BG C.S.H.B. 1786 75(R)BILL ANALYSIS


PUBLIC HEALTH
C.S.H.B. 1786
By: Coleman
4-10-97
Committee Report (Substituted)

BACKGROUND 

The sale of certain abusable consumer products to minors is prohibited
under Chapters 484 and 485, Health and Safety Code. By combining these two
chapters, retailers would be prohibited from selling abusable consumer
products to minors if the product manufacturer labeled the product with a
"Vapor Harmful" warning statement.  Under current law, retailers must
review the chemical analysis of each product they sell to determine if it
may, or may not, be sold to minors. 

Volatile chemicals are typically paints, solvents, fuel additives,
carburetor cleaners, dyes and aerosol products, they are addressed in
Chapter 484. If they contain 10% or more of toluene or xylene; or 4% or
more of methyl alcohol, their sale is are prohibited to to minors.
Although products containing these chemicals must be labeled with a "vapor
harmful" warning statement such as "WARNING-VAPOR HARMFUL"or "DANGER-VAPOR
HARMFUL" according to federal and state law, there is no permit
requirement to sell them. Although the law provides for criminal
penalties, no government entity is responsible for enforcement.    

Chapter 485 is entitled "Abusable Glues and Aerosol Paints."  It prohibits
the sale of glues and aerosol paints to minors if they contain certain
abusable chemicals. These products must also be labeled with a "vapor
harmful" warning statement.  Before selling these products, retailers must
first obtain a retail sales permit from the Texas Department of Health
(TDH). Retailers must also post a bilingual warning sign that states that
the products may not be sold to minors.  Revenue from the sale of permits
is dedicated to TDH for administration and enforcement and to the Texas
Commission on Alcohol and Drug Abuse for inhalant abuse prevention
programs. Under current law, approximately 10,000 retail establishments
are issued the $25.00 permit annually. 

PURPOSE

C.S.H.B. 1786 merges Chapter 484 into Chapter 485 and changes the name
from "Abusable Glues and Aerosol Paints" to "Abusable Volatile Chemicals".
Permit requirements are expanded to include abusable consumer products
previously regulated under Chapter 484 and a small number of products
which were not previously regulated. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill expressly grants additional
rulemaking authority in SECTION 1 (Sec, 485.0135, Health and Safety Code)
to the Texas Board of Health (board). Existing rulemaking authority is
transferred to the board from the Commissioner of Health in Sec.
485.011(a); and from TDH in Sec. 485.013(b). 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 485, Health and Safety Code, by changing the
heading from "Abusable Glues and Aerosol Paints" to Abusable Volatile
Chemicals," revising Subchapters A, B, and C, and adding Subchapter D as
follows:   

Subchapter A.

Sec. 485.001.  Replaces references to abusable "glues or aerosol paint"
with "volatile chemical." Omits language regarding the size or weight of
the container. Adds language to define "abusable volatile chemical" as a
chemical which when inhaled, ingested or  introduced into a person's body
may affect the central nervous system or cause intoxication as specified.
Specifies that this definition does not include pesticides; food, drugs,
or cosmetics covered under Chapter 431, Health and Safety Code; or
alcoholic beverages.  Removes definitions for glue.  Adds definitions for
"Board" meaning the Texas Board of Health, and "Sell." Makes conforming
changes. 

Subchapter B.

Sec. 485.011.  Changes "commissioner" to "board" in reference to whose
rules are required. Replaces references to "abusable glues or aerosol
paint" to "abusable volatile chemicals."  

Sec. 485.012.  Makes conforming and nonsubstantive language changes.

Sec. 485.013.  Omits language setting the amount of the permit application
fee at $25 and adds reference to a new Section 485.135 under which the
board will set fees. Replaces "department" with the "board" in regards to
the entity required to adopt rules necessary to administer this chapter.
Makes conforming and nonsubstantive language changes. Deletes reference to
Section 484.005(a) which is being folded into Chapter 485.   

Sec. 485.0135.  Adds this section to allow the board, by rule, to
establish fees as necessary to recover costs associated with administering
this chapter, including a standard fee in an amount not to exceed $50 for
issuance of a permit. 

Sec. 485.014. Makes conforming changes.

Sec. 485.015.  Makes conforming changes

Sec. 485.016.  Revises language to omit the requirement that TDH receive
the funds under Section 485.013, but retains the requirement that TDH
account for amounts received and conforms the section under which the
funds are received to Sec. 485.0135. Revises language to clarify that
"those amounts" must be sent to the comptroller, who will deposit them
into a separate account to be known as the inhalant abuse prevention
account. Establishes that money in the account may only be used as
specified. Makes conforming and nonsubstantive language changes.  

Sec. 485.017.  Changes "3rd degree" felony to "state jail" felony. Makes
conforming changes. 

 Sec. 485.018.  Makes conforming and nonsubstantive language changes.

Subchapter C.

Sec. 485.031 Makes conforming and nonsubstantive language changes.

Sec. 485.032. Replaces "commissioner" with "board" in regards to whose
adopted rules should be in accordance with and makes conforming changes.   

Sec. 485.033. Removes "intentionally, knowingly, or" from the adverb
recklessly. Revises the reference to rules adopted by the "commissioner"
to the "board." Adds as a defense to criminal prosecution under this
section, the circumstance in which the person making the delivery is not
the manufacturer and is unaware of labeling faults as specified. Makes
conforming and nonsubstantive language changes.  

Sec. 485.034.  Deletes terminology regarding "intentional" use,
possession, or sale of inhalant paraphernalia, makes conforming and
nonsubstantive language changes. 

Sec. 485.035.  Makes conforming and nonsubstantive language changes.

 Sec. 485.036.  Makes conforming and nonsubstantive language changes.

Sec. 485.037.  Makes conforming change.

Sec. 485.038.  Makes conforming change. 

Subchapter D. CIVIL AND ADMINISTRATIVE PENALTIES. 

Sec. 485.051.  (a) allows the commissioner to request the attorney general
or government attorney, as specified, to institute a civil suit if it
appears that a person is in violation of this chapter. Lists certain legal
remedies to be requested in such a lawsuit.  

Subsection (b) establishes that a penalty amount is not to exceed $25,000
for each violation, and that each day a violation continues is a separate
violation.  

Subsection (c) requires the court to consider factors, as specified, in
determining the amount of the penalty.  

Subsection (d) establishes the venue for bringing a suit under this action
as specified.  

Subsection (e) requires that a civil penalty recovered in a suit brought
by a county or municipality under this chapter be paid to the county or
municipality. Requires that a civil penalty recovered by the attorney
general or district attorney be deposited in the state treasury to the
credit of the inhalant abuse prevention account. 

Subsection (f) allows the commissioner, the attorney general, a county, or
municipality to recover reasonable expenses, as specified. 

Sec. 485.052. ADMINISTRATIVE PENALTY. 

Subsection (a) allows TDH to impose an administrative penalty against a
person holding a permit and in violation as specified. 

Subsection (b) allows the penalty to be in an amount not over $25,000 for
each violation as specified.   

Subsection (c) requires TDH to consider factors as specified in
determining the amount of the penalty. 

Sec. 485.053. NOTICE OF ADMINISTRATIVE PENALTY; ACCEPTANCE OR REQUEST FOR
A HEARING. 

Subsection (a) requires TDH to give written notice as specified if it
determines that a violation has occurred. 

Subsection (b) allows the person to accept the determination and the
proposed penalty amount or make a written request for a hearing not later
than 20 days after notice is received. 

Subsection (c) requires TDH to issue an affirming order as specified if
the determination is accepted or if the person fails to respond timely to
the notice. 

Sec. 485.054  HEARING; ORDER.

Subsection (a) requires TDH to set a hearing, give notice and designate a
hearings examiner, as specified. 

 Subsection (b) requires the hearings examiner to make judgements as
specified and promptly issue a decision proposal to TDH.   

Subsection (c) allows TDH to find, by order, that a violation has or has
not occurred as specified. 

Subsection (d) stipulates that the notice of the order must include a
statement of the person's right to judicial review. 

Sec. 485.055.  COMPLIANCE WITH ORDER; RIGHT TO JUDICIAL REVIEW. 

Subsection (a) requires the person to pay the amount of the penalty; pay
the amount and file a contesting petition as specified; or file a petition
and without paying the penalty as specified, not later than 30 days after
the order becomes final.   

Subsection (b) allows the person who opts to file a contest without paying
the penalty, to stay enforcement of the penalty as specified. 

Subsection (c) allows TDH to contest a person's affidavit about financial
inability as specified. Requires the court to hold a hearing on the
alleged facts as soon as practicable and stay the enforcement of the
penalty if it is found that the affidavit is true. Establishes that the
burden of proof is on the person filing the affidavit as specified. 

Subsection (d) allows TDH to refer the matter to the attorney general for
collection as specified.  

Sec. 485.056.  JUDICIAL REVIEW; FINAL DISPOSITION. 

Subsection (a) establishes that judicial review is instituted by filing a
petition as specified and is under the substantial evidence rule. 

Subsection (b) allows the court to uphold or reduce the amount of the
penalty and order the person to pay the appropriate amount, if the
occupance of the violation is sustained. Requires the court to order than
no penalty is owed if the violation is not sustained.  

Subsection (c) requires the court to proceed under this subsection when
the judgment becomes final . Requires the court to order TDH to remit the
appropriate amount plus interest as specified, if the person paid the
penalty amount and then it was reduced or not upheld. Requires the court
to order a bond release as specified, if a bond was given and the amount
of the penalty is not upheld. Requires the court to order release of the
bond after the person pays the amount, if a bond was given and the penalty
amount then reduced. 

Subsection (d) requires that a penalty collected be deposited in the state
treasury to the credit of the inhalant abuse prevention account.  

Sec.  485.057.  RECOVERY OF COSTS.  

Subsection (a) allows TDH to order a person to make a payment to TDH in an
amount necessary to recover reasonable costs and expenses as specified.
Requires the person ordered under this subsection, to remit not later than
30 days as specified. Allows TDH to refer the matter to the attorney
general for collection.  

Subsection (b) allows the attorney general to recover reasonable costs and
expenses incurred as specified.   

 SECTION 2.  Repeals Chapter 484, Health and Safety Code.

SECTION 3.  Establishes that this Act applies only to an offense or
violation committed on or after the effective date, an offense committed
prior to the effective date is subject to existing law, which is continued
in effect for that purpose. Establishes that an offense or violation is
considered prior to the effective date if any element of it occurred
before that date. Establishes that a permit issued under prior law remains
in effect until the permit expires, is revoked or suspended by the TDH, or
is surrendered by the permit holder. 

SECTION 4. This Act is effective September 1, 1997.

SECTION 5.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

In SECTION 1 (Chapter 485, Health and Safety Code) CSHB 1786 adds language
to include "aerosol paint" as an abusable volatile chemical, reinserts its
definition, and removes the definition of person in Subchapter A, Sec.
485.001 of  of the original bill. In Subchapter B, Sec. 485.0135, the fee
that the Board of Health can set for a permit to sell abusable volatile
chemicals is limited to a maximum of $50 in the substitute bill. A defense
to criminal prosecution for selling volatile chemicals to a minor is added
to Subchapter C, Sec. 485.033(b) in CSHB 1786. 
An additional factor regarding the person's efforts to establish or
implement policies or procedures to ensure compliance is added to the
required court considerations in determining the amount of a penalty in
the substitute bill's Subchapter D, Secs. 485.051(c) and 485.052(c).     
CSHB 1786 removes the words "in writing" from the provision in Subchapter
D, Sec. 485.053(b) regarding the person accepting TDH's determination and
adds language to Sec. 485.053(c) concerning TDH's required issuance of an
affirming order to include " if the person fails to respond timely to the
notice." Additionally, CSHB omits language from the original bill in Sec.
485.054 which would have required TDH to set a hearing if the person fails
to respond timely to the notice.