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.