By Gallegos                                     S.B. No. 1284

      75R6748 DLF-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to regulation of new or renovated bedding; providing

 1-3     penalties.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 345.001, Health and Safety Code, is

 1-6     amended by amending Subdivisions (7), (8), (9), and (10) and adding

 1-7     Subdivision (11) to read as follows:

 1-8                 (7)  "Recycled material" means material that:

 1-9                       (A)  is composed of recyclable material or that

1-10     is derived from postconsumer waste or industrial waste; and

1-11                       (B)  may be used in place of raw or virgin

1-12     filling material in manufacturing, repairing, or renovating

1-13     bedding.

1-14                 (8)  "Renovate" means to restore to a former condition

1-15     or to place in a good state of repair.

1-16                 (9) [(8)]  "Secondhand" means previous use in any

1-17     manner.

1-18                 (10) [(9)]  "Sell" includes offering or exposing for

1-19     sale, including in a sale, bartering, trading, delivering,

1-20     consigning, leasing, possessing with intent to sell, or disposing

1-21     of in any commercial manner.

1-22                 (11) [(10)]  "Wholesaler" means a person located

1-23     outside this state who on his own account sells, distributes, or

1-24     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 board may appoint an

2-23     advisory commission composed of representatives of consumers and

2-24     the bedding industry to assist the board in implementing this

2-25     chapter.

2-26           SECTION 4.  Subchapter B, Chapter 345, Health and Safety

2-27     Code, is amended to read as follows:

 3-1                        SUBCHAPTER B.  LABELS [TAGS]

 3-2           Sec. 345.021.  LABEL [TAG] REQUIRED.  (a)  A person may not

 3-3     manufacture, repair, renovate, or sell bedding unless a label [tag]

 3-4     that conforms to this subchapter is:

 3-5                 (1)  securely attached to the bedding at the location

 3-6     and by a method approved by the department; and

 3-7                 (2)  [is] clearly visible.

 3-8           (b)  The label [tag] must be [white and] made of substantial

 3-9     cloth or a substance of equal quality.

3-10           (c)  The information required on a label [tag] by this

3-11     chapter must be in English.  The department may authorize or

3-12     require the use of a language in addition to English on a label or

3-13     on an additional separate label.

3-14           Sec. 345.022.  LABELS [TAGS] ON BEDDING MADE OF NEW OR

3-15     SECONDHAND MATERIAL.  (a)  A label [tag] required under this

3-16     section shall be attached at the factory in which the bedding is

3-17     manufactured.

3-18           (b)  A label [tag] attached to bedding wholly manufactured

3-19     from new material must be at least six square inches and state,

3-20     plainly stamped or printed in [black] ink:

3-21                 (1)  "All New Material" in lettering at least

3-22     one-eighth inch high;

3-23                 (2)  the kind and grade of each material used in the

3-24     filling and, if more than one kind or grade of material is used,

3-25     the percentage, in descending order, by weight of each material;

3-26     and

3-27                 (3)  the manufacturer's permit number assigned by the

 4-1     department.

 4-2           (c)  A label [tag] attached to bedding any part of which is

 4-3     manufactured from secondhand or recycled material, other than

 4-4     bedding reworked, repaired, or renovated for the owner for the

 4-5     owner's personal use, must be at least 12 square inches and state,

 4-6     plainly stamped or printed in [red] ink:

 4-7                 (1)  "Secondhand or Recycled Material" in lettering at

 4-8     least one-fourth inch high; and

 4-9                 (2)  the manufacturer's permit number assigned by the

4-10     department.

4-11           (d)  A label [tag] attached to bedding renovated, reworked,

4-12     or repaired for the owner for the owner's personal use and from the

4-13     owner's material that is in whole or in part secondhand must be at

4-14     least six square inches and state, plainly stamped or printed in

4-15     [black] ink:

4-16                 (1)  "Not for Sale, Owner's Own Material which is

4-17     Secondhand Material" in lettering at least one-eighth inch high;

4-18                 (2)  the name and address of the owner; and

4-19                 (3)  the manufacturer's permit number assigned by the

4-20     department.

4-21           (e)  A term used on a label [tag] required by this section to

4-22     describe kinds and grades of material used in filling must conform

4-23     to those defined in the department's rules, and a trade or

4-24     substitute term may not be used.

4-25           (f)  The department may adopt rules that:

4-26                 (1)  require that the label state conformity with burn

4-27     resistant material requirements or identify any chemical treatment

 5-1     applied to the bedding; and

 5-2                 (2)  exempt from the requirements of this section a

 5-3     custom upholstery business that does not repair or renovate bedding

 5-4     for resale.

 5-5           Sec. 345.023.  FALSE OR MISLEADING STATEMENT PROHIBITED.  A

 5-6     person may not make a false or misleading statement on a label

 5-7     [tag] required by Section 345.022.

 5-8           Sec. 345.024.  GERMICIDAL TREATMENT OF BEDDING AND MATERIALS.

 5-9     (a)  Except as provided by Subsection (b), a person may not sell

5-10     secondhand bedding or bedding manufactured in whole or in part from

5-11     secondhand or recycled material unless the bedding has been

5-12     germicidally treated and cleaned by a method approved by the

5-13     department.

5-14           (b)  An upholstered sofa bed, reclining chair, or studio

5-15     couch shall be germicidally treated and cleaned only when required

5-16     by department  rules.

5-17           (c)  A person may not use in the manufacture, repair, or

5-18     renovation of bedding a material that has not been cleaned and

5-19     germicidally treated by a process or treatment approved by the

5-20     department if the material:

5-21                 (1)  has been used by a person with a communicable

5-22     disease;  or

5-23                 (2)  is filthy, oily, stained, or harbors loathsome

5-24     insects or pathogenic organisms [bacteria].

5-25           (d)  A person may not sell material or bedding requiring

5-26     germicidal treatment under this section unless the person applying

5-27     the germicidal treatment securely attaches by a method approved by

 6-1     the department a label [tag] that is at least 12 square inches and

 6-2     contains, plainly printed in [black] ink:

 6-3                 (1)  a statement that the article or material has been

 6-4     germicidally treated by a method approved by the department;

 6-5                 (2)  a statement of the method of germicidal treatment

 6-6     applied;

 6-7                 (3)  the date [lot number and the tag number of] the

 6-8     article was germicidally treated;

 6-9                 (4)  the name and address of the person for whom the

6-10     article was germicidally treated; and

6-11                 (5)  the permit number of the person applying the

6-12     germicidal treatment.

6-13           Sec. 345.025.  [TAG,] LABEL[, OR MARKING] REQUIRED ON [BY

6-14     PROCESSOR OF] FILLING MATERIAL.  A processor shall identify each

6-15     item of material to be used for filling bedding by affixing to the

6-16     filling material a label as required by department rules [shipment

6-17     or  delivery, however contained, of processed filling material used

6-18     for filling bedding by affixing to the bedding in a conspicuous

6-19     place a tag, label, or indelible marking that clearly indicates:]

6-20                 [(1)  the kind of material;]

6-21                 [(2)  whether the material is new or secondhand; and]

6-22                 [(3)  the permit number of the processor].

6-23           Sec. 345.026.  REMOVAL, DEFACEMENT, OR ALTERATION.  A person

6-24     may not remove, deface, or alter, or cause the removal, defacing,

6-25     or alteration of, a label [tag] or a statement on the label [tag]

6-26     to defeat a provision of this chapter.

6-27           Sec. 345.027.  COLOR OF LABEL AND LETTERING.  The department

 7-1     may adopt rules governing the color of label required under this

 7-2     subchapter and the color of the lettering on the label [DEFACEMENT

 7-3     OF TAG BY STAMP.  A tag is considered to be defaced if a stamp

 7-4     required by  Subchapter D is placed over any lettering on the tag].

 7-5           Sec. 345.028.  APPLICATION TO RECYCLED MATERIAL.

 7-6     Notwithstanding any other provision of this subchapter, this

 7-7     subchapter applies to bedding manufactured, repaired, or renovated

 7-8     in whole or in part from recycled materials only to the extent

 7-9     required by department rules.

7-10           SECTION 5.  Section 345.041, Health and Safety Code, is

7-11     amended by adding Subsection (c) to read as follows:

7-12           (c)  The board by rule may exempt from the permit requirement

7-13     of this section a custom upholstery business that does not repair

7-14     or renovate bedding for resale.

7-15           SECTION 6.  Section 345.043, Health and Safety Code, is

7-16     amended to read as follows:

7-17           Sec. 345.043.  FEES; EXPIRATION.  (a)  The board shall set

7-18     the fees [fee] for an initial permit issued under this chapter and

7-19     for renewal of a permit issued under this chapter in amounts

7-20     reasonable and necessary to defray the cost of administering this

7-21     chapter [is $15].

7-22           (b)  A fee collected under this chapter shall be deposited to

7-23     a special account in the state treasury.  Money in the account may

7-24     be appropriated only to the department to administer and enforce

7-25     this chapter.

7-26           (c)  A permit expires one year after the date of issuance.

7-27           [(c)  The renewal fee for a permit is $10.]

 8-1           SECTION 7.  Subchapter C, Chapter 345, Health and Safety

 8-2     Code, is amended by adding Sections 345.0435 and 345.0436 to read

 8-3     as follows:

 8-4           Sec. 345.0435.  ADOPTION OF RULES; MINIMUM STANDARDS.  (a)

 8-5     The board shall adopt rules necessary to implement this subchapter,

 8-6     including requirements for the issuance, renewal, denial,

 8-7     suspension, and revocation of a permit issued under this

 8-8     subchapter.

 8-9           (b)  The rules must contain minimum standards to protect the

8-10     health and safety of the public.

8-11           Sec. 345.0436.  SUBMISSION OF PRODUCT TEST RESULTS OR SAMPLE.

8-12     In conjunction with the issuance or renewal of a permit under this

8-13     subchapter, the department may require the applicant or permit

8-14     holder to submit:

8-15                 (1)  a product sample; or

8-16                 (2)  the results of tests conducted on the product as

8-17     required by the department.

8-18           SECTION 8.  Section 345.087, Health and Safety Code, is

8-19     amended to read as follows:

8-20           Sec. 345.087.  PROHIBITED ACTS; CRIMINAL OFFENSE.  (a)  A

8-21     person commits an offense if a person:

8-22                 (1)  manufactures, repairs, or renovates:

8-23                       (A)  bedding using material in violation of rules

8-24     adopted under Section 345.0055;

8-25                       (B)  bedding or batting in violation of Section

8-26     345.005;

8-27                       (C)  bedding using material in violation of

 9-1     Section 345.024; or

 9-2                       (D)  bedding that does not conform to the label

 9-3     requirements of Subchapter B;

 9-4                 (2)  introduces or delivers for introduction into

 9-5     commerce:

 9-6                       (A)  bedding or batting manufactured, repaired,

 9-7     or renovated in violation of Section 345.005, 345.0055, or 345.024;

 9-8                       (B)  bedding that does not conform to the label

 9-9     requirements of Subchapter B; or

9-10                       (C)  bedding or material the sale of which is

9-11     prohibited as provided by Section 345.084;

9-12                 (3)  receives in commerce:

9-13                       (A)  bedding or batting manufactured, repaired,

9-14     or renovated in violation of Section 345.005, 345.0055, or 345.024;

9-15                       (B)  bedding that does not conform to the label

9-16     requirements of Subchapter B; or

9-17                       (C)  bedding or material the sale of which is

9-18     prohibited as provided by Section 345.084; or

9-19                 (4)  violates Section 345.041, 345.042, or any other

9-20     provision of this chapter or a rule adopted under this chapter.

9-21           (b)  An offense under this section is a Class A misdemeanor

9-22     [punishable by a fine of not less than $50 or more than $200].

9-23           (c)  In a criminal proceeding under Subsection (a)(1), (2),

9-24     or (3), it is not necessary to prove intent, knowledge,

9-25     recklessness, or criminal negligence.

9-26           (d)  It is a defense to prosecution under Subsection (a)(2)

9-27     or (3) that the person acted in good faith and was not the person

 10-1    who manufactured, repaired, or renovated the article.  This

 10-2    subsection does not apply unless the person furnishes, on request

 10-3    of the department or a local health authority, the name and address

 10-4    of the person from whom the article was received and copies of any

 10-5    documents relating to receipt of the article.

 10-6          SECTION 9.  Subchapter D, Chapter 345, Health and Safety

 10-7    Code, is repealed, Subchapter E, Chapter 345, Health and Safety

 10-8    Code, is redesignated as Subchapter D, Chapter 345, Health and

 10-9    Safety Code,  and the heading of Subchapter E, Chapter 345, Health

10-10    and Safety Code,  is amended to read as follows:

10-11         SUBCHAPTER D [E].  GENERAL ENFORCEMENT; CRIMINAL OFFENSE

10-12          SECTION 10.  Chapter 345, Health and Safety Code, is amended

10-13    by adding new Subchapters E and F to read as follows:

10-14        SUBCHAPTER E.  ADMINISTRATIVE OR CIVIL PENALTY; INJUNCTION

10-15          Sec. 345.101.  ADMINISTRATIVE PENALTY.  (a)  The department

10-16    may assess an administrative penalty against a person who violates

10-17    this chapter or a rule adopted under this chapter.

10-18          (b)  The penalty may not exceed $25,000 for each violation.

10-19    Each day of a continuing violation constitutes a separate

10-20    violation.

10-21          (c)  In determining the amount of an administrative penalty

10-22    assessed under this section, the department shall consider:

10-23                (1)  the seriousness of the violation;

10-24                (2)  the history of previous violations;

10-25                (3)  the amount necessary to deter future violations;

10-26                (4)  efforts made to correct the violation; and

10-27                (5)  any other matters that justice may require.

 11-1          (d)  All proceedings for the assessment of an administrative

 11-2    penalty under this chapter are subject to Chapter 2001, Government

 11-3    Code.

 11-4          Sec. 345.102.  NOTICE; REQUEST FOR HEARING.  (a)  If, after

 11-5    investigation of a possible violation and the facts surrounding

 11-6    that possible violation, the department determines that a violation

 11-7    has occurred, the department shall give written notice of the

 11-8    violation to the person alleged to have committed the violation.

 11-9    The notice must include:

11-10                (1)  a brief summary of the alleged violation;

11-11                (2)  a statement of the amount of the proposed penalty

11-12    based on the factors set forth in Section 345.101(c); and

11-13                (3)  a statement of the person's right to a hearing on

11-14    the occurrence of the violation, the amount of the penalty, or both

11-15    the occurrence of the violation and the amount of the penalty.

11-16          (b)  Not later than the 20th day after the date on which the

11-17    notice is received, the person notified may accept the

11-18    determination of the department made under this section, including

11-19    the proposed penalty, or may make a written request for a hearing

11-20    on that determination.

11-21          (c)  If the person notified of the violation accepts the

11-22    determination of the department or if the person fails to respond

11-23    in a timely manner to the notice, the commissioner or the

11-24    commissioner's designee shall issue an order approving the

11-25    determination and ordering that the person pay the proposed

11-26    penalty.

11-27          Sec. 345.103.  HEARING; ORDER.  (a)  If the person notified

 12-1    requests a hearing, the department shall:

 12-2                (1)  set a hearing;

 12-3                (2)  give written notice of the hearing to the person;

 12-4    and

 12-5                (3)  designate a hearings examiner to conduct the

 12-6    hearing.

 12-7          (b)  The hearings examiner shall make findings of fact and

 12-8    conclusions of law and shall promptly issue to the commissioner or

 12-9    the commissioner's designee a proposal for decision as to the

12-10    occurrence of the violation and a recommendation as to the amount

12-11    of the proposed penalty if a penalty is determined to be warranted.

12-12          (c)  Based on the findings of fact and conclusions of law and

12-13    the recommendations of the hearings examiner, the commissioner or

12-14    the commissioner's designee by order may find that a violation has

12-15    occurred and may assess a penalty, or may find that no violation

12-16    has occurred.

12-17          Sec. 345.104.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;

12-18    JUDICIAL REVIEW; REFUND.  (a)  The department shall give notice of

12-19    the order under Section 345.103(c) to the person alleged to have

12-20    committed the violation.  The notice must include:

12-21                (1)  separate statements of the findings of fact and

12-22    conclusions of law;

12-23                (2)  the amount of any penalty assessed; and

12-24                (3)  a statement of the right of the person to judicial

12-25    review of the order.

12-26          (b)  Not later than the 30th day after the date on which the

12-27    decision is final as provided by Chapter 2001, Government Code, the

 13-1    person shall:

 13-2                (1)  pay the penalty;

 13-3                (2)  pay the penalty and file a petition for judicial

 13-4    review contesting the occurrence of the violation, the amount of

 13-5    the penalty, or both the occurrence of the violation and the amount

 13-6    of the penalty; or

 13-7                (3)  without paying the penalty, file a petition for

 13-8    judicial review contesting the occurrence of the violation, the

 13-9    amount of the penalty, or both the occurrence of the violation and

13-10    the amount of the penalty.

13-11          (c)  Within the 30-day period, a person who acts under

13-12    Subsection (b)(3) may:

13-13                (1)  stay enforcement of the penalty by:

13-14                      (A)  paying the penalty to the court for

13-15    placement in an escrow account; or

13-16                      (B)  giving to the court a supersedeas bond that

13-17    is approved by the court for the amount of the penalty and that is

13-18    effective until all judicial review of the order is final; or

13-19                (2)  request the court to stay enforcement of the

13-20    penalty by:

13-21                      (A)  filing with the court a sworn affidavit of

13-22    the person stating that the person is financially unable to pay the

13-23    amount of the penalty and is financially unable to give the

13-24    supersedeas bond; and

13-25                      (B)  giving a copy of the affidavit to the

13-26    department by certified mail.

13-27          (d)  If the department receives a copy of an affidavit under

 14-1    Subsection (c)(2), the department may file with the court, within

 14-2    five days after the date the copy is received, a contest to the

 14-3    affidavit.  The court shall hold a hearing on the facts alleged in

 14-4    the affidavit as soon as practicable and shall stay the enforcement

 14-5    of the penalty on finding that the alleged facts are true.  The

 14-6    person who files an affidavit has the burden of proving that the

 14-7    person is financially unable to pay the penalty and to give a

 14-8    supersedeas bond.

 14-9          (e)  If the person does not pay the penalty and the

14-10    enforcement of the penalty is not stayed, the department may refer

14-11    the matter to the attorney general for collection of the penalty.

14-12          (f)  Judicial review of the order:

14-13                (1)  is instituted by filing a petition as provided by

14-14    Subchapter G, Chapter 2001, Government Code; and

14-15                (2)  is under the substantial evidence rule.

14-16          (g)  If the court sustains the occurrence of the violation,

14-17    the court may uphold or reduce the amount of the penalty and order

14-18    the person to pay the full or reduced amount of the penalty.  If

14-19    the court does not sustain the occurrence of the violation, the

14-20    court shall order that no penalty is owed.

14-21          (h)  When the judgment of the court becomes final, the court

14-22    shall proceed under this subsection.  If the person paid the amount

14-23    of the penalty under Subsection (b)(2) and if that amount is

14-24    reduced or is not upheld by the court, the court shall order that

14-25    the department pay the appropriate amount plus accrued interest to

14-26    the person.  The rate of the interest is the rate charged on loans

14-27    to depository institutions by the New York Federal Reserve Bank,

 15-1    and the interest shall be paid for the period beginning on the date

 15-2    the penalty was paid and ending on the date the penalty is

 15-3    remitted.  If the person paid the penalty under Subsection

 15-4    (c)(1)(A), or gave a supersedeas bond, and if the amount of the

 15-5    penalty is not upheld by the court, the court shall order the

 15-6    release of the escrow account or bond.  If the person paid the

 15-7    penalty under Subsection (c)(1)(A) and the amount of the penalty is

 15-8    reduced, the court shall order that the amount of the penalty be

 15-9    paid to the department from the escrow account and that the

15-10    remainder of the account be released.  If the person gave a

15-11    supersedeas bond and if the amount of the penalty is reduced, the

15-12    court shall order the release of the bond after the person pays the

15-13    amount.

15-14          Sec. 345.105.  PENALTY DEPOSITED TO STATE TREASURY.  An

15-15    administrative penalty collected under this subchapter shall be

15-16    deposited in the state treasury to the credit of the general

15-17    revenue fund.

15-18          Sec. 345.106.  INJUNCTION.  (a)  At the request of the

15-19    commissioner, the attorney general may petition the district court

15-20    for a temporary restraining order to restrain a continuing

15-21    violation of this chapter or a threat of a continuing violation of

15-22    this chapter if the commissioner finds that:

15-23                (1)  a person has violated, is violating, or is

15-24    threatening to violate this chapter; and

15-25                (2)  the violation or threatened violation creates an

15-26    immediate threat to the health and safety of the public.

15-27          (b)  A district court, on petition under this section and on

 16-1    a finding by the court that a person is violating or threatening to

 16-2    violate this chapter, shall grant any injunctive relief warranted

 16-3    by the facts.

 16-4          (c)  Venue for a suit brought under this section is in the

 16-5    county in which the violation or threat of violation is alleged to

 16-6    have occurred or in Travis County.

 16-7          Sec. 345.107.  CIVIL PENALTY.  (a)  At the request of the

 16-8    commissioner, the attorney general shall institute an action in

 16-9    district court to collect a civil penalty from a person who has

16-10    violated this chapter.

16-11          (b)  The civil penalty may not exceed $25,000 a day for each

16-12    violation.  Each day of violation constitutes a separate violation

16-13    for purposes of the penalty assessment.

16-14          (c)  The court shall consider the following in determining

16-15    the amount of the penalty:

16-16                (1)  the seriousness of the violation;

16-17                (2)  the history of previous violations;

16-18                (3)  the amount necessary to deter future violations;

16-19                (4)  efforts made to correct the violation; and

16-20                (5)  any other matters that justice may require.

16-21          (d)  Venue for a suit brought under this section is in the

16-22    county in which the violation occurred or in Travis County.

16-23          Sec. 345.108.  RECOVERY OF COSTS.  (a)  The department may

16-24    assess reasonable expenses and costs against a person in an

16-25    administrative hearing if, as a result of the hearing, the person's

16-26    permit is denied, suspended, or revoked or if administrative

16-27    penalties are assessed against the person.  The person shall pay

 17-1    expenses and costs assessed under this subsection not later than

 17-2    the 30th day after the date on which the order issued by the

 17-3    commissioner or the commissioner's designee requiring the payment

 17-4    of expenses and costs is final.  The department may refer the

 17-5    matter to the attorney general for collection of the expenses and

 17-6    costs.

 17-7          (b)  If the attorney general brings an action against a

 17-8    person under Section 345.106 or 345.107 or to enforce an

 17-9    administrative penalty assessed under this subchapter, and an

17-10    injunction is granted against the person or the person is found

17-11    liable for a civil or administrative penalty, the attorney general

17-12    may recover, on behalf of the attorney general and the department,

17-13    reasonable expenses and costs.

17-14          (c)  For purposes of this section, "reasonable expenses and

17-15    costs" include expenses incurred by the department and the attorney

17-16    general in the investigation, initiation, or prosecution of an

17-17    action, including reasonable investigative costs, court costs,

17-18    attorney's fees, witness fees, and deposition expenses.

17-19             (Sections 345.109-345.130 reserved for expansion

17-20              SUBCHAPTER F.  DETENTION OR EMBARGO OF BEDDING

17-21          Sec. 345.131.  DEFINITIONS.  In this subchapter:

17-22                (1)  "Authorized agent" means an employee of the

17-23    department who is designated by the commissioner to enforce the

17-24    provisions of this chapter.

17-25                (2)  "Detained or embargoed bedding" means bedding that

17-26    has been detained or embargoed under Section 345.132.

17-27          Sec. 345.132.  DETAINED OR EMBARGOED BEDDING.  (a)  The

 18-1    commissioner or an authorized agent may detain or embargo bedding

 18-2    under this section if the commissioner or the authorized agent

 18-3    finds or has probable cause to believe that the article violates

 18-4    this chapter or a rule or standard adopted under this chapter.

 18-5          (b)  The commissioner or an authorized agent shall affix to

 18-6    detained or embargoed bedding a tag or other appropriate marking

 18-7    that gives notice that:

 18-8                (1)  the bedding violates or is suspected of violating

 18-9    this chapter or a rule or standard adopted under this chapter; and

18-10                (2)  the bedding has been detained or embargoed.

18-11          (c)  The tag or marking on detained or embargoed bedding must

18-12    warn all persons not to use the bedding, remove the bedding from

18-13    the premises, or dispose of the bedding by sale or otherwise until

18-14    permission for use, removal, or disposal is given by the

18-15    commissioner, the authorized agent, or a court.

18-16          (d)  A person may not use detained or embargoed bedding,

18-17    remove detained or embargoed bedding from the premises, or dispose

18-18    of detained or embargoed bedding by sale or otherwise without

18-19    permission of the commissioner, the authorized agent, or a court.

18-20          (e)  The commissioner or an authorized agent shall remove the

18-21    tag or other marking from detained or embargoed bedding if the

18-22    commissioner or an authorized agent finds that the bedding does not

18-23    violate this chapter or a rule or standard adopted under this

18-24    chapter.

18-25          Sec. 345.133.  REMOVAL ORDER FOR DETAINED OR EMBARGOED

18-26    BEDDING.  (a)  If the claimant of the detained or embargoed bedding

18-27    or the claimant's agent fails or refuses to transfer the bedding to

 19-1    a secure place after the tag or other appropriate marking has been

 19-2    affixed as provided by Section 345.132, the commissioner or an

 19-3    authorized agent may order the transfer of the bedding to one or

 19-4    more secure storage areas to prevent unauthorized use, removal, or

 19-5    disposal.

 19-6          (b)  The commissioner or an authorized agent may provide for

 19-7    the transfer of the bedding if the claimant of the bedding or the

 19-8    claimant's agent does not carry out the transfer order in a timely

 19-9    manner.

19-10          (c)  The claimant of the bedding  or the claimant's agent

19-11    shall pay the costs of the transfer, and the costs of any transfer

19-12    made under Subsection (a) or (b) shall be assessed against the

19-13    claimant of the bedding or the claimant's agent.

19-14          (d)  The commissioner may request the attorney general to

19-15    bring an action in the district court in Travis County to recover

19-16    the costs of the transfer.  In a judgment in favor of the state,

19-17    the court may award costs, attorney's fees, court costs, and

19-18    interest from the time the expense was incurred through the date

19-19    the department is reimbursed.

19-20          Sec. 345.134.  CONDEMNATION.  An action for the condemnation

19-21    of bedding may be brought before a court in whose jurisdiction the

19-22    bedding is located, detained, or embargoed if the bedding violates

19-23    this chapter or a rule or standard adopted under this chapter.

19-24          Sec. 345.135.  RECALL ORDERS.  (a)  In conjunction with the

19-25    detention or embargo of bedding under this subchapter, the

19-26    commissioner may order bedding to be recalled from commerce.

19-27          (b)  The commissioner's recall order may require the bedding

 20-1    to be removed to one or more secure areas approved by the

 20-2    commissioner or an authorized agent.

 20-3          (c)  The recall order must be in writing and signed by the

 20-4    commissioner.

 20-5          (d)  The recall order may be issued before or in conjunction

 20-6    with the affixing of the tag or other appropriate marking as

 20-7    provided by Section 345.132(b).

 20-8          (e)  The recall order is effective until the order:

 20-9                (1)  expires on its own terms;

20-10                (2)  is withdrawn by the commissioner; or

20-11                (3)  is reversed by a court in an order denying

20-12    condemnation under Section 345.134.

20-13          (f)  The claimant of the bedding or the claimant's agent

20-14    shall pay the costs of the removal and storage of the bedding

20-15    removed.

20-16          (g)  If the claimant or the claimant's agent fails or refuses

20-17    to carry out the recall order in a timely manner, the commissioner

20-18    may provide for the recall of the bedding.  The costs of the recall

20-19    shall be assessed against the claimant of the bedding or the

20-20    claimant's agent.

20-21          (h)  The commissioner may request the attorney general to

20-22    bring an action in the district court of Travis County to recover

20-23    the costs of the recall.  In a judgment in favor of the state, the

20-24    court may award costs, attorney's fees, court costs, and interest

20-25    from the time the expense was incurred through the date the

20-26    department is reimbursed.

20-27          Sec. 345.136.  DESTRUCTION OF BEDDING.  (a)  A court shall

 21-1    order the destruction of detained or embargoed bedding if the court

 21-2    finds that the bedding violates this chapter or a rule or standard

 21-3    adopted under this chapter.

 21-4          (b)  After entry of the court's order, an authorized agent

 21-5    shall supervise the destruction of the bedding.

 21-6          (c)  The claimant of the article shall pay the cost of the

 21-7    destruction of the bedding.

 21-8          (d)  The court shall tax against the claimant of the bedding

 21-9    or the claimant's agent all court costs and fees and storage and

21-10    other proper expenses.

21-11          Sec. 345.137.  CORRECTION BY PROPER LABELING OR PROCESSING.

21-12    (a)  A court may order the delivery of detained or embargoed

21-13    bedding that violates this chapter or a rule or standard adopted

21-14    under this chapter to the claimant of the bedding for labeling or

21-15    processing under the supervision of an agent of the commissioner or

21-16    an authorized agent if:

21-17                (1)  the decree has been entered in the suit relating

21-18    to the detained or embargoed bedding;

21-19                (2)  the claimant has paid the costs, fees, and

21-20    expenses of the suit;

21-21                (3)  the violation can be corrected by proper labeling

21-22    or processing; and

21-23                (4)  a good and sufficient bond, conditioned on the

21-24    correction of the violation by proper labeling or processing, has

21-25    been executed.

21-26          (b)  The claimant shall pay the costs of the supervision of

21-27    the labeling or processing by the agent of the commissioner or an

 22-1    authorized agent.

 22-2          (c)  The court shall order that the bedding be returned to

 22-3    the claimant and the bond discharged on the representation to the

 22-4    court by the commissioner or an authorized agent that the article

 22-5    no longer violates this chapter or a rule or standard adopted under

 22-6    this chapter and that the expenses of the supervision are paid.

 22-7          SECTION 11.  This Act takes effect September 1, 1997.

 22-8          SECTION 12.  The change in law made by Section 7 of this Act

 22-9    applies only to the issuance or renewal of a permit under

22-10    Subchapter C, Chapter 345, Health and Safety Code, on or after

22-11    January 1, 1998.

22-12          SECTION 13.  (a)  The change in law made by Section 8 of this

22-13    Act applies only to the punishment for an offense committed on or

22-14    after the effective date of this Act.  For purposes of this

22-15    section, an offense is committed before the effective date of this

22-16    Act if any element of the offense occurs before the effective date.

22-17          (b)  An offense committed before the effective date of this

22-18    Act is covered by the law in effect when the offense was committed,

22-19    and the former law is continued in effect for this purpose.

22-20          SECTION 14.  The change in law made by Section 10 of this Act

22-21    applies only to assessment of an administrative or civil penalty

22-22    for conduct occurring on or after the effective date of this Act.

22-23          SECTION 15.  The importance of this legislation and the

22-24    crowded condition of the calendars in both houses create an

22-25    emergency and an imperative public necessity that the

22-26    constitutional rule requiring bills to be read on three several

22-27    days in each house be suspended, and this rule is hereby suspended.