AN ACT
1-1 relating to regulation of new or renovated bedding; providing
1-2 penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 345.001, Health and Safety Code, is
1-5 amended by amending Subdivisions (7), (8), (9), and (10) and adding
1-6 Subdivision (11) to read as follows:
1-7 (7) "Recycled material" means material that:
1-8 (A) is composed of recyclable material or that
1-9 is derived from postconsumer waste or industrial waste; and
1-10 (B) may be used in place of raw or virgin
1-11 filling material in manufacturing, repairing, or renovating
1-12 bedding.
1-13 (8) "Renovate" means to restore to a former condition
1-14 or to place in a good state of repair.
1-15 (9) [(8)] "Secondhand" means previous use in any
1-16 manner.
1-17 (10) [(9)] "Sell" includes offering or exposing for
1-18 sale, including in a sale, bartering, trading, delivering,
1-19 consigning, leasing, possessing with intent to sell, or disposing
1-20 of in any commercial manner.
1-21 (11) [(10)] "Wholesaler" means a person located
1-22 outside this state who on his own account sells, distributes, or
1-23 jobs into this state to another for the purpose of resale bedding
2-1 or filling material to be used in bedding. The term does not
2-2 include an affiliate or subsidiary if the ownership and the name of
2-3 the affiliate or subsidiary are the same as the manufacturer, and
2-4 the affiliate or subsidiary is the exclusive sales outlet for the
2-5 manufacturer.
2-6 SECTION 2. Section 345.003, Health and Safety Code, is
2-7 amended to read as follows:
2-8 Sec. 345.003. PAYMENT TO DEPARTMENT. Money [from the sale
2-9 of stamps, and other money] collected in the administration of this
2-10 chapter[,] is payable to the department.
2-11 SECTION 3. Subchapter A, Chapter 345, Health and Safety
2-12 Code, is amended by adding Sections 345.0055 and 345.007 to read as
2-13 follows:
2-14 Sec. 345.0055. MATERIAL USED IN BEDDING. (a) The
2-15 department may adopt rules relating to material used in new or
2-16 renovated bedding, including rules:
2-17 (1) requiring the use of burn resistant material; and
2-18 (2) prohibiting or restricting the use of secondhand
2-19 or recycled material.
2-20 (b) Rules adopted under this section must be consistent with
2-21 any applicable federal law or regulation.
2-22 Sec. 345.007. ADVISORY COMMISSION. The Texas Board of
2-23 Health may appoint an advisory commission composed of
2-24 representatives of consumers and the bedding industry to assist the
2-25 board in implementing this chapter.
3-1 SECTION 4. Subchapter B, Chapter 345, Health and Safety
3-2 Code, is amended to read as follows:
3-3 SUBCHAPTER B. LABELS [TAGS]
3-4 Sec. 345.021. LABEL [TAG] REQUIRED. (a) A person may not
3-5 manufacture, repair, renovate, or sell bedding unless a label [tag]
3-6 that conforms to this subchapter is:
3-7 (1) securely attached to the bedding at the location
3-8 and by a method approved by the department; and
3-9 (2) [is] clearly visible.
3-10 (b) The label [tag] must be [white and] made of substantial
3-11 cloth or a substance of equal quality.
3-12 (c) The information required on a label [tag] by this
3-13 chapter must be in English. The department may authorize or
3-14 require the use of a language in addition to English on the label
3-15 or on an additional separate label.
3-16 Sec. 345.022. LABELS [TAGS] ON BEDDING MADE OF NEW OR
3-17 SECONDHAND MATERIAL. (a) A label [tag] required under this
3-18 section shall be attached at the factory in which the bedding is
3-19 manufactured.
3-20 (b) A label [tag] attached to bedding wholly manufactured
3-21 from new material must be at least six square inches and state,
3-22 plainly stamped or printed in [black] ink:
3-23 (1) "All New Material" in lettering at least
3-24 one-eighth inch high;
3-25 (2) the kind and grade of each material used in the
4-1 filling and, if more than one kind or grade of material is used,
4-2 the percentage, in descending order, by weight of each material;
4-3 and
4-4 (3) the manufacturer's permit number assigned by the
4-5 department.
4-6 (c) A label [tag] attached to bedding any part of which is
4-7 manufactured from secondhand or recycled material, other than
4-8 bedding reworked, repaired, or renovated for the owner for the
4-9 owner's personal use, must be at least 12 square inches and state,
4-10 plainly stamped or printed in [red] ink:
4-11 (1) "Secondhand or Recycled Material" in lettering at
4-12 least one-fourth inch high; and
4-13 (2) the manufacturer's permit number assigned by the
4-14 department.
4-15 (d) A label [tag] attached to bedding renovated, reworked,
4-16 or repaired for the owner for the owner's personal use and from the
4-17 owner's material that is in whole or in part secondhand must be at
4-18 least six square inches and state, plainly stamped or printed in
4-19 [black] ink:
4-20 (1) "Not for Sale, Owner's Own Material which is
4-21 Secondhand Material" in lettering at least one-eighth inch high;
4-22 (2) the name and address of the owner; and
4-23 (3) the manufacturer's permit number assigned by the
4-24 department.
4-25 (e) A term used on a label [tag] required by this section to
5-1 describe kinds and grades of material used in filling must conform
5-2 to those defined in the department's rules, and a trade or
5-3 substitute term may not be used.
5-4 (f) The department may adopt rules that:
5-5 (1) require that the label state conformity with burn
5-6 resistant material requirements or identify any chemical treatment
5-7 applied to the bedding; and
5-8 (2) exempt from the requirements of this section a
5-9 custom upholstery business that does not repair or renovate bedding
5-10 for resale.
5-11 Sec. 345.023. FALSE OR MISLEADING STATEMENT PROHIBITED. A
5-12 person may not make a false or misleading statement on a label
5-13 [tag] required by Section 345.022.
5-14 Sec. 345.024. GERMICIDAL TREATMENT OF BEDDING AND MATERIALS.
5-15 (a) Except as provided by Subsection (b), a person may not sell
5-16 secondhand bedding or bedding manufactured in whole or in part from
5-17 secondhand or recycled material unless the bedding has been
5-18 germicidally treated and cleaned by a method approved by the
5-19 department.
5-20 (b) An upholstered sofa bed, reclining chair, or studio
5-21 couch shall be germicidally treated and cleaned only when required
5-22 by department rules.
5-23 (c) A person may not use in the manufacture, repair, or
5-24 renovation of bedding a material that has not been cleaned and
5-25 germicidally treated by a process or treatment approved by the
6-1 department if the material:
6-2 (1) has been used by a person with a communicable
6-3 disease; or
6-4 (2) is filthy, oily, stained, or harbors loathsome
6-5 insects or pathogenic organisms [bacteria].
6-6 (d) A person may not sell material or bedding requiring
6-7 germicidal treatment under this section unless the person applying
6-8 the germicidal treatment securely attaches by a method approved by
6-9 the department a label [tag] that is at least 12 square inches and
6-10 contains, plainly printed in [black] ink:
6-11 (1) a statement that the article or material has been
6-12 germicidally treated by a method approved by the department;
6-13 (2) a statement of the method of germicidal treatment
6-14 applied;
6-15 (3) the date [lot number and the tag number of] the
6-16 article was germicidally treated;
6-17 (4) the name and address of the person for whom the
6-18 article was germicidally treated; and
6-19 (5) the permit number of the person applying the
6-20 germicidal treatment.
6-21 Sec. 345.025. [TAG,] LABEL[, OR MARKING] REQUIRED ON [BY
6-22 PROCESSOR OF] FILLING MATERIAL. A processor shall identify each
6-23 item of material to be used for filling bedding by affixing to the
6-24 filling material a label as required by department rules [shipment
6-25 or delivery, however contained, of processed filling material used
7-1 for filling bedding by affixing to the bedding in a conspicuous
7-2 place a tag, label, or indelible marking that clearly indicates:]
7-3 [(1) the kind of material;]
7-4 [(2) whether the material is new or secondhand; and]
7-5 [(3) the permit number of the processor].
7-6 Sec. 345.026. REMOVAL, DEFACEMENT, OR ALTERATION. A person
7-7 may not remove, deface, or alter, or cause the removal, defacing,
7-8 or alteration of, a label [tag] or a statement on the label [tag]
7-9 to defeat a provision of this chapter.
7-10 Sec. 345.027. COLOR OF LABEL AND LETTERING. The department
7-11 may adopt rules governing the color of label required under this
7-12 subchapter and the color of the lettering on the label [DEFACEMENT
7-13 OF TAG BY STAMP. A tag is considered to be defaced if a stamp
7-14 required by Subchapter D is placed over any lettering on the tag].
7-15 Sec. 345.028. APPLICATION TO RECYCLED MATERIAL.
7-16 Notwithstanding any other provision of this subchapter, this
7-17 subchapter applies to bedding manufactured, repaired, or renovated
7-18 in whole or in part from recycled materials only to the extent
7-19 required by department rules.
7-20 SECTION 5. Section 345.041, Health and Safety Code, is
7-21 amended by adding Subsection (c) to read as follows:
7-22 (c) The Texas Board of Health by rule may exempt from the
7-23 permit requirement of this section a custom upholstery business
7-24 that does not repair or renovate bedding for resale.
7-25 SECTION 6. Section 345.043, Health and Safety Code, is
8-1 amended to read as follows:
8-2 Sec. 345.043. FEES; EXPIRATION. (a) The Texas Board of
8-3 Health shall set the fees [fee] for an initial permit issued under
8-4 this chapter and for renewal of a permit issued under this chapter
8-5 in amounts reasonable and necessary to defray the cost of
8-6 administering this chapter [is $15].
8-7 (b) A fee collected under this chapter shall be deposited to
8-8 a special account in the state treasury. Money in the account may
8-9 be appropriated only to the department to administer and enforce
8-10 this chapter.
8-11 (c) A permit expires one year after the date of issuance.
8-12 [(c) The renewal fee for a permit is $10.]
8-13 SECTION 7. Subchapter C, Chapter 345, Health and Safety
8-14 Code, is amended by adding Sections 345.0435 and 345.0436 to read
8-15 as follows:
8-16 Sec. 345.0435. ADOPTION OF RULES; MINIMUM STANDARDS.
8-17 (a) The Texas Board of Health shall adopt rules necessary to
8-18 implement this subchapter, including requirements for the issuance,
8-19 renewal, denial, suspension, and revocation of a permit issued
8-20 under this subchapter.
8-21 (b) The rules must contain minimum standards to protect the
8-22 health and safety of the public.
8-23 Sec. 345.0436. SUBMISSION OF PRODUCT TEST RESULTS OR SAMPLE.
8-24 In conjunction with the issuance or renewal of a permit under this
8-25 subchapter, the department may require the applicant or permit
9-1 holder to submit:
9-2 (1) a product sample; or
9-3 (2) the results of tests conducted on the product as
9-4 required by the department.
9-5 SECTION 8. Section 345.087, Health and Safety Code, is
9-6 amended to read as follows:
9-7 Sec. 345.087. PROHIBITED ACTS; CRIMINAL OFFENSE. (a) A
9-8 person commits an offense if a person:
9-9 (1) manufactures, repairs, or renovates:
9-10 (A) bedding using material in violation of rules
9-11 adopted under Section 345.0055;
9-12 (B) bedding or batting in violation of Section
9-13 345.005;
9-14 (C) bedding using material in violation of
9-15 Section 345.024; or
9-16 (D) bedding that does not conform to the label
9-17 requirements of Subchapter B;
9-18 (2) introduces or delivers for introduction into
9-19 commerce:
9-20 (A) bedding or batting manufactured, repaired,
9-21 or renovated in violation of Section 345.005, 345.0055, or 345.024;
9-22 (B) bedding that does not conform to the label
9-23 requirements of Subchapter B; or
9-24 (C) bedding or material the sale of which is
9-25 prohibited as provided by Section 345.084;
10-1 (3) receives in commerce:
10-2 (A) bedding or batting manufactured, repaired,
10-3 or renovated in violation of Section 345.005, 345.0055, or 345.024;
10-4 (B) bedding that does not conform to the label
10-5 requirements of Subchapter B; or
10-6 (C) bedding or material the sale of which is
10-7 prohibited as provided by Section 345.084; or
10-8 (4) violates Section 345.041, 345.042, or any other
10-9 provision of this chapter or a rule adopted under this chapter.
10-10 (b) An offense under this section is a Class A misdemeanor
10-11 [punishable by a fine of not less than $50 or more than $200].
10-12 (c) In a criminal proceeding under Subsection (a)(1), (2),
10-13 or (3), it is not necessary to prove intent, knowledge,
10-14 recklessness, or criminal negligence.
10-15 (d) It is a defense to prosecution under Subsection (a)(2)
10-16 or (3) that the person acted in good faith and was not the person
10-17 who manufactured, repaired, or renovated the article. This
10-18 subsection does not apply unless the person furnishes, on request
10-19 of the department or a local health authority, the name and address
10-20 of the person from whom the article was received and copies of any
10-21 documents relating to receipt of the article.
10-22 SECTION 9. Subchapter D, Chapter 345, Health and Safety
10-23 Code, is repealed, Subchapter E, Chapter 345, Health and Safety
10-24 Code, is redesignated as Subchapter D, Chapter 345, Health and
10-25 Safety Code, and the heading of Subchapter E, Chapter 345, Health
11-1 and Safety Code, is amended to read as follows:
11-2 SUBCHAPTER D [E]. GENERAL ENFORCEMENT; CRIMINAL OFFENSE
11-3 SECTION 10. Chapter 345, Health and Safety Code, is amended
11-4 by adding new Subchapters E and F to read as follows:
11-5 SUBCHAPTER E. ADMINISTRATIVE PENALTY; INJUNCTION
11-6 Sec. 345.101. ADMINISTRATIVE PENALTY. (a) The department
11-7 may assess an administrative penalty against a person who violates
11-8 this chapter or a rule adopted under this chapter.
11-9 (b) The penalty may not exceed $25,000 for each violation.
11-10 Each day of a continuing violation constitutes a separate
11-11 violation.
11-12 (c) In determining the amount of an administrative penalty
11-13 assessed under this section, the department shall consider:
11-14 (1) the seriousness of the violation;
11-15 (2) the history of previous violations;
11-16 (3) the amount necessary to deter future violations;
11-17 (4) efforts made to correct the violation; and
11-18 (5) any other matters that justice may require.
11-19 (d) All proceedings for the assessment of an administrative
11-20 penalty under this chapter are subject to Chapter 2001, Government
11-21 Code.
11-22 Sec. 345.102. NOTICE; REQUEST FOR HEARING. (a) If, after
11-23 investigation of a possible violation and the facts surrounding
11-24 that possible violation, the department determines that a violation
11-25 has occurred, the department shall give written notice of the
12-1 violation to the person alleged to have committed the violation.
12-2 The notice must include:
12-3 (1) a brief summary of the alleged violation;
12-4 (2) a statement of the amount of the proposed penalty
12-5 based on the factors set forth in Section 345.101(c); and
12-6 (3) a statement of the person's right to a hearing on
12-7 the occurrence of the violation, the amount of the penalty, or both
12-8 the occurrence of the violation and the amount of the penalty.
12-9 (b) Not later than the 20th day after the date on which the
12-10 notice is received, the person notified may accept the
12-11 determination of the department made under this section, including
12-12 the proposed penalty, or may make a written request for a hearing
12-13 on that determination.
12-14 (c) If the person notified of the violation accepts the
12-15 determination of the department or if the person fails to respond
12-16 in a timely manner to the notice, the commissioner of public health
12-17 or the commissioner's designee shall issue an order approving the
12-18 determination and ordering that the person pay the proposed
12-19 penalty.
12-20 Sec. 345.103. HEARING; ORDER. (a) If the person notified
12-21 requests a hearing, the department shall:
12-22 (1) set a hearing;
12-23 (2) give written notice of the hearing to the person;
12-24 and
12-25 (3) designate a hearings examiner to conduct the
13-1 hearing.
13-2 (b) The hearings examiner shall make findings of fact and
13-3 conclusions of law and shall promptly issue to the commissioner of
13-4 public health or the commissioner's designee a proposal for
13-5 decision as to the occurrence of the violation and a recommendation
13-6 as to the amount of the proposed penalty if a penalty is determined
13-7 to be warranted.
13-8 (c) Based on the findings of fact and conclusions of law and
13-9 the recommendations of the hearings examiner, the commissioner of
13-10 public health or the commissioner's designee by order may find that
13-11 a violation has occurred and may assess a penalty or may find that
13-12 no violation has occurred.
13-13 Sec. 345.104. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
13-14 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
13-15 the order under Section 345.103(c) to the person alleged to have
13-16 committed the violation. The notice must include:
13-17 (1) separate statements of the findings of fact and
13-18 conclusions of law;
13-19 (2) the amount of any penalty assessed; and
13-20 (3) a statement of the right of the person to judicial
13-21 review of the order.
13-22 (b) Not later than the 30th day after the date on which the
13-23 decision is final as provided by Chapter 2001, Government Code, the
13-24 person shall:
13-25 (1) pay the penalty;
14-1 (2) pay the penalty and file a petition for judicial
14-2 review contesting the occurrence of the violation, the amount of
14-3 the penalty, or both the occurrence of the violation and the amount
14-4 of the penalty; or
14-5 (3) without paying the penalty, file a petition for
14-6 judicial review contesting the occurrence of the violation, the
14-7 amount of the penalty, or both the occurrence of the violation and
14-8 the amount of the penalty.
14-9 (c) Within the 30-day period, a person who acts under
14-10 Subsection (b)(3) may:
14-11 (1) stay enforcement of the penalty by:
14-12 (A) paying the penalty to the court for
14-13 placement in an escrow account; or
14-14 (B) giving to the court a supersedeas bond that
14-15 is approved by the court for the amount of the penalty and that is
14-16 effective until all judicial review of the order is final; or
14-17 (2) request the court to stay enforcement of the
14-18 penalty by:
14-19 (A) filing with the court a sworn affidavit of
14-20 the person stating that the person is financially unable to pay the
14-21 amount of the penalty and is financially unable to give the
14-22 supersedeas bond; and
14-23 (B) giving a copy of the affidavit to the
14-24 department by certified mail.
14-25 (d) If the department receives a copy of an affidavit under
15-1 Subsection (c)(2), the department may file with the court, within
15-2 five days after the date the copy is received, a contest to the
15-3 affidavit. The court shall hold a hearing on the facts alleged in
15-4 the affidavit as soon as practicable and shall stay the enforcement
15-5 of the penalty on finding that the alleged facts are true. The
15-6 person who files an affidavit has the burden of proving that the
15-7 person is financially unable to pay the penalty and to give a
15-8 supersedeas bond.
15-9 (e) If the person does not pay the penalty and the
15-10 enforcement of the penalty is not stayed, the department may refer
15-11 the matter to the attorney general for collection of the penalty.
15-12 (f) Judicial review of the order:
15-13 (1) is instituted by filing a petition as provided by
15-14 Subchapter G, Chapter 2001, Government Code; and
15-15 (2) is under the substantial evidence rule.
15-16 (g) If the court sustains the occurrence of the violation,
15-17 the court may uphold or reduce the amount of the penalty and order
15-18 the person to pay the full or reduced amount of the penalty. If
15-19 the court does not sustain the occurrence of the violation, the
15-20 court shall order that no penalty is owed.
15-21 (h) When the judgment of the court becomes final, the court
15-22 shall proceed under this subsection. If the person paid the amount
15-23 of the penalty under Subsection (b)(2) and if that amount is
15-24 reduced or is not upheld by the court, the court shall order that
15-25 the department pay the appropriate amount plus accrued interest to
16-1 the person. The rate of the interest is the rate charged on loans
16-2 to depository institutions by the New York Federal Reserve Bank,
16-3 and the interest shall be paid for the period beginning on the date
16-4 the penalty was paid and ending on the date the penalty is
16-5 remitted. If the person paid the penalty under Subsection
16-6 (c)(1)(A), or gave a supersedeas bond, and if the amount of the
16-7 penalty is not upheld by the court, the court shall order the
16-8 release of the escrow account or bond. If the person paid the
16-9 penalty under Subsection (c)(1)(A) and the amount of the penalty is
16-10 reduced, the court shall order that the amount of the penalty be
16-11 paid to the department from the escrow account and that the
16-12 remainder of the account be released. If the person gave a
16-13 supersedeas bond and if the amount of the penalty is reduced, the
16-14 court shall order the release of the bond after the person pays the
16-15 amount.
16-16 Sec. 345.105. PENALTY DEPOSITED TO STATE TREASURY. An
16-17 administrative penalty collected under this subchapter shall be
16-18 deposited in the state treasury to the credit of the general
16-19 revenue fund.
16-20 Sec. 345.106. INJUNCTION. (a) At the request of the
16-21 commissioner of public health, the attorney general may petition
16-22 the district court for a temporary restraining order to restrain a
16-23 continuing violation of this chapter or a threat of a continuing
16-24 violation of this chapter if the commissioner of public health
16-25 finds that:
17-1 (1) a person has violated, is violating, or is
17-2 threatening to violate this chapter; and
17-3 (2) the violation or threatened violation creates an
17-4 immediate threat to the health and safety of the public.
17-5 (b) A district court, on petition under this section and on
17-6 a finding by the court that a person is violating or threatening to
17-7 violate this chapter, shall grant any injunctive relief warranted
17-8 by the facts.
17-9 (c) Venue for a suit brought under this section is in the
17-10 county in which the violation or threat of violation is alleged to
17-11 have occurred or in Travis County.
17-12 Sec. 345.107. RECOVERY OF COSTS. (a) The department may
17-13 assess reasonable expenses and costs against a person in an
17-14 administrative hearing if, as a result of the hearing, the person's
17-15 permit is denied, suspended, or revoked or if administrative
17-16 penalties are assessed against the person. The person shall pay
17-17 expenses and costs assessed under this subsection not later than
17-18 the 30th day after the date on which the order issued by the
17-19 commissioner of public health or the commissioner's designee
17-20 requiring the payment of expenses and costs is final. The
17-21 department may refer the matter to the attorney general for
17-22 collection of the expenses and costs.
17-23 (b) If the attorney general brings an action against a
17-24 person under Section 345.106 or to enforce an administrative
17-25 penalty assessed under this subchapter and an injunction is granted
18-1 against the person or the person is found liable for an
18-2 administrative penalty, the attorney general may recover, on behalf
18-3 of the attorney general and the department, reasonable expenses and
18-4 costs.
18-5 (c) For purposes of this section, "reasonable expenses and
18-6 costs" include expenses incurred by the department and the attorney
18-7 general in the investigation, initiation, or prosecution of an
18-8 action, including reasonable investigative costs, court costs,
18-9 attorney's fees, witness fees, and deposition expenses.
18-10 (Sections 345.108-345.130 reserved for expansion
18-11 SUBCHAPTER F. DETENTION OR EMBARGO OF BEDDING
18-12 Sec. 345.131. DEFINITIONS. In this subchapter:
18-13 (1) "Authorized agent" means an employee of the
18-14 department who is designated by the commissioner of public health
18-15 to enforce the provisions of this chapter.
18-16 (2) "Detained or embargoed bedding" means bedding that
18-17 has been detained or embargoed under Section 345.132.
18-18 Sec. 345.132. DETAINED OR EMBARGOED BEDDING. (a) The
18-19 commissioner of public health or an authorized agent may detain or
18-20 embargo bedding under this section if the commissioner or the
18-21 authorized agent finds or has probable cause to believe that the
18-22 article violates this chapter or a rule or standard adopted under
18-23 this chapter.
18-24 (b) The commissioner of public health or an authorized agent
18-25 shall affix to detained or embargoed bedding a tag or other
19-1 appropriate marking that gives notice that:
19-2 (1) the bedding violates or is suspected of violating
19-3 this chapter or a rule or standard adopted under this chapter; and
19-4 (2) the bedding has been detained or embargoed.
19-5 (c) The tag or marking on detained or embargoed bedding must
19-6 warn all persons not to use the bedding, remove the bedding from
19-7 the premises, or dispose of the bedding by sale or otherwise until
19-8 permission for use, removal, or disposal is given by the
19-9 commissioner of public health, the authorized agent, or a court.
19-10 (d) A person may not use detained or embargoed bedding,
19-11 remove detained or embargoed bedding from the premises, or dispose
19-12 of detained or embargoed bedding by sale or otherwise without
19-13 permission of the commissioner of public health, the authorized
19-14 agent, or a court.
19-15 (e) The commissioner of public health or an authorized agent
19-16 shall remove the tag or other marking from detained or embargoed
19-17 bedding if the commissioner or an authorized agent finds that the
19-18 bedding does not violate this chapter or a rule or standard adopted
19-19 under this chapter.
19-20 Sec. 345.133. REMOVAL ORDER FOR DETAINED OR EMBARGOED
19-21 BEDDING. (a) If the claimant of the detained or embargoed bedding
19-22 or the claimant's agent fails or refuses to transfer the bedding to
19-23 a secure place after the tag or other appropriate marking has been
19-24 affixed as provided by Section 345.132, the commissioner of public
19-25 health or an authorized agent may order the transfer of the bedding
20-1 to one or more secure storage areas to prevent unauthorized use,
20-2 removal, or disposal.
20-3 (b) The commissioner of public health or an authorized agent
20-4 may provide for the transfer of the bedding if the claimant of the
20-5 bedding or the claimant's agent does not carry out the transfer
20-6 order in a timely manner.
20-7 (c) The claimant of the bedding or the claimant's agent
20-8 shall pay the costs of the transfer, and the costs of any transfer
20-9 made under Subsection (a) or (b) shall be assessed against the
20-10 claimant of the bedding or the claimant's agent.
20-11 (d) The commissioner of public health may request the
20-12 attorney general to bring an action in the district court in Travis
20-13 County to recover the costs of the transfer. In a judgment in
20-14 favor of the state, the court may award costs, attorney's fees,
20-15 court costs, and interest from the time the expense was incurred
20-16 through the date the department is reimbursed.
20-17 Sec. 345.134. CONDEMNATION. An action for the condemnation
20-18 of bedding may be brought before a court in whose jurisdiction the
20-19 bedding is located, detained, or embargoed if the bedding violates
20-20 this chapter or a rule or standard adopted under this chapter.
20-21 Sec. 345.135. RECALL ORDERS. (a) In conjunction with the
20-22 detention or embargo of bedding under this subchapter, the
20-23 commissioner of public health may order bedding to be recalled from
20-24 commerce.
20-25 (b) The commissioner of public health's recall order may
21-1 require the bedding to be removed to one or more secure areas
21-2 approved by the commissioner or an authorized agent.
21-3 (c) The recall order must be in writing and signed by the
21-4 commissioner of public health.
21-5 (d) The recall order may be issued before or in conjunction
21-6 with the affixing of the tag or other appropriate marking as
21-7 provided by Section 345.132(b).
21-8 (e) The recall order is effective until the order:
21-9 (1) expires on its own terms;
21-10 (2) is withdrawn by the commissioner of public health;
21-11 or
21-12 (3) is reversed by a court in an order denying
21-13 condemnation under Section 345.134.
21-14 (f) The claimant of the bedding or the claimant's agent
21-15 shall pay the costs of the removal and storage of the bedding
21-16 removed.
21-17 (g) If the claimant or the claimant's agent fails or refuses
21-18 to carry out the recall order in a timely manner, the commissioner
21-19 of public health may provide for the recall of the bedding. The
21-20 costs of the recall shall be assessed against the claimant of the
21-21 bedding or the claimant's agent.
21-22 (h) The commissioner of public health may request the
21-23 attorney general to bring an action in the district court of Travis
21-24 County to recover the costs of the recall. In a judgment in favor
21-25 of the state, the court may award costs, attorney's fees, court
22-1 costs, and interest from the time the expense was incurred through
22-2 the date the department is reimbursed.
22-3 Sec. 345.136. DESTRUCTION OF BEDDING. (a) A court shall
22-4 order the destruction of detained or embargoed bedding if the court
22-5 finds that the bedding violates this chapter or a rule or standard
22-6 adopted under this chapter.
22-7 (b) After entry of the court's order, an authorized agent
22-8 shall supervise the destruction of the bedding.
22-9 (c) The claimant of the article shall pay the cost of the
22-10 destruction of the bedding.
22-11 (d) The court shall tax against the claimant of the bedding
22-12 or the claimant's agent all court costs and fees and storage and
22-13 other proper expenses.
22-14 Sec. 345.137. CORRECTION BY PROPER LABELING OR PROCESSING.
22-15 (a) A court may order the delivery of detained or embargoed
22-16 bedding that violates this chapter or a rule or standard adopted
22-17 under this chapter to the claimant of the bedding for labeling or
22-18 processing under the supervision of an agent of the commissioner of
22-19 public health or an authorized agent if:
22-20 (1) the decree has been entered in the suit relating
22-21 to the detained or embargoed bedding;
22-22 (2) the claimant has paid the costs, fees, and
22-23 expenses of the suit;
22-24 (3) the violation can be corrected by proper labeling
22-25 or processing; and
23-1 (4) a good and sufficient bond, conditioned on the
23-2 correction of the violation by proper labeling or processing, has
23-3 been executed.
23-4 (b) The claimant shall pay the costs of the supervision of
23-5 the labeling or processing by the agent of the commissioner of
23-6 public health or an authorized agent.
23-7 (c) The court shall order that the bedding be returned to
23-8 the claimant and the bond discharged on the representation to the
23-9 court by the commissioner of public health or an authorized agent
23-10 that the article no longer violates this chapter or a rule or
23-11 standard adopted under this chapter and that the expenses of the
23-12 supervision are paid.
23-13 SECTION 11. This Act takes effect September 1, 1997.
23-14 SECTION 12. The change in law made by Section 7 of this Act
23-15 applies only to the issuance or renewal of a permit under
23-16 Subchapter C, Chapter 345, Health and Safety Code, on or after
23-17 January 1, 1998.
23-18 SECTION 13. (a) The change in law made by Section 8 of this
23-19 Act applies only to the punishment for an offense committed on or
23-20 after the effective date of this Act. For purposes of this
23-21 section, an offense is committed before the effective date of this
23-22 Act if any element of the offense occurs before the effective date.
23-23 (b) An offense committed before the effective date of this
23-24 Act is covered by the law in effect when the offense was committed,
23-25 and the former law is continued in effect for this purpose.
S.B. No. 1284
24-1 SECTION 14. The change in law made by Section 10 of this Act
24-2 applies only to assessment of an administrative penalty for conduct
24-3 occurring on or after the effective date of this Act.
24-4 SECTION 15. The importance of this legislation and the
24-5 crowded condition of the calendars in both houses create an
24-6 emergency and an imperative public necessity that the
24-7 constitutional rule requiring bills to be read on three several
24-8 days in each house be suspended, and this rule is hereby suspended.
________________________________ ________________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1284 passed the Senate on
April 17, 1997, by the following vote: Yeas 31, Nays 0;
May 23, 1997, Senate refused to concur in House amendment and
requested appointment of Conference Committee; May 24, 1997, House
granted request of the Senate; June 1, 1997, Senate adopted
Conference Committee Report by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1284 passed the House, with
amendment, on May 21, 1997, by a non-record vote; May 24, 1997,
House granted request of the Senate for appointment of Conference
Committee; June 1, 1997, House adopted Conference Committee Report
by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
________________________________
Date
________________________________
Governor