By Maxey                                        H.B. No. 1072

      75R2620 MWV-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the regulation of retail stores.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Chapter 12, Agriculture Code, is amended by

 1-5     adding Section 12.0325 to read as follows:

 1-6           Sec. 12.0325.  TEXAS RETAIL FOOD STORE REGULATORY COMMITTEE.

 1-7     (a)  The Texas Retail Food Store Regulatory Committee is created as

 1-8     an interagency committee to coordinate state agency regulation of

 1-9     retail food stores.

1-10           (b)  The department is designated as the lead agency for the

1-11     committee and shall administer the activities of the committee.

1-12           (c)  The committee is composed of the executive director or a

1-13     representative of:

1-14                 (1)  the Department of Agriculture;

1-15                 (2)  the Texas Department of Commerce;

1-16                 (3)  the Texas Department of Health;

1-17                 (4)  the Parks and Wildlife Department;

1-18                 (5)  the comptroller;

1-19                 (6)  the Texas Alcoholic Beverage Commission;

1-20                 (7)  the Texas State Board of Pharmacy; and

1-21                 (8)  the Texas Lottery Commission.

1-22           (d)  The committee may invite representatives of other

1-23     agencies, consumer groups, or business groups to participate in the

1-24     activities of the committee.

 2-1           (e)  The committee shall:

 2-2                 (1)  elect a presiding officer and an assistant

 2-3     presiding officer;

 2-4                 (2)  study the regulation of retail food stores; and

 2-5                 (3)  report to the legislature regarding the

 2-6     committee's study of the regulation of retail food stores.

 2-7           (f)  The committee shall consider and include in the report

 2-8     required by Subsection (e)(3) the committee's recommendations

 2-9     concerning:

2-10                 (1)  state agencies' procedures for:

2-11                       (A)  issuing original and renewal licenses and

2-12     permits; and

2-13                       (B)  collecting fees;

2-14                 (2)  opportunities to consolidate state agencies'

2-15     licensing and fee collection activities;

2-16                 (3)  requiring that an inspector of any state agency

2-17     that inspects an activity of a retail food store briefly screen all

2-18     activities of the store at the time that the inspector conducts a

2-19     thorough inspection of the specific activity of that store;

2-20                 (4)  reducing the cost of inspections by use of a

2-21     vendor certification program;

2-22                 (5)  integrating uniform product code price scanner

2-23     inspection into the sales tax audit process;

2-24                 (6)  establishing a consolidated retail food store

2-25     licensing and inspection program to administer all licenses related

2-26     to retail food stores and to conduct all state inspections of those

2-27     stores;

 3-1                 (7)  reducing paperwork;

 3-2                 (8)  making state agency inspections more convenient

 3-3     for a retail food store;

 3-4                 (9)  reducing any amount of time that scales and other

 3-5     equipment are out of service;

 3-6                 (10)  continuing adequate consumer protection;

 3-7                 (11)  reducing government regulatory expenditures;

 3-8                 (12)  creating private sector employment opportunities;

 3-9     and

3-10                 (13)  any other regulatory matter pertaining to a

3-11     retail food store that a majority of the members of the committee

3-12     consider advisable.

3-13           (g)  This section expires June 1, 1999.

3-14           SECTION 2.  Section 13.002, Agriculture Code, is amended by

3-15     amending Subsection (a) and adding Subsection (c) to read as

3-16     follows:

3-17           (a)  Except as provided by Subsection (c), the [The]

3-18     department shall enforce the provisions of this chapter and shall

3-19     supervise all weights and measures sold or offered for sale in this

3-20     state. The department may purchase apparatus as necessary for the

3-21     administration of this chapter.

3-22           (c)  The Texas State Board of Pharmacy shall enforce the

3-23     provisions of this chapter relating to the compounding of drugs in

3-24     pharmacies and shall supervise all weights and measures sold,

3-25     offered for sale, or used in this state for the compounding of

3-26     drugs in pharmacies.

3-27           SECTION 3.  Section 132.003(a), Agriculture Code, is amended

 4-1     to read as follows:

 4-2           (a)  Except as provided by Subchapter G, the [The] department

 4-3     shall administer this chapter and adopt and enforce necessary

 4-4     rules.

 4-5           SECTION 4.  Section 132.005(b), Agriculture Code, is amended

 4-6     to read as follows:

 4-7           (b)  The department may enter during ordinary business hours

 4-8     [a retail place of business where eggs are offered for sale to the

 4-9     ultimate consumer or] a distribution center where eggs are held

4-10     after being received from a packing plant and take for inspection

4-11     representative samples of eggs and containers to determine if this

4-12     chapter has been violated.

4-13           SECTION 5.  Section 132.044(a), Agriculture Code, is amended

4-14     to read as follows:

4-15           (a)  A container in which eggs for human consumption are

4-16     offered for [retail or] wholesale must be legibly labeled with a

4-17     statement showing:

4-18                 (1)  the size and grade of the eggs in the container;

4-19                 (2)  the address, including the city and state, and the

4-20     license number of the person who graded and sized the eggs; and

4-21                 (3)  if the eggs were sized and graded at an address

4-22     other than that provided under Subdivision (2) of this subsection:

4-23                       (A)  the address at which the eggs were sized and

4-24     graded; or

4-25                       (B)  a department approved code.

4-26           SECTION 6.  Chapter 132, Agriculture Code, is amended by

4-27     adding Subchapter G to read as follows:

 5-1                      SUBCHAPTER G. RETAIL SALE OF EGGS

 5-2           Sec. 132.101.  DEFINITION.  In this subchapter, "department"

 5-3     means the Texas Department of Health.

 5-4           Sec. 132.102.  POWERS AND DUTIES.  The Texas Department of

 5-5     Health by rule shall require that eggs sold by a person who holds a

 5-6     permit issued under Chapter 437, Health and Safety Code, are:

 5-7                 (1)  safe for human consumption; and

 5-8                 (2)  properly labeled.

 5-9           Sec. 132.103.  SAMPLES.  (a)  The department by rule shall

5-10     prescribe methods of selecting samples from lots and containers of

5-11     eggs that are:

5-12                 (1)  reasonably calculated to ensure a fair

5-13     representation of each lot or container sampled; and

5-14                 (2)  similar to methods prescribed for sampling by the

5-15     United States Department of Agriculture.

5-16           (b)  An authorized agent or employee of the department may:

5-17                 (1)  enter during ordinary business hours a retail

5-18     place of business where eggs are offered for sale by a retail food

5-19     store; and

5-20                 (2)  take for inspection a representative sample of

5-21     eggs or a container of eggs to determine if this subchapter or a

5-22     rule adopted by the department under this chapter has been

5-23     violated.

5-24           (c)  The department shall compensate a retail food store for

5-25     the actual cost of eggs taken as a sample under Subsection (b).

5-26           (d)  The analysis by the department of a sample of eggs taken

5-27     under this section is prima facie evidence in any court of this

 6-1     state of the condition of the entire lot from which the sample is

 6-2     taken.

 6-3           Sec. 132.104.  LABELING.  (a)  A container in which eggs for

 6-4     human consumption are offered for sale by a retail food store must

 6-5     be legibly labeled with a statement of:

 6-6                 (1)  the size and grade of the eggs in the container;

 6-7                 (2)  the address, including the city and state, and the

 6-8     license number of the person who graded and sized the eggs; and

 6-9                 (3)  if the eggs were sized and graded at an address

6-10     other than that provided under Subdivision (2) of this subsection:

6-11                       (A)  the address at which the eggs were sized and

6-12     graded; or

6-13                       (B)  an approved code.

6-14           (b)  Any statement on the egg container must comply with

6-15     rules of the department.

6-16           (c)  A container required to be labeled under Subsection (a)

6-17     may not be deceptively labeled, advertised, or invoiced.

6-18           (d)  If the department determines that an emergency exists

6-19     that prevents or hinders labeling as required by this section, the

6-20     department may allow eggs to be labeled in another manner that

6-21     includes the address and license number of a license holder and the

6-22     size and grade of the eggs.

6-23           (e)  The department by rule may provide for the repacking,

6-24     downgrading, or both repacking and downgrading of eggs by a

6-25     retailer.

6-26           (f)  Eggs offered for sale that are not in a carton must be

6-27     in a container that contains each item of information required by

 7-1     this section in legible letters at least one inch high on a sign

 7-2     attached to the container.

 7-3           (g)  This section does not apply to a retail food store's

 7-4     offering for sale of ungraded eggs if:

 7-5                 (1)  the eggs are clearly labeled as being ungraded;

 7-6     and

 7-7                 (2)  the retail food store normally sells fewer than

 7-8     120 dozen eggs a week.

 7-9           Sec. 132.105.  STOP-SALE ORDER.  (a)  If the department

7-10     determines that eggs that are offered for sale are not in

7-11     compliance with this subchapter or an applicable rule of the

7-12     department, the department shall issue and enforce an order to stop

7-13     the sale of the eggs.

7-14           (b)  A person named in the stop-sale order may not offer eggs

7-15     for sale until the department determines that the eggs being

7-16     offered are in compliance with this subchapter and each applicable

7-17     rule of the department.

7-18           (c)  A person named in the stop-sale order may submit eggs

7-19     for inspection to an authorized United States Department of

7-20     Agriculture inspector.  If on that inspection the eggs fail to meet

7-21     the specifications of any grade with which they are labeled, the

7-22     person must remark or repackage the eggs to meet the specifications

7-23     for their actual grades before offering to sell the eggs.

7-24           Sec. 132.106.  LICENSES.  (a)  The department shall revoke,

7-25     modify, or suspend a license issued under Chapter 437, Health and

7-26     Safety Code, assess an administrative penalty, place on probation a

7-27     person whose license has been suspended, or reprimand the holder of

 8-1     a license for a violation of this subchapter or a rule adopted by

 8-2     the department under this subchapter.

 8-3           (b)  If a license suspension is probated, the department may

 8-4     require the holder to report regularly to the department on any

 8-5     matter that is the basis of the probation.

 8-6           SECTION 7.  Subchapter A, Chapter 47, Parks and Wildlife

 8-7     Code, is amended by adding Section 47.0113 to read as follows:

 8-8           Sec. 47.0113.  MEMORANDUM OF AGREEMENT.  (a)  The department

 8-9     shall initiate negotiations for and enter into a memorandum of

8-10     agreement with the Texas Department of Health:

8-11                 (1)  to consolidate the application and inspection

8-12     process for retail fish dealers and retail food vendors; and

8-13                 (2)  for the regulation of the sale of raw fish.

8-14           (b)  Before a memorandum of agreement between the department

8-15     and the Texas Department of Health may take effect, the memorandum

8-16     must be adopted by the governing body of each department.

8-17           (c)  After the department and the Texas Department of Health

8-18     have adopted a memorandum of agreement, the department shall

8-19     publish the memorandum of agreement in the Texas Register.

8-20           (d)  The department and the Texas Department of Health shall

8-21     agree, subject to conditions that will improve the efficiency of

8-22     each department's operations, that:

8-23                 (1)  the Texas Department of Health shall:

8-24                       (A)  collect information to identify each retail

8-25     food store that has a fish market as a part of a food retailing

8-26     business and provide that information to the department;

8-27                       (B)  perform routine inspections regarding each

 9-1     source of raw fish; and

 9-2                       (C)  refer any potential violation of a wildlife

 9-3     protection program of this state to the department for enforcement;

 9-4     and

 9-5                 (2)  the department shall perform special inspections

 9-6     of retail fish dealers that the department considers necessary.

 9-7           SECTION 8.  Section 47.031(a), Parks and Wildlife Code, is

 9-8     amended to read as follows:

 9-9           (a)  The commission by rule may provide that licenses and

9-10     permits issued under this chapter expire on various dates during

9-11     the year and may provide for a renewal period of less than 12

9-12     months.  If the commission adopts rules under this subsection, the

9-13     department shall notify each holder of a license or permit of the

9-14     impending expiration of the person's license or permit.  [All

9-15     licenses and permits issued under the authority of Chapter 47 of

9-16     this code are valid only during the yearly period for which they

9-17     are issued without regard to the date on which the licenses are

9-18     acquired.  Each yearly period begins on September 1 or another date

9-19     set by the commission and extends through August 31 of the next

9-20     year or another date set by the commission.]  The commission by

9-21     rule may set the amount of a license fee for a license issued

9-22     during a transition period at an amount lower than prescribed in

9-23     this chapter and provide for a license term for a transition period

9-24     that is shorter or longer than a year.

9-25           SECTION 9.  Section 2, Chapter 1033, Acts of the 71st

9-26     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

9-27     Civil Statutes), is amended to read as follows:

 10-1          Sec. 2.  TESTING.  In order to determine compliance with the

 10-2    standards and for the enforcement of rules adopted under Sections

 10-3    3, 4, and 5 of this Act, the commissioner of agriculture

 10-4    [comptroller of public accounts] or an authorized representative of

 10-5    the commissioner of agriculture [comptroller], any law enforcement

 10-6    officer at the direction of a prosecuting attorney, or the attorney

 10-7    general may test any motor fuel sold in this state, with or without

 10-8    a complaint about the fuel.

 10-9          SECTION 10.  Sections 4(c), (d), and (e), Chapter 1033, Acts

10-10    of the 71st Legislature, Regular Session, 1989 (Article 8614,

10-11    Vernon's Texas Civil Statutes), are amended to read as follows:

10-12          (c)  The commissioner of agriculture [comptroller] by rule

10-13    may prescribe the form of the statement required by Subsection (a)

10-14    of this section.

10-15          (d)  The signs required to be posted by a motor fuel dealer

10-16    under Section 3 of this Act and delivered to a motor fuel dealer

10-17    under this section shall be obtained from the commissioner of

10-18    agriculture [comptroller].

10-19          (e)  If the commissioner of agriculture [comptroller]

10-20    determines that certain types of motor fuel, such as diesel or

10-21    liquefied petroleum gas, are not sold in this state as mixtures

10-22    with alcohol in sufficient quantities to warrant regulation of

10-23    those deliveries under this Act, the commissioner of agriculture

10-24    [comptroller] may limit the application of Section 3 of this Act

10-25    and this section to motor fuels sold in sufficient quantity to

10-26    warrant regulation.

10-27          SECTION 11.  Section 5, Chapter 1033, Acts of the 71st

 11-1    Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

 11-2    Civil Statutes), is amended to read as follows:

 11-3          Sec. 5. DEALER AND DELIVERY DOCUMENTS.  (a)  Each motor fuel

 11-4    dealer in this state shall keep for four years a copy of each

 11-5    manifest, bill of sale, bill of lading, or any other document

 11-6    required to be delivered to the dealer by Section 4 of this Act.

 11-7    During the first 60 days following delivery of a fuel mixture

 11-8    covered by this Act, the dealer shall keep at the station or retail

 11-9    outlet where the motor fuel was delivered a copy of each manifest,

11-10    bill of sale, bill of lading, or any other document required to be

11-11    delivered to the dealer by Section 4 of this Act.  Each

11-12    distributor, supplier, wholesaler, or jobber of motor fuel shall

11-13    keep for four years at the principal place of business a copy of

11-14    each manifest, bill of sale, bill of lading, or any other document

11-15    required to be delivered to the dealer by Section 4 of this Act.

11-16    The documents are subject to inspection by the commissioner of

11-17    agriculture [comptroller] or an authorized representative of the

11-18    commissioner of agriculture [comptroller], any law  enforcement

11-19    officer, or the attorney general.

11-20          (b)  The commissioner of agriculture [comptroller] by rule

11-21    may prescribe the manner of filing documents required to be kept

11-22    under Subsection (a) of this section, and the time, place, and

11-23    manner of inspection of the documents.

11-24          SECTION 12.  Sections 8(a), (b), and (e), Chapter 1033, Acts

11-25    of the 71st Legislature, Regular Session, 1989 (Article 8614,

11-26    Vernon's Texas Civil Statutes), are amended to read as follows:

11-27          (a)  A person commits an offense if the person intentionally

 12-1    or knowingly violates Section 3,  4, or 5 of this Act or any rule

 12-2    of the commissioner of agriculture [comptroller] prescribed to

 12-3    enforce or implement those sections of this Act.

 12-4          (b)  A person commits an offense if the person intentionally

 12-5    or knowingly:

 12-6                (1)  refuses to permit a person authorized by Section 2

 12-7    of this Act to test any motor fuel sold or held for sale in this

 12-8    state;

 12-9                (2)  refuses to permit inspection of any document

12-10    required to be kept or delivered by this Act upon request of a

12-11    person authorized to inspect such documents by Section 5 of this

12-12    Act; or

12-13                (3)  mutilates, destroys, secretes, forges, or

12-14    falsifies any document, record, report, or sign required to be

12-15    delivered, kept, filed, or posted by this Act or any rule

12-16    prescribed by the commissioner of agriculture [comptroller] for the

12-17    enforcement of this Act.

12-18          (e)  A user, the commissioner of agriculture, [comptroller

12-19    or] the [comptroller's] authorized representative of the

12-20    commissioner of  agriculture, any law enforcement officer, or the

12-21    attorney general may file a complaint under this section.

12-22          SECTION 13.  Sections 9 and 10, Chapter  1033, Acts of the

12-23    71st Legislature, Regular Session, 1989 (Article 8614, Vernon's

12-24    Texas Civil Statutes), are amended to read as follows:

12-25          Sec. 9.  RULES AND FEES.  (a)  The commissioner of

12-26    agriculture [comptroller] may adopt  rules not inconsistent with

12-27    this Act for the regulation of the sale of motor fuels containing

 13-1    ethanol and methanol.

 13-2          (b)  The commissioner of agriculture [comptroller] by rule

 13-3    may impose fees for testing, inspection, statement or record forms,

 13-4    sale of signs, or the performance of other services provided in the

 13-5    administration of this Act.

 13-6          (c)  In addition to the fees authorized by Subsection (b) of

 13-7    this section, the commissioner of agriculture [comptroller] by rule

 13-8    may impose a fee to be collected on a periodic basis determined by

 13-9    the commissioner of agriculture [comptroller] from each

13-10    distributor, supplier, wholesaler, and jobber who deals in a motor

13-11    fuel, without regard to whether the motor fuel is subject to

13-12    regulation under this Act.  The commissioner of agriculture

13-13    [comptroller] by rule shall prescribe the form for reporting and

13-14    remitting the fees imposed by and under this section.

13-15          (d)  The fees and penalties imposed by this Act or by a rule

13-16    of the commissioner of agriculture [comptroller] made pursuant to

13-17    this Act shall be subject to the provisions of Chapter 111 and

13-18    Sections 153.006,  153.007, and  153.401, Tax Code, except to the

13-19    extent those sections are in conflict with this Act.

13-20          (e)  The total amount of the fees collected annually under

13-21    this Act may not exceed the lesser of:

13-22                (1)  the costs of administering and enforcing the

13-23    provisions of this Act; or

13-24                (2)  $500,000.

13-25          (f)  The fees collected under this section may be used only:

13-26                (1)  by the comptroller to defray the cost of

13-27    collecting fees and penalties imposed by this Act; or

 14-1                (2)  by the commissioner of agriculture for the

 14-2    administration and enforcement of this Act [by the comptroller and

 14-3    shall be deposited in the Comptroller's Operating Fund 062].

 14-4          Sec. 10.  CONTRACTING FOR ENFORCEMENT.  The commissioner of

 14-5    agriculture [comptroller] may contract for the enforcement of this

 14-6    Act after due  notice.

 14-7          SECTION 14.  (a)  Any rule adopted by the comptroller

 14-8    specifically for the administration of  Chapter 1033, Acts of the

 14-9    71st Legislature, Regular Session, 1989 (Article 8614, Vernon's

14-10    Texas Civil Statutes), in effect on September 1, 1999, remains in

14-11    effect until amended or repealed by the commissioner of agriculture

14-12    under authority granted to the commissioner of agriculture by this

14-13    Act.

14-14          (b)  Any rule adopted by the commissioner of agriculture

14-15    specifically for the administration of Chapter 132, Agriculture

14-16    Code, in effect on the effective date of this Act remains in effect

14-17    until amended or repealed by the Texas Department of Health under

14-18    authority granted to the Texas Department of Health by this Act.

14-19          SECTION 15.  Sections 132.044(e) and 132.047, Agriculture

14-20    Code, are repealed.

14-21          SECTION 16.  Section 10.03, Chapter 419, Acts of the 74th

14-22    Legislature, Regular Session, 1995, is amended to read as follows:

14-23          Sec. 10.03.  TRANSITION: LICENSING.  Subchapter H, Chapter

14-24    13, Agriculture Code, [as added by this Act,] relating to

14-25    inspecting or testing of a weighing or measuring device, applies to

14-26    a person beginning September 1, 1999 [only after the Department of

14-27    Agriculture reasonably demonstrates to the Legislative Budget Board

 15-1    that the department's licensing programs for inspection and testing

 15-2    of liquefied petroleum gas meters and inspection and testing of

 15-3    ranch scales under Subchapters F and G, Chapter 13, Agriculture

 15-4    Code, respectively, will attain the performance goals established

 15-5    by the Legislative Budget Board].

 15-6          SECTION 17.  (a) This Act takes effect September 1, 1997.

 15-7          (b)  The changes in law made by Sections 9-13 of this Act

 15-8    apply only to a delivery, transfer, or sale, as applicable, of

 15-9    motor fuel that occurs on or after September 1, 1999. A delivery,

15-10    transfer, or sale of motor fuel that occurs before September 1,

15-11    1999, is governed by the law in effect immediately before the

15-12    effective date of this Act, and that law is continued in effect for

15-13    that purpose.

15-14          (c)  Before December 1, 1997, each agency named in Section

15-15    12.0325, Agriculture Code, as added by this Act, shall appoint a

15-16    representative to serve as a member of the Texas Retail Food Store

15-17    Regulatory Committee.

15-18          (d)  The Parks and Wildlife Department and the Texas

15-19    Department of Health shall enter into the memoranda of agreement

15-20    under Section 47.0113, Parks and Wildlife Code, as added by this

15-21    Act, and shall assume their responsibilities as provided by this

15-22    Act and those agreements before January 1, 1998.

15-23          (e)  The Texas Retail Food Store Regulatory Committee shall

15-24    report to the legislature under Section 12.0325, Agriculture Code,

15-25    as added by this Act, before January 1, 1999.

15-26          SECTION 18.  The importance of this legislation and the

15-27    crowded condition of the calendars in both houses create an

 16-1    emergency and an imperative public necessity that the

 16-2    constitutional rule requiring bills to be read on three several

 16-3    days in each house be suspended, and this rule is hereby suspended.