Amend CSSB 1355 by adding an appropriately numbered SECTION
to the bill, to read as follows, and renumbering the existing
SECTIONS of the bill accordingly:
SECTION ____. (a) Chapter 485, Health and Safety Code, is
amended to read as follows:
CHAPTER 485. ABUSABLE VOLATILE CHEMICALS
<GLUES AND AEROSOL PAINTS>
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 485.001. DEFINITIONS. In this chapter:
(1) "Abusable volatile chemical <glue or aerosol
paint>" means a chemical, including <glue or> aerosol paint, that
<is>:
(A) is packaged in a container subject to
<holding a pint or less by volume or less than two pounds by
weight; and>
<(B) labeled in accordance with> the labeling
requirements concerning precautions against inhalation established
under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
et seq.), and <under> regulations adopted under that Act;
(B) when inhaled, ingested, or otherwise
introduced into a person's body, may:
(i) affect the person's central nervous
system;
(ii) create or induce in the person a
condition of intoxication, hallucination, or elation; or
(iii) change, distort, or disturb the
person's eyesight, thinking process, balance, or coordination; and
(C) is not:
(i) a pesticide subject to Chapter 76,
Agriculture Code, or to the Federal Environmental Pesticide Control
Act of 1972 (7 U.S.C. Section 136 et seq.);
(ii) a food, drug, or cosmetic subject to
Chapter 431 or to the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Section 301 et seq.); or
(iii) a beverage subject to the Federal
Alcohol Administration Act (27 U.S.C. Section 201 et seq.).
(2) "Aerosol paint" means an aerosolized paint
product, including a clear or pigmented lacquer or finish.
(3) "Board" means the Texas Board of Health.
(4) "Commissioner" means the commissioner of health.
(5) <(4)> "Deliver" means to make the actual or
constructive transfer from one person to another of an abusable
volatile chemical <glue or aerosol paint>, regardless of whether
there is an agency relationship. The term includes an offer
<offering> to sell an abusable volatile chemical <glue or aerosol
paint>.
(6) <(5)> "Delivery" means the act of delivering.
(7) <(6)> "Department" means the Texas Department of
Health.
<(7) "Glue" means an adhesive substance intended to be
used to join two surfaces.>
(8) "Inhalant paraphernalia" means equipment,
products, or materials of any kind that are used or intended for
use in inhaling, ingesting, or otherwise introducing into the human
body an abusable volatile chemical <glue or aerosol paint in
violation of Section 485.031>. The term includes:
(A) a can, tube, or other container used as the
original receptacle for an abusable volatile chemical <glue or
aerosol paint>; or
(B) a can, tube, balloon, bag, fabric, bottle,
or other container used to contain, concentrate, or hold in
suspension an abusable volatile chemical <glue or aerosol paint,>
or vapors of the chemical <glue or paint>.
(9) "Sell" includes a conveyance, exchange, barter, or
trade.
SUBCHAPTER B. ADDITIVES, SALES PERMITS, AND SIGNS
Sec. 485.011. ADDITIVES. (a) The board <commissioner> by
rule shall:
(1) approve and designate additive materials to be
included in abusable volatile chemicals <glue or aerosol paint>;
and
(2) prescribe the proportions of additive materials to
be placed in abusable volatile chemicals <glue or aerosol paint>.
(b) The rules must be designed to safely and effectively
discourage intentional abuse by inhalation of abusable volatile
chemicals <glue or aerosol paint> at the lowest practicable cost to
the manufacturers and distributors of the chemicals <glue or
paint>.
Sec. 485.012. PERMIT REQUIRED. A person may not sell an
abusable volatile chemical <glue or aerosol paint> at retail unless
the person or the person's employer holds <has>, at the time of the
sale, a volatile chemical <glue and paint> sales permit for the
location of the sale.
Sec. 485.013. ISSUANCE AND RENEWAL OF PERMIT. (a) To be
eligible for the issuance or renewal of a volatile chemical <glue
and paint> sales permit, a person must:
(1) hold <have> a sales tax permit that has been
issued to the person;
(2) complete and return to the department an
application as required by the department; and
(3) pay to the department the <a $25> application fee
established under Section 485.0135 for each location at which an
abusable volatile chemical <glue and aerosol paint> may be sold by
the person holding <on obtaining> a volatile chemical <glue and
paint> sales permit.
(b) The board <department> shall adopt rules as necessary to
administer this chapter, including application procedures and
procedures by which the department shall give each permit holder
<permittee> reasonable notice of permit expiration and renewal
requirements.
(c) The department shall issue or deny a permit and notify
the applicant of the department's action not later than the 60th
day after the date on which the department receives the application
and appropriate fee. If the department denies an application, the
department shall include in the notice the reasons for the denial.
(d) A permit issued or renewed under this chapter is valid
for one year from the date of issuance or renewal.
(e) A permit is not valid if the permit holder has been
convicted more than once in the preceding year of an offense <that
is> committed:
(1) at a <the> location for which the permit is
issued; and
(2) under Section <484.005(a),> 485.031, 485.032,
485.033, or 485.034.
(f) A permit issued by the department is the property of the
department and must be surrendered on demand by the department.
(g) The department shall prepare an annual roster of permit
holders.
(h) The department shall monitor and enforce compliance with
this chapter.
Sec. 485.0135. FEES. The board by rule may impose a fee for
the issuance of a permit under this chapter as necessary to recover
the costs associated with administering this chapter. The amount of
the fee may not exceed $35.
Sec. 485.014. PERMIT AVAILABLE FOR INSPECTION. A permit
holder must have the volatile chemical <glue and paint> sales
permit or a copy of the permit available for inspection by the
public at each location <the place> where the permit holder sells
an abusable volatile chemical <glue and aerosol paint>.
Sec. 485.015. REFUSAL TO ISSUE OR RENEW PERMIT. A
proceeding for the failure to issue or renew a volatile chemical
<glue and paint> sales permit under Section 485.013 or for an
appeal from that proceeding is governed by the contested case
provisions of Chapter 2001, Government Code.
Sec. 485.016. DISPOSITION OF FUNDS; EDUCATION AND PREVENTION
PROGRAMS. (a) The department shall <receive and> account for all
amounts <funds> received under Section 485.0135 <485.013> and send
those amounts <the funds as they are received> to the comptroller.
(b) The comptroller shall deposit the amounts received under
Subsection (a) in the state treasury <those funds> to the credit of
a separate account in the general revenue fund to be known as the
inhalant abuse prevention account. Money in the account may <to>
be used only to:
(1) administer, monitor, and enforce this chapter; and
(2) finance education projects concerning the hazards
of abusable volatile chemicals <glue or aerosol paint> and the
prevention of inhalant abuse.
(c) The department shall enter into a memorandum of
understanding with the Texas Commission on Alcohol and Drug Abuse
to implement the education and prevention programs.
Sec. 485.017. SIGNS. A business establishment that sells an
abusable volatile chemical <glue or aerosol paint> at retail shall
display a conspicuous sign, in English and Spanish, that states the
following:
It is unlawful for a person to sell or deliver an
abusable volatile chemical <glue or aerosol paint> to a
person under 18 years of age. Except in limited
situations, such an offense is a state jail <3rd
degree> felony.
It is also unlawful for a person to abuse a volatile
chemical <glue or aerosol paint> by inhaling,
ingesting, applying, using, or possessing with intent
to inhale, ingest, apply, or use a volatile chemical
<glue or aerosol paint> in a manner designed to affect
the central nervous system. Such an offense is a
Class B misdemeanor.
Sec. 485.018. PROHIBITED ORDINANCE AND RULE. (a) A
political subdivision or an agency of this <the> state may not
enact an ordinance or rule that requires a business establishment
to display an abusable volatile chemical <glue or aerosol paint> in
a manner that makes the chemical <glue or paint> accessible to
patrons of the business only with the assistance of personnel of
the business.
(b) This section does not apply to an ordinance or rule that
was enacted before September 1, 1989.
SUBCHAPTER C. CRIMINAL PENALTIES
Sec. 485.031. POSSESSION AND USE. (a) A person commits an
offense if the person inhales, ingests, applies, uses, or possesses
an abusable volatile chemical <glue or aerosol paint> with intent
to inhale, ingest, apply, or use the chemical <abusable glue or
aerosol paint> in a manner:
(1) contrary to directions for use, cautions, or
warnings appearing on a label of a container of the chemical <glue
or paint>; and
(2) designed to:
(A) affect the person's central nervous system;
(B) create or induce a condition of
intoxication, hallucination, or elation; or
(C) change, distort, or disturb the person's
eyesight, thinking process, balance, or coordination.
(b) An offense under this section is a Class B misdemeanor.
Sec. 485.032. MANUFACTURE AND DELIVERY. (a) A person
commits an offense if the person intentionally manufactures,
delivers, or possesses with intent to manufacture or deliver an
abusable volatile chemical <glue or aerosol paint> that does not
contain additive material in accordance with rules adopted by the
board <commissioner>.
(b) It is an affirmative defense to prosecution under this
section that the abusable volatile chemical <glue or aerosol paint>
is packaged in bulk quantity containers, each of which holds at
least two gallons, and is intended for ultimate use only by
industrial or commercial enterprises.
(c) An offense under this section is a Class A misdemeanor.
Sec. 485.033. DELIVERY TO A MINOR. (a) A person commits an
offense if the person <intentionally, knowingly, or> recklessly
delivers an abusable volatile chemical <glue or aerosol paint> to a
person who is younger than 18 years of age.
(b) It is a defense to prosecution under this section that:
(1) the abusable volatile chemical <glue or aerosol
paint> that was delivered contains additive material that
effectively discourages intentional abuse by inhalation and <or> is
in compliance with rules adopted by the board <commissioner> under
Section 485.011; or
(2) the product as received and held by the person
making the delivery was not labeled "vapor harmful".
(c) It is an affirmative defense to prosecution under this
section that:
(1) the person making the delivery is an adult having
supervisory responsibility over the person younger than 18 years of
age and:
(A) the adult permits the use of the abusable
volatile chemical <glue or aerosol paint> only under the adult's
direct supervision and in the adult's presence and only for its
intended purpose; and
(B) the adult removes the chemical <substance>
from the person younger than 18 years of age on completion of that
use; or
(2) the person to whom the abusable volatile chemical
<glue or aerosol paint> was delivered presented to the defendant an
apparently valid Texas driver's license or an identification
certificate <card>, issued by the Department of Public Safety of
the State of Texas and containing a physical description consistent
with the person's appearance, that purported to establish that the
person was 18 years of age or older.
(d) Except as provided by Subsections (e) and (f), an
offense under this section is a state jail felony.
(e) An offense under this section is a Class B misdemeanor
if it is shown on the trial of the defendant that at the time of
the delivery the defendant or the defendant's employer held <had> a
volatile chemical <glue and paint> sales permit for the location of
the sale.
(f) An offense under this section is a Class A misdemeanor
if it is shown on the trial of the defendant that at the time of
the delivery the defendant or the defendant's employer:
(1) did not hold <have> a volatile chemical <glue and
paint> sales permit but did hold <have> a sales tax permit for the
location of the sale; and
(2) had not been convicted previously under this
section for an offense committed after January 1, 1988.
Sec. 485.034. INHALANT PARAPHERNALIA. (a) A person commits
an offense if the person <intentionally or> knowingly uses or
possesses with intent to use inhalant paraphernalia to inhale,
ingest, or otherwise introduce into the human body an abusable
volatile chemical <glue or aerosol paint> in violation of Section
485.031.
(b) A person commits an offense if the person:
(1) knowingly <or intentionally>:
(A) delivers or sells inhalant paraphernalia;
(B) possesses, with intent to deliver or sell,
inhalant paraphernalia; or
(C) manufactures, with intent to deliver or
sell, inhalant paraphernalia; and
(2) at the time of the act described by Subdivision
(1), knows that the person who receives or is intended to receive
the paraphernalia intends that it be used to inhale, ingest, apply,
use, or otherwise introduce into the human body a <substance
containing a> volatile chemical in violation of Section 485.031.
(c) An offense under Subsection (a) is a Class B
misdemeanor, and an offense under Subsection (b) is a Class A
misdemeanor.
Sec. 485.035. FAILURE TO POST SIGN. (a) A person commits
an offense if the person sells an abusable volatile chemical <glue
or aerosol paint> in a business establishment and the person does
not display the <a> sign <as> required by Section 485.017.
(b) An offense under this section is a Class C misdemeanor.
Sec. 485.036. SALE WITHOUT PERMIT. (a) A person commits an
offense if the person sells an abusable volatile chemical <glue or
aerosol paint> in violation of Section 485.012 and the purchaser is
18 years of age or older.
(b) An offense under this section is a Class B misdemeanor.
Sec. 485.037. PROOF OF OFFER TO SELL. Proof of an offer to
sell an abusable volatile chemical <glue or aerosol paint> must be
corroborated by a person other than the offeree or by evidence
other than a statement of the offeree.
Sec. 485.038. SUMMARY FORFEITURE. An abusable volatile
chemical <glue, aerosol paint,> or inhalant paraphernalia seized as
a result of an offense under this chapter is subject to summary
forfeiture and to destruction or disposition in the same manner as
controlled substance property under Subchapter E, Chapter 481.
Sec. 485.039. PREPARATORY OFFENSES. Title 4, Penal Code,
applies to an offense under this subchapter.
SUBCHAPTER D. CIVIL AND ADMINISTRATIVE PENALTIES
Sec. 485.051. CIVIL PENALTY; INJUNCTION. (a) If it appears
that a person has violated, is violating, or is threatening to
violate this chapter or a rule adopted under this chapter, the
commissioner may request the attorney general, a district or county
attorney for the county, or the city attorney of the municipality
in which the violation has occurred, is occurring, or may occur to
institute a civil suit for:
(1) a permanent or temporary injunction, restraining
order, other order enjoining the violation or directing compliance,
or other appropriate order if the department shows that the person
is engaged in or is about to engage in a violation;
(2) the assessment and recovery of a civil penalty; or
(3) both the injunctive relief and civil penalty.
(b) The amount of the penalty may not exceed $25,000 for
each violation. Each day a violation continues is a separate
violation.
(c) In determining the amount of the penalty, the court
shall consider:
(1) the person's history of previous violations;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the public;
(4) the demonstrated good faith of the person charged,
including any effort by that person to establish or implement
policies or procedures to ensure compliance with this chapter; and
(5) any other matter that justice may require.
(d) Venue for a suit brought under this section is in the
municipality or county in which the violation has occurred, is
occurring, or is threatened to occur, or in Travis County.
(e) A civil penalty recovered in a suit brought by a county
or municipality under this chapter shall be paid to the county or
municipality. A civil penalty recovered by the attorney general or
a district attorney shall be deposited in the state treasury to the
credit of the inhalant abuse prevention account.
(f) The commissioner, the attorney general, a county, or a
municipality may recover reasonable expenses incurred in obtaining
injunctive relief, civil penalties, or both under this section,
including investigative costs, court costs, reasonable attorney's
fees, witness fees, and deposition expenses.
Sec. 485.052. ADMINISTRATIVE PENALTY. (a) The department
may impose an administrative penalty against a person who holds a
permit under this chapter and who violates this chapter or a rule
adopted or order issued under this chapter.
(b) The amount of the penalty may not exceed $25,000 for
each violation. Each day a violation continues is a separate
violation.
(c) In determining the amount of the penalty, the department
shall consider:
(1) the person's history of previous violations;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the public;
(4) the demonstrated good faith of the person charged,
including any effort by that person to establish or implement
policies or procedures to ensure compliance with this chapter; and
(5) any other matter justice may require.
Sec. 485.053. NOTICE OF ADMINISTRATIVE PENALTY; ACCEPTANCE
OR REQUEST FOR HEARING. (a) If the department determines that a
violation has occurred, the department shall give written notice of
that determination to the person. The notice must include:
(1) a brief summary of the alleged violation;
(2) a statement of the amount of the proposed penalty
based on the factors listed in Section 485.052; and
(3) a statement of the person's right to a hearing on
the occurrence of the violation, the amount of the penalty, or both
the occurrence of the violation and the amount of the penalty.
(b) Not later than the 20th day after the date the person
receives the notice, the person may accept the determination of the
department under this section, including the amount of the proposed
penalty, or may make a written request for a hearing on that
determination.
(c) If the person accepts the determination and proposed
penalty or if the person fails to respond timely to the notice, the
department shall issue an order affirming the determination and
imposing the penalty.
Sec. 485.054. HEARING; ORDER. (a) If the person requests a
hearing, the department shall:
(1) set a hearing;
(2) give notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the
hearing.
(b) The hearings examiner shall make findings of fact and
conclusions of law and promptly issue to the department a proposal
for a decision about the occurrence of the violation and the amount
of a proposed penalty.
(c) Based on the findings of fact, conclusions of law, and
proposal for a decision, the department by order may find that a
violation has occurred and impose a penalty or may find that no
violation occurred.
(d) The notice of the order given to the person under
Chapter 2001, Government Code, must include a statement of the
right of the person to judicial review of the order.
Sec. 485.055. COMPLIANCE WITH ORDER; RIGHT TO JUDICIAL
REVIEW. (a) Not later than the 30th day after the date the order
is final as provided by Section 2001.144, Government Code, the
person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(b) Within the 30-day period, a person who acts under
Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the
court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court an affidavit of the
person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) sending a copy of the affidavit to the
department by certified mail.
(c) If the department receives a copy of an affidavit under
Subsection (b)(2), the department may file with the court, not
later than the fifth day after the date that the copy is received,
a contest to the affidavit. The court shall hold a hearing on the
facts alleged in the affidavit as soon as practicable and shall
stay the enforcement of the penalty on finding that the facts
alleged in the affidavit are true. The person who files an
affidavit has the burden of proving that the person is financially
unable to pay the amount of the penalty and to give a supersedeas
bond.
(d) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the department may
refer the matter to the attorney general for collection of the
amount of the penalty.
Sec. 485.056. JUDICIAL REVIEW; FINAL DISPOSITION. (a)
Judicial review of the order:
(1) is instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(b) If the court sustains the occurrence of the violation,
the court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(c) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the amount
of the penalty and if that amount is reduced or is not upheld by
the court, the court shall order the department to remit the
appropriate amount plus accrued interest to the person. The rate
of the interest is the rate charged on loans to depository
institutions by the New York Federal Reserve Bank, and the interest
shall be paid for the period beginning on the date the penalty was
paid and ending on the date the penalty is remitted. If the person
gave a supersedeas bond and if the amount of the penalty is not
upheld by the court, the court shall order the release of the bond.
If the person gave a supersedeas bond and if the amount of the
penalty is reduced, the court shall order the release of the bond
after the person pays the amount.
(d) A penalty collected under this section shall be
deposited in the state treasury to the credit of the inhalant abuse
prevention account.
Sec. 485.057. RECOVERY OF COSTS. (a) The department may
order a person to make a payment to the department in an amount
necessary to recover reasonable costs and expenses incurred by the
department in investigating a matter or conducting a hearing
regarding the matter if as a result of the hearing an
administrative penalty is assessed against the person or the
person's permit is denied, suspended, or revoked. If a payment is
ordered under this subsection, the person shall make the payment
not later than the 30th day after the date of the order. The
department may refer the matter to the attorney general for
collection.
(b) If the attorney general brings an action against a
person to enforce an administrative penalty or collect a payment
ordered under this subchapter and the person is found liable for
the penalty or payment, the attorney general may recover from the
person an amount representing reasonable costs and expenses
incurred by the attorney general in an action brought under this
subsection.
(b) Chapter 484, Health and Safety Code, is repealed.
(c) The changes in law made by this section to Chapter 485,
Health and Safety Code, apply only to an offense committed on or
after the effective date of this Act. An offense committed before
the effective date of this Act is covered by the law in effect when
the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this subsection, an
offense was committed before the effective date of this Act if any
element of the offense occurred before that date.
(d) The changes in law made by this section to Chapter 485,
Health and Safety Code, relating to a civil or administrative
penalty apply only to a violation of Chapter 485, Health and Safety
Code, as amended by this section, or a rule of the Texas Board of
Health adopted under that chapter, as amended by this section, that
occurs on or after the effective date of this Act. A violation
that occurred before the effective date of this Act is covered by
the law in effect when the violation occurred, and the former law
is continued in effect for that purpose. For purposes of this
subsection, a violation occurred before the effective date of this
Act if any element of the violation occurred before that date.
(e) The change in law made by this section relating to the
issuance of a permit under Chapter 485, Health and Safety Code,
applies only to a permit that is issued by the Texas Department of
Health on or after the effective date of this Act. A permit that
was issued by the Texas Department of Health before the effective
date of this Act remains in effect until the permit expires, is
surrendered by the holder, or is revoked or suspended by the
department.