By Maxey                                              H.B. No. 2838
       74R5531 MLR-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the powers and duties of the Texas Department of Health
    1-3  under the Texas Food, Drug, and Cosmetic Act.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 431.002(23), Health and Safety Code, is
    1-6  amended to read as follows:
    1-7              (23)  "Manufacture" means preparing, propagating,
    1-8  compounding, or processing prior to distribution of a food, drug,
    1-9  or device from its original place of manufacture to a wholesale
   1-10  distributor of food, drugs, or devices.  The term includes:
   1-11                    (A)  repackaging or otherwise changing the
   1-12  container, wrapper, or labeling of any food, drug, or device
   1-13  package; and
   1-14                    (B)  transfilling compressed and liquid forms of
   1-15  medical gases <the process of combining or purifying food and
   1-16  packaging food for sale to a consumer at wholesale or retail>.
   1-17        SECTION 2.  Sections 431.042(b) and (c), Health and Safety
   1-18  Code, are amended to read as follows:
   1-19        (b)  The inspection of an establishment, including a factory,
   1-20  warehouse, or consulting laboratory, in which a <prescription> drug
   1-21  or <restricted> device is manufactured, processed, packed, or held
   1-22  for introduction into commerce extends to any place or thing,
   1-23  including a record, file, paper, process, control, or facility, in
   1-24  order to determine whether the drug or device:
    2-1              (1)  is adulterated or misbranded;
    2-2              (2)  may not be manufactured, introduced into commerce,
    2-3  sold, or offered for sale under this chapter; or
    2-4              (3)  is otherwise in violation of this chapter.
    2-5        (c)  An inspection under Subsection (b) may not extend to:
    2-6              (1)  financial data other than invoices, receipts,
    2-7  inventory records, and other similar information relating to the
    2-8  manufacture of a food, drug, or device;
    2-9              (2)  sales data other than shipment data;
   2-10              (3)  pricing data;
   2-11              (4)  personnel data other than data relating to the
   2-12  qualifications of technical and professional personnel performing
   2-13  functions under this chapter;
   2-14              (5)  research data other than data:
   2-15                    (A)  relating to new drugs, antibiotic drugs, and
   2-16  devices; and
   2-17                    (B)  subject to reporting and inspection under
   2-18  regulations issued under Section 505(i) or (j), 507(d) or (g), 519,
   2-19  or 520(g) of the federal Act; or
   2-20              (6)  data relating to other drugs or devices that, in
   2-21  the case of a new drug, would be subject to reporting or inspection
   2-22  under regulations issued under Section 505(j) of the federal Act.
   2-23        SECTION 3.  Sections 431.045(a) and (c), Health and Safety
   2-24  Code, are amended to read as follows:
   2-25        (a)  The commissioner or a person designated by the
   2-26  commissioner may issue an emergency order that is restrictive,
   2-27  <either> mandatory, or prohibitory in nature<,> in relation to the
    3-1  manufacture, sale, or offer for sale of a food, drug, device, or
    3-2  cosmetic in the department's jurisdiction if the commissioner or
    3-3  the person designated by the commissioner determines that:
    3-4              (1)  the manufacture, sale, or offer for sale of the
    3-5  food, drug, device, or cosmetic creates or poses an immediate and
    3-6  serious threat to human life or health; and
    3-7              (2)  other procedures available to the department to
    3-8  remedy or prevent the occurrence of the situation will result in
    3-9  unreasonable delay.
   3-10        (c)  If an emergency order is issued without a hearing, the
   3-11  department shall determine a time and place for a hearing at which
   3-12  the emergency order is affirmed, modified, or set aside.  The
   3-13  hearing shall be held under the contested case provisions of
   3-14  Chapter 2001, Government Code, and the board's formal hearing
   3-15  <departmental> rules.
   3-16        SECTION 4.  Sections 431.047(a) and (b), Health and Safety
   3-17  Code, are amended to read as follows:
   3-18        (a)  The commissioner, an authorized agent, or a health
   3-19  authority may petition the district court for a temporary
   3-20  restraining order to restrain a continuing violation of this
   3-21  chapter or a rule or order adopted under this chapter <Subchapter
   3-22  B> or a threat of a continuing violation of this chapter or a rule
   3-23  or order adopted under this chapter <Subchapter B> if the
   3-24  commissioner, authorized agent, or health authority finds that:
   3-25              (1)  a person has violated, is violating, or is
   3-26  threatening to violate this chapter or a rule or order adopted
   3-27  under this chapter <Subchapter B>; and
    4-1              (2)  the violation or threatened violation creates an
    4-2  immediate threat to the health and safety of the public.
    4-3        (b)  A district court, on petition of the commissioner, an
    4-4  authorized agent, or a health authority, and on a finding by the
    4-5  court that a person is violating or threatening to violate this
    4-6  chapter or a rule or order adopted under this chapter <Subchapter
    4-7  B> shall grant any injunctive relief warranted by the facts.
    4-8        SECTION 5.  Section 431.054(a), Health and Safety Code, is
    4-9  amended to read as follows:
   4-10        (a)  The commissioner may assess an administrative penalty
   4-11  against a person who violates this chapter or a rule <Subchapter B>
   4-12  or <an> order adopted or registration issued under this chapter.
   4-13        SECTION 6.  Sections 431.0585(a) and (c), Health and Safety
   4-14  Code, are amended to read as follows:
   4-15        (a)  At the request of the commissioner, the attorney general
   4-16  or a district, county, or city attorney shall institute an action
   4-17  in district court to collect a civil penalty from a person who has
   4-18  violated this chapter or a rule or order adopted under this chapter
   4-19  <Section 431.021>.
   4-20        (c)  The court shall consider the following in determining
   4-21  the amount of the penalty:
   4-22              (1)  the person's history of any previous violations of
   4-23  this chapter or a rule or order adopted under this chapter <Section
   4-24  431.021>;
   4-25              (2)  the seriousness of the violation;
   4-26              (3)  any hazard posed to the public health and safety
   4-27  by the violation; and
    5-1              (4)  demonstrations of good faith by the person
    5-2  charged.
    5-3        SECTION 7.  This Act takes effect September 1, 1995.
    5-4        SECTION 8.  The importance of this legislation and the
    5-5  crowded condition of the calendars in both houses create an
    5-6  emergency and an imperative public necessity that the
    5-7  constitutional rule requiring bills to be read on three several
    5-8  days in each house be suspended, and this rule is hereby suspended.