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.