By:  Sims                                              S.B. No. 976
       73R5289 CAS-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to authorizing private persons to inspect and test weights
    1-3  and measures.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 13.039, Agriculture Code, is amended by
    1-6  adding Subsection (d) to read as follows:
    1-7        (d)  This section does not apply to a private sealer licensed
    1-8  under Section 13.1071 of this code.
    1-9        SECTION 2.  Subchapter C, Chapter 13, Agriculture Code, is
   1-10  amended by adding Sections 13.1071 and 13.1072 to read as follows:
   1-11        Sec. 13.1071.  LICENSING OF PRIVATE SEALERS.  (a)  A person
   1-12  to whom the department issues a license under this section may
   1-13  perform the duties of a sealer as provided by this subchapter.
   1-14        (b)  The department shall issue a license to a person to act
   1-15  as a private sealer if the person satisfies the requirements for a
   1-16  private sealer established by department rule and this section.
   1-17        (c)  To apply to be licensed as a private sealer, a person
   1-18  must use the form provided for that purpose by the department and
   1-19  pay a nonrefundable application and license fee of $200.
   1-20        (d)  A person is eligible to be licensed as a private sealer
   1-21  if:
   1-22              (1)  the department finds the applicant's facilities
   1-23  and proposed procedures relating to the position of sealer to be
   1-24  satisfactory following an on-site inspection of the facilities and
    2-1  review of the applicant's proposed procedures; and
    2-2              (2)  the applicant files with the department a
    2-3  certificate proving that the applicant has obtained liability
    2-4  insurance for its operations in an amount sufficient under
    2-5  department rule.
    2-6        (e)  A license issued under this section expires on the first
    2-7  anniversary of the date on which it was issued or renewed, as
    2-8  applicable.  To renew a license issued under this section, a
    2-9  private sealer must apply for the renewal on a form provided for
   2-10  that purpose by the department and pay a license renewal fee of
   2-11  $200.
   2-12        Sec. 13.1072.  DEPARTMENT REGULATION OF PRIVATE SEALERS;
   2-13  HEARINGS.  (a)  The department may reinspect or retest, or
   2-14  authorize a state, county, or local sealer to reinspect or retest,
   2-15  a weight or measure inspected or tested by a private sealer.
   2-16        (b)  If the department finds that a private sealer has
   2-17  violated this subchapter or a department rule adopted under this
   2-18  subchapter, the department shall give the private sealer written
   2-19  notice stating the specific act or omission considered by the
   2-20  department to be a violation.  The department shall provide the
   2-21  private sealer a time specified by department rule within which the
   2-22  private sealer must correct the violation.
   2-23        (c)  If the private sealer makes a written request for a
   2-24  hearing on the department's finding or if the department finds that
   2-25  the private sealer has not corrected the violation within the time
   2-26  provided by department rule, the department shall hold a hearing on
   2-27  the issue as provided by department rule and in accordance with the
    3-1  Administrative Procedure and Texas Register Act (Article 6252-13a,
    3-2  Vernon's Texas Civil Statutes).
    3-3        (d)  If the department determines at a hearing under this
    3-4  section that a violation has occurred, the department may order:
    3-5              (1)  a suspension of the private sealer's license for
    3-6  90 days or less; or
    3-7              (2)  a revocation of the license using criteria the
    3-8  department by rule has adopted.
    3-9        (e)  A person whose license has been suspended or revoked
   3-10  under Subsection (d) of this section may appeal the department's
   3-11  determination to a Travis County district court.  The court shall
   3-12  review the department's determination under the substantial
   3-13  evidence rule.
   3-14        SECTION 3.  Section 13.108, Agriculture Code, is amended to
   3-15  read as follows:
   3-16        Sec. 13.108.  Powers and Duties of Sealers.  (a)  In addition
   3-17  to inspecting, testing, and sealing weights and measures, each
   3-18  sealer, including a private sealer licensed under Section 13.1071
   3-19  of this code, and deputy sealer shall:
   3-20              (1)  preserve all copies of the standards used in
   3-21  conducting tests and keep the standards in safe and good order when
   3-22  not in use;
   3-23              (2)  keep a record of all work performed, including
   3-24  inspections made, and the name and post office address of each
   3-25  party:
   3-26                    (A)  for whom a measurement, test weight, or
   3-27  inspection is made;
    4-1                    (B)  whose weight or measure is condemned; or
    4-2                    (C)  who is prosecuted; and
    4-3              (3)  keep a record of all violations of this chapter
    4-4  and report those violations to the department.
    4-5        (b)  The commissioner, the chief deputy of weights and
    4-6  measures, and all sealers other than a private sealer have the same
    4-7  powers as peace officers in the performance of official duties.
    4-8        (c)  In the performance of official duties, a sealer other
    4-9  than a private sealer, without a warrant, may enter any premises or
   4-10  stop any vendor or vehicle containing commodities for sale or
   4-11  delivery.  The sealer may direct the vendor or vehicle to an
   4-12  appropriate place for the purpose of conducting tests under this
   4-13  subchapter.
   4-14        SECTION 4.  Section 13.109, Agriculture Code, is amended to
   4-15  read as follows:
   4-16        Sec. 13.109.  Rules Governing Sealers.  The department shall
   4-17  issue instructions and adopt rules governing state, county, and
   4-18  local sealers, and private sealers licensed under Section 13.1071
   4-19  of this code, as necessary to carry out the purposes of this
   4-20  chapter.
   4-21        SECTION 5.  Section 13.110(a), Agriculture Code, is amended
   4-22  to read as follows:
   4-23        (a)  In accordance with this subchapter, each sealer shall
   4-24  inspect and test all weights and measures used in the locality to
   4-25  which the sealer is assigned or in the city or county in which the
   4-26  sealer is appointed, unless a private sealer licensed under Section
   4-27  13.1071 of this code inspects and tests a weight or measure.
    5-1        SECTION 6.  Section 13.111, Agriculture Code, is amended to
    5-2  read as follows:
    5-3        Sec. 13.111.  Repair or Destruction of Incorrect Weights or
    5-4  Measures.  (a)  If, in the judgment of the sealer, a weight or
    5-5  measure found to be incorrect is not capable of being repaired, the
    5-6  sealer, other than a private sealer licensed under Section 13.1071
    5-7  of this code, may condemn, seize, and destroy the weight or
    5-8  measure.  A private sealer shall report the existence and location
    5-9  of a weight or measure under this subsection to the department as
   5-10  provided by department rule.
   5-11        (b)  If, in the judgment of the sealer, including a private
   5-12  sealer, an incorrect weight or measure is capable of being
   5-13  repaired, the sealer shall place on the weight or measure a tag or
   5-14  other mark with the words "Out of Order."  The owner or user of the
   5-15  weight or measure may have it repaired within 30 days, but may not
   5-16  use or dispose of it until it is reinspected and sealed.  After
   5-17  repair, the owner or user shall notify the sealer and the sealer
   5-18  shall reinspect the weight or measure.  If it is found to be
   5-19  correct, the sealer shall remove the out-of-order tag and seal the
   5-20  weight or measure as provided by Section 13.110 of this code.
   5-21        SECTION 7.  The importance of this legislation and the
   5-22  crowded condition of the calendars in both houses create an
   5-23  emergency and an imperative public necessity that the
   5-24  constitutional rule requiring bills to be read on three several
   5-25  days in each house be suspended, and this rule is hereby suspended,
   5-26  and that this Act take effect and be in force from and after its
   5-27  passage, and it is so enacted.