1-1  By:  Moffat (Senate Sponsor - Harris)                 H.B. No. 2023
    1-2        (In the Senate - Received from the House May 10, 1995;
    1-3  May 11, 1995, read first time and referred to Committee on State
    1-4  Affairs; May 25, 1995, reported favorably by the following vote:
    1-5  Yeas 9, Nays 0; May 25, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to illegal fireworks and certain offenses relating to
    1-9  fireworks.
   1-10        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-11        SECTION 1.  Section 3, Article 5.43-4, Insurance Code, is
   1-12  amended to read as follows:
   1-13        Sec. 3.  Local Regulation.  (a)  This article and rules
   1-14  adopted under this article have uniform force and effect throughout
   1-15  the state.  Any lawfully enacted municipal or county ordinance,
   1-16  order, or rule in effect on the effective date of this article is
   1-17  not invalidated by this article.  Except as provided by Subsection
   1-18  (b), this <This> article does not limit or restrict the authority
   1-19  of counties, where specifically authorized by statute to do so, or
   1-20  of cities, towns, or villages as defined by Title 28, Revised
   1-21  Statutes, to enact ordinances or orders prohibiting or further
   1-22  regulating fireworks.
   1-23        (b)  A municipal ordinance or order may not prohibit the
   1-24  transportation of Class C fireworks on hazardous material routes
   1-25  through the municipality or prohibit the transfer of Class C
   1-26  fireworks in transit at facilities designed for the transfer by a
   1-27  common carrier within the municipality, if the fireworks are in the
   1-28  continuing course of intrastate or interstate commerce.
   1-29        SECTION 2.  Section 17(f), Article 5.43-4, Insurance Code, is
   1-30  amended to read as follows:
   1-31        (f)  A person may not:
   1-32              (1)  explode or ignite fireworks within 600 feet of any
   1-33  church, a hospital other than a veterinary hospital, an asylum, a
   1-34  licensed child care center, or a public or private primary or
   1-35  secondary school or institution of higher education;
   1-36              (2)  sell at retail, explode, or ignite fireworks
   1-37  within 100 feet of a place where flammable liquids or flammable
   1-38  compressed gasses are stored and dispensed;
   1-39              (3)  explode or ignite fireworks within 100 feet of a
   1-40  place where fireworks are stored or sold;
   1-41              (4)  ignite or discharge fireworks within or from a
   1-42  motor vehicle;
   1-43              (5)  place ignited fireworks in, or throw ignited
   1-44  fireworks at, a motor vehicle;
   1-45              (6)  conduct a public fireworks display that includes
   1-46  Class B fireworks unless the person is a licensed pyrotechnic
   1-47  operator;
   1-48              (7)  conduct an indoor display of fireworks that
   1-49  includes Class C fireworks without the approval of the local fire
   1-50  prevention officer;
   1-51              (8)  obtain or attempt to obtain a license or permit by
   1-52  fraudulent representation; <or>
   1-53              (9)  sell, store, manufacture, distribute, or display
   1-54  fireworks except as provided by this article or rules adopted by
   1-55  the board under this article; or
   1-56              (10)  transport fireworks through a municipality other
   1-57  than on a route designated by the municipality for the
   1-58  transportation of hazardous materials if routes for the
   1-59  transportation of hazardous materials have been designated by the
   1-60  municipality subject to Section 3(b) of this article.
   1-61        SECTION 3.  Section 19, Article 5.43-4, Insurance Code, is
   1-62  amended to read as follows:
   1-63        Sec. 19.  PENALTIES.  (a)  A person commits an offense if the
   1-64  person knowingly or intentionally violates Section 17 of this
   1-65  article.
   1-66        (b)  Except as provided by Subsection (c) of this section, an
   1-67  <An> offense under this section is a Class B misdemeanor.
   1-68        (c)  Except as provided by Subsection (d) of this section, an
    2-1  offense for a violation of Section 17(f)(1), (2), (3), (4), (5), or
    2-2  (10) of this article is a Class C misdemeanor.
    2-3        (d)  If it is shown on the trial of an offense described by
    2-4  Subsection (c) of this section that the act constituting the
    2-5  offense resulted in property damage of at least $200 or in bodily
    2-6  injury or death, the offense is a Class B misdemeanor.
    2-7        (e)  Each day that a violation occurs or continues
    2-8  constitutes a separate offense.
    2-9        (f) <(d)>  Venue under this section is in the county in which
   2-10  the offense is committed or in Travis County.
   2-11        (g) <(e)>  If the board determines that a  violation of this
   2-12  article creates a threat to the public safety, the board may bring
   2-13  suit, in the district or county court of the county in which the
   2-14  offense was committed or the county in which the person who
   2-15  committed the offense resides or has an office, to enjoin the
   2-16  person from engaging in the prohibited activity.  The board is not
   2-17  required to give bond as a condition to the issuance of injunctive
   2-18  relief.
   2-19        (h) <(f)>  The state fire marshal, a fire chief, a fire
   2-20  marshal, their deputies, or a police or peace officer may seize
   2-21  from retail fireworks consumers illegal fireworks as defined by
   2-22  this article.  Fireworks seized in the enforcement of this article
   2-23  shall be kept in the custody of the seizing agent or the sheriff of
   2-24  the county in which the fireworks were seized.  The owner of the
   2-25  seized fireworks may file an action contesting the seizure in a
   2-26  district or county court in the county in which the fireworks were
   2-27  seized.  On filing an action under this subsection, the owner shall
   2-28  give notice of the filing of the action to the seizing agent or
   2-29  sheriff.  The court may, not later than the 30th  day after the
   2-30  hearing on the seizure, authorize the return of part or all of the
   2-31  confiscated fireworks.  The court shall order any fireworks not
   2-32  returned to be destroyed.  If the seizing agent or sheriff does not
   2-33  receive notice of an action contesting the seizure <is not filed>
   2-34  by the 31st <30th> day after the seizure, the seizing agent or the
   2-35  sheriff shall destroy the fireworks.
   2-36        SECTION 4.  Article 5.43-4, Insurance Code, is amended by
   2-37  adding Section 21 to read as follows:
   2-38        Sec. 21.  WAIVER FOR TRANSPORTATION OF CERTAIN EXPLOSIVES.
   2-39  The Texas Commission on Fire Protection, in consultation with the
   2-40  commission's fireworks advisory council, may adopt rules to
   2-41  implement any waiver authorized by the Federal Highway
   2-42  Administration for the transportation of fireworks classified as
   2-43  Class 1.3G explosives in conformance with the requirements of the
   2-44  waiver.
   2-45        SECTION 5.  (a)  The change in law made by this Act applies
   2-46  only to the punishment for an offense committed on or after the
   2-47  effective date of this Act.  For purposes of this section, an
   2-48  offense is committed before the effective date of this Act if any
   2-49  element of the offense occurs  before the effective date.
   2-50        (b)  An offense committed before the effective date of this
   2-51  Act is covered by the law in effect when the offense was committed,
   2-52  and the former law is continued in effect for that purpose.
   2-53        SECTION 6.  This Act applies only to the seizure of fireworks
   2-54  on or after the effective date of this Act.  The seizure of
   2-55  fireworks before the effective date of this Act is governed by the
   2-56  law in effect immediately before the effective date of this Act,
   2-57  and the former law is continued in effect for that purpose.
   2-58        SECTION 7.  This Act takes effect September 1, 1995.
   2-59        SECTION 8.  The importance of this legislation and the
   2-60  crowded condition of the calendars in both houses create an
   2-61  emergency and an imperative public necessity that the
   2-62  constitutional rule requiring bills to be read on three several
   2-63  days in each house be suspended, and this rule is hereby suspended.
   2-64                               * * * * *