIONS. |
|
It is the intent of the legislature that fees, fines, and other |
|
miscellaneous revenues as authorized and generated by this Act, at |
|
a minimum, cover the cost of the programs authorized by this Act. |
|
SECTION 30. (a) Except as provided by Subsection (b) of |
|
this section, this Act takes effect September 1, 2009. |
|
(b) Subchapter B-1, Chapter 17, Agriculture Code, as added |
|
by this Act, takes effect January 1, 2010. |
|
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 2925 was passed by the House on May 6, |
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2009, by the following vote: Yeas 143, Nays 0, 1 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 2925 on May 28, 2009, by the following vote: Yeas 142, Nays 0, |
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1 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 2925 was passed by the Senate, with |
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amendments, on May 21, 2009, by the following vote: Yeas 31, Nays |
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0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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Governor |