BG S.B. 1284 75(R)BILL ANALYSIS PUBLIC HEALTH S.B. 1284 By: Gallegos (Chavez) 5-8-97 Committee Report (Unamended) BACKGROUND Currently, Texans who purchase reconditioned mattresses and certain upholstered furniture risk firerelated injuries, property losses, and death caused by mattresses stuffed with flammable materials. The number of residential fires in Texas caused by bedding and upholstered furniture is three times the national average. The Texas Department of Health has also received numerous reports of filthy, blood-soaked, and insect-filled materials being used in renovated mattresses. PURPOSE S.B. 1284 authorizes the Texas Department of Health to adopt and enforce certain rules relating to renovated bedding and upholstered furniture. This bill also sets forth criminal and administrative penalties for noncompliance with certain requirements under this Act. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants additional rulemaking authority to the Texas Department of Health (TDH) in SECTION 3 [Sec. 345.0055(a), Health and Safety Code, with that rulemaking being referenced in Subsection (b)] and again in SECTION 4 [Sec. 345.022(f) and Sec. 345.027, Health and Safety Code]. Rulemaking authority is expressly granted to the Texas Board of Health (board) in SECTION 5 [Sec. 345.041(c), Health and Safety Code] and in SECTION 7 [Sec. 345.0435(a), Health and Safety Code, with that rulemaking being referenced in Subsection (b)]. In SECTION 4: there is a reference which adds to existing TDH rulemaking [Sec. 345.024(b), Health and Safety Code] and a reference to additional TDH rulemaking [Sec. 345.0263, Health and Safety Code]. TDH rulemaking is again referenced in SECTION 4 [Sec. 345.028, Health and Safety Code]. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 345.001, Health and Safety Code, by amending Subdivisions (7), (8), (9), and (10), and adding Subdivision (11), to define "recycled material" and make conforming changes. SECTION 2. Amends Section 345.003, Health and Safety Code, to remove the words "from the sale of stamps, and other money" to clarify that money, and not just the money previously specified that is collected in the administration of this chapter is payable to the TDH. SECTION 3. Amends Chapter 345A, Health and Safety Code, by adding Sections 345.0055 and 345.007, as follows: Sec. 345.0055. MATERIAL USED IN BEDDING. Allows TDH to adopt rules relating to material used in new or renovated bedding, including rules requiring the use of burn-resistant material, and prohibiting or restricting the use of secondhand or recycled material. Establishes that adopted rules must be consistent with applicable federal law or regulation. Sec. 345.007. ADVISORY COMMISSION. Allows the board to appoint an advisory commission composed of consumer and industry representatives to assist in implementing this chapter. SECTION 4. Amends Chapter 345B, Health and Safety Code, as follows: SUBCHAPTER B. New heading: LABELS Sec. 345.021. Revised heading: LABEL REQUIRED. Replaces the word "tag" with "label. Adds language to clarify that the label needs to be attached by the approved method and at the location as specified. Removes words which required that the cloth be "white." Adds text to allow TDH to authorize or require the use of a language in addition to English on the label or on a separate label. Makes conforming and nonsubstantive changes. Sec. 345.022. LABELS ON BEDDING MADE OF NEW OR SECONDHAND MATERIAL. Replaces references to the word "tag" with "label." Omits the word "black" in regards to ink color. Adds the specification that the kind or grade of material must be stated "in descending order." Adds the words "or recycled" in reference to lettering that states "Secondhand or Recycled Material." Adds Subsection (f) to allow TDH to adopt rules that rules that require that the label state conformity with burn resistant materials requirements or identify any applied chemical treatments, and that exempt a custom upholstery business as specified. Sec. 345.023. Makes a conforming change. Sec. 345.024. Adds the words " or recycled" in reference to secondhand bedding material. Adds "reclining chair" to items that are required to be germicidally treated and cleaned only when required by department rules. Adds to the prohibition against the use in the manufacture, repair, or renovation of bedding material that has not been cleaned and germicidal treated by to apply not only to filthy, oily but also "stained" material and replaces the word "bacteria" with "organisms," rather than bacteria. Revises the provision regarding the lot number and tag number of an article that was germicidally treated, to specify that the date of the treatment be plainly printed as specified. Makes conforming changes. Sec. 345.025. Revised heading: LABEL REQUIRED ON FILLING MATERIAL. Requires a processor to identify each item of material to be used for filling bedding by affixing to the filling material a label as required by TDH rules. Deletes text requiring the processor to identify certain shipments and deliveries of processed filling materials. Sec. 345.026. REMOVAL, DEFACEMENT, OR ALTERATION. Makes conforming changes. Sec. 345.027. New heading: COLOR OF LABELING AND LETTERING. Allows TDH to adopt rules governing the color of label required under this subchapter and the color of the lettering on the label. Deletes the existing heading and provision about defacement of tag. Sec. 345.028. APPLICATION TO RECYCLED MATERIAL. Added to establish that this subchapter applies to bedding manufactured, repaired, or renovated in whole or in part from recycled materials only to the extent required by TDH rules. SECTION 5. Amends Section 345.041, Health and Safety Code, by adding Subsection (c), to allow the board, by rule, to exempt from the permit requirement of this section a custom upholstery business that does not repair or renovate bedding for resale. SECTION 6. Amends Section 345.043, Health and Safety Code, to require the board to set the fees for an initial permit issued under this chapter and for renewal of a permit issued under this chapter in amounts reasonable and necessary to defray certain costs. Removes reference to fee being $15. Requires a collected fee under to be deposited to a special account in the state treasury. Authorizes money in the account to be appropriated only to TDH to administer and enforce this chapter. Deletes a provision stating that the renewal fee for a permit is $10. SECTION 7. Amends Chapter 345C, Health and Safety Code, by adding Sections 345.0435 and 345.0436, as follows: Sec. 345.0435. ADOPTION OF RULES; MINIMUM STANDARDS. Requires the board to adopt certain rules necessary to implement this subchapter. Requires the rules to contain minimum standards to protect the health and safety of the public. Sec. 345.0436. SUBMISSION OF PRODUCT TEST RESULTS OR SAMPLE. Allows TDH to require the applicant or permit holder to submit certain items as specified, in conjunction with the issuance or renewal of a permit. SECTION 8. Amends Section 345.087, Health and Safety Code, as follows: Sec. 345.087. Revised heading: PROHIBITED ACTS; CRIMINAL OFFENSE. Specifies actions which if committed are consider an offense under this section and establishes that such an offense is a Class A misdemeanor. Omits language concerning it being punishable by a fine of not less than $50 or more that $200. Provides that it is not necessary to prove intent, knowledge, recklessness, or criminal negligence in a criminal proceeding as specified. Establishes that it is a defense to prosecution under Subsection (a)(2) or (3) that the person acted in good faith and was not the person who manufactured, repaired, or renovated the article. Provides that this subsection does not apply unless the person furnishes certain information requested by TDH. SECTION 9. Repeals Chapter 345D, Health and Safety Code. Redesignates Chapter 345E, Health and Safety Code is as Chapter 345D, and amends the heading as follows: SUBCHAPTER D. GENERAL ENFORCEMENT; CRIMINAL OFFENSE SECTION 10. Amends Chapter 345, Health and Safety Code, by adding new Subchapters E and F, as follows: SUBCHAPTER E. ADMINISTRATIVE OR CIVIL PENALTY; INJUNCTION Sec. 345.101. ADMINISTRATIVE PENALTY. Allows TDH to assess an administrative penalty against a person who violates this chapter or a rule adopted under this chapter. Prohibits the penalty from exceeding $25,000 for each violation. Provides that each day of a continuing violation constitutes a separate violation. Requires TDH to consider certain factors when determining the amount of an administrative penalty assessed under this section. Provides that all proceedings for the assessment of an administrative penalty under this chapter are subject to Chapter 2001, Government Code. Sec. 345.102. NOTICE; REQUEST FOR HEARING. Requires TDH to give written notice to the person alleged to have committed the violation as specified. Authorizes the person notified to accept the determination made, including the proposed penalty, or to make a written request for a hearing as specified. Requires the commissioner of the advisory commission (commissioner) or the commissioner's designee to issue an order approving the determination and ordering that the person pay the proposed penalty. Sec. 345.103. HEARING; ORDER. Requires TDH to perform certain functions if the person notified requests a hearing. Requires the hearings examiner to make findings of fact and conclusions of law and to promptly issue to the commissioner or designee a proposal for decision and a recommendation as to the penalty amount as specified. Authorizes the commissioner or the commissioner's designee, by order, to find that a violation has occurred and to assess a penalty, or to find that no violation has occurred. Sec. 345.104. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. Requires TDH to give notice of the order under Section 345.103(c) to the person alleged to have committed the violation. Requires the notice to include certain information. Requires the person to perform certain functions not later than the 30th day after the date on which the decision is final as provided by Chapter 2001, Government Code. Authorizes a person who acts under Subsection (b)(3) within the 30-day period to complete certain tasks. Authorizes the TDH to file with the court, within a certain period, a contest to an affidavit received under Subsection (c)(2). Sets forth the procedures for fulfilling the requirements of an affidavit under this section. Sets forth conditions to be enacted if a person does not pay the penalty and the penalty is not stayed under this section. Sets forth the intended meaning of judicial review of the order under this section. Sets forth criteria for the enforcement and payment of a penalty under this section. Sec. 345.105. PENALTY DEPOSITED TO STATE TREASURY. Requires an administrative penalty under this subchapter to be deposited in the state treasury to the credit of the general revenue fund. Sec. 345.106. INJUNCTION. Authorizes the attorney general to petition the district court for a temporary restraining order to restrain a continuing violation of this chapter under certain conditions determined by the commissioner. Requires a district court in certain circumstances to grant an injunctive relief warranted by the facts. Provides that venue for a suit brought under this section is in the county in which the violation or threat of violation is alleged to have occurred or in Travis County. Sec. 345.107. CIVIL PENALTY. Requires the attorney general to institute an action in district court to collect a civil penalty at the request of the commissioner. Prohibits the penalty amount to exceed $25,000 a day for each violation as specified. Requires the court to consider factors as specified in determining the penalty amount. Provides that venue for a suit brought under this section is in the county in which the violation occurred or in Travis County. Sec. 345.108. RECOVERY OF COSTS. Authorizes TDH to assess reasonable expenses and costs against a person in an administrative hearing under certain conditions. Requires a person to pay expenses and costs assessed under this subsection by a certain date. Authorizes the TDH to refer the matter to the attorney general for collection of the expenses and costs. Authorizes the attorney general to recover, on behalf of the attorney general and the TDH, reasonable expenses and costs under certain conditions. Defines "reasonable expenses and costs." SUBCHAPTER F. DETENTION OR EMBARGO OF BEDDING Sec. 345.131. DEFINITIONS. Defines "authorized agent" and "detained or embargoed bedding." Sec. 345.132. DETAINED OR EMBARGOED BEDDING. Allows the commissioner of public health or an authorized agent to detain or embargo bedding as specified. Requires the commissioner or authorized agent to affix such bedding a tag or other appropriate marking that gives notice as specified. Provides that the the tag or marking must warn all persons not to use the bedding, remove the bedding from the premises or dispose of the bedding as specified until permission is given by the commissioner, authorized agent, or the court. Prohibits the use, removal, sale, or disposal of detained or embargoed bedding without permission as specified. Requires the commissioner or authorized agent to remove the tag or marking if it is found that the bedding is not in violation as specified. Sec. 345.133. REMOVAL ORDER FOR DETAINED OR EMBARGOED BEDDING. Authorizes the commissioner or an authorized agent to order the transfer of the bedding to one or more secure storage areas to prevent unauthorized use, removal, or disposal under certain conditions. Authorizes the commissioner or an authorized agent to provide for the transfer of the bedding if the claimant of the bedding or the claimant's agent does not carry out the transfer order in a timely manner. Requires the claimant of the bedding or the claimant's agent to pay costs as specified. Authorizes the commissioner to request the attorney general to bring an action in the district court in Travis County to recover the costs, attorney's fees, court costs, and interest from the time the expense was incurred through the date the TDH was reimbursed. Sec. 345.134. CONDEMNATION. Allows an action for condemnation of bedding to be brought before a court in whose jurisdiction the bedding is located, detained, or embargoed, if the bedding violated this chapter or a rule or standard adopted under this chapter. Sec. 345.135. RECALL ORDERS. Authorizes the commissioner to order bedding to be recalled for commerce under certain conditions. Sets forth the criteria and process for a recall order under this section. Requires the claimant of the bedding to pay costs as specified. Allows the commissioner to provide for the recall if the claimant or claimant's agent fails or refuses to carry out the recall order in a timely manner. Requires that the costs of the recall be assessed as specified. Authorizes the commissioner to request the attorney general bring action to recover the costs as specified. Sec. 345.136. DESTRUCTION OF BEDDING. Requires a court to order the destruction of detained or embargoed bedding under certain conditions. Requires an authorized agent to supervise the destruction of the bedding. Requires the claimant of the article to pay the cost of the destruction of the bedding. Requires the court to tax against the claimant of the bedding or the claimant's agent all court costs and fees and storage and other proper expenses. Sec. 345.137. CORRECTION BY PROPER LABELING OR PROCESSING. Allows a court to order the delivery of detained or embargoed bedding that violates this chapter or a rule or standard adopted under this chapter for labeling or processing as specified if the decree has been entered as specified, the claimant has paid as specified, the violation can be corrected, and a bond has been executed as specified. Requires the claimant to pay the costs of the supervision of the labeling or processing. Requires the court to order that the bedding be returned to the claimant and the bond discharged on the representation by the commissioner or an authorized agent that the article is no longer in violation and that the expenses have been paid. SECTION 11. Establishes that this Act takes effect September 1, 1997. SECTION 12. Makes application of SECTION 7 of this Act only to the issuance or renewal of a permit as specified on or after January 1, 1998. SECTION 13. Makes application of SECTION 8 of this Act only to the punishment for an offense committed on or after the effective date of this Act. Provides that an offense is considered committed before the effective date if any element of the offense occurs before the effective date. SECTION 14. Makes application of SECTION 10 of this Act only to assessment of a penalty for conduct occurring on or after the effective date of this Act. SECTION 15. Emergency clause.