1-1 By: Gallegos S.B. No. 1284
1-2 (In the Senate - Filed March 12, 1997; March 18, 1997, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 2, 1997, reported favorably by the following vote: Yeas 10,
1-5 Nays 0; April 2, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to regulation of new or renovated bedding; providing
1-9 penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 345.001, Health and Safety Code, is
1-12 amended by amending Subdivisions (7), (8), (9), and (10) and adding
1-13 Subdivision (11) to read as follows:
1-14 (7) "Recycled material" means material that:
1-15 (A) is composed of recyclable material or that
1-16 is derived from postconsumer waste or industrial waste; and
1-17 (B) may be used in place of raw or virgin
1-18 filling material in manufacturing, repairing, or renovating
1-19 bedding.
1-20 (8) "Renovate" means to restore to a former condition
1-21 or to place in a good state of repair.
1-22 (9) [(8)] "Secondhand" means previous use in any
1-23 manner.
1-24 (10) [(9)] "Sell" includes offering or exposing for
1-25 sale, including in a sale, bartering, trading, delivering,
1-26 consigning, leasing, possessing with intent to sell, or disposing
1-27 of in any commercial manner.
1-28 (11) [(10)] "Wholesaler" means a person located
1-29 outside this state who on his own account sells, distributes, or
1-30 jobs into this state to another for the purpose of resale bedding
1-31 or filling material to be used in bedding. The term does not
1-32 include an affiliate or subsidiary if the ownership and the name of
1-33 the affiliate or subsidiary are the same as the manufacturer, and
1-34 the affiliate or subsidiary is the exclusive sales outlet for the
1-35 manufacturer.
1-36 SECTION 2. Section 345.003, Health and Safety Code, is
1-37 amended to read as follows:
1-38 Sec. 345.003. PAYMENT TO DEPARTMENT. Money [from the sale
1-39 of stamps, and other money] collected in the administration of this
1-40 chapter[,] is payable to the department.
1-41 SECTION 3. Subchapter A, Chapter 345, Health and Safety
1-42 Code, is amended by adding Sections 345.0055 and 345.007 to read as
1-43 follows:
1-44 Sec. 345.0055. MATERIAL USED IN BEDDING. (a) The
1-45 department may adopt rules relating to material used in new or
1-46 renovated bedding, including rules:
1-47 (1) requiring the use of burn resistant material; and
1-48 (2) prohibiting or restricting the use of secondhand
1-49 or recycled material.
1-50 (b) Rules adopted under this section must be consistent with
1-51 any applicable federal law or regulation.
1-52 Sec. 345.007. ADVISORY COMMISSION. The Texas Board of
1-53 Health may appoint an advisory commission composed of
1-54 representatives of consumers and the bedding industry to assist the
1-55 board in implementing this chapter.
1-56 SECTION 4. Subchapter B, Chapter 345, Health and Safety
1-57 Code, is amended to read as follows:
1-58 SUBCHAPTER B. LABELS [TAGS]
1-59 Sec. 345.021. LABEL [TAG] REQUIRED. (a) A person may not
1-60 manufacture, repair, renovate, or sell bedding unless a label [tag]
1-61 that conforms to this subchapter is:
1-62 (1) securely attached to the bedding at the location
1-63 and by a method approved by the department; and
1-64 (2) [is] clearly visible.
2-1 (b) The label [tag] must be [white and] made of substantial
2-2 cloth or a substance of equal quality.
2-3 (c) The information required on a label [tag] by this
2-4 chapter must be in English. The department may authorize or
2-5 require the use of a language in addition to English on the label
2-6 or on an additional separate label.
2-7 Sec. 345.022. LABELS [TAGS] ON BEDDING MADE OF NEW OR
2-8 SECONDHAND MATERIAL. (a) A label [tag] required under this
2-9 section shall be attached at the factory in which the bedding is
2-10 manufactured.
2-11 (b) A label [tag] attached to bedding wholly manufactured
2-12 from new material must be at least six square inches and state,
2-13 plainly stamped or printed in [black] ink:
2-14 (1) "All New Material" in lettering at least
2-15 one-eighth inch high;
2-16 (2) the kind and grade of each material used in the
2-17 filling and, if more than one kind or grade of material is used,
2-18 the percentage, in descending order, by weight of each material;
2-19 and
2-20 (3) the manufacturer's permit number assigned by the
2-21 department.
2-22 (c) A label [tag] attached to bedding any part of which is
2-23 manufactured from secondhand or recycled material, other than
2-24 bedding reworked, repaired, or renovated for the owner for the
2-25 owner's personal use, must be at least 12 square inches and state,
2-26 plainly stamped or printed in [red] ink:
2-27 (1) "Secondhand or Recycled Material" in lettering at
2-28 least one-fourth inch high; and
2-29 (2) the manufacturer's permit number assigned by the
2-30 department.
2-31 (d) A label [tag] attached to bedding renovated, reworked,
2-32 or repaired for the owner for the owner's personal use and from the
2-33 owner's material that is in whole or in part secondhand must be at
2-34 least six square inches and state, plainly stamped or printed in
2-35 [black] ink:
2-36 (1) "Not for Sale, Owner's Own Material which is
2-37 Secondhand Material" in lettering at least one-eighth inch high;
2-38 (2) the name and address of the owner; and
2-39 (3) the manufacturer's permit number assigned by the
2-40 department.
2-41 (e) A term used on a label [tag] required by this section to
2-42 describe kinds and grades of material used in filling must conform
2-43 to those defined in the department's rules, and a trade or
2-44 substitute term may not be used.
2-45 (f) The department may adopt rules that:
2-46 (1) require that the label state conformity with burn
2-47 resistant material requirements or identify any chemical treatment
2-48 applied to the bedding; and
2-49 (2) exempt from the requirements of this section a
2-50 custom upholstery business that does not repair or renovate bedding
2-51 for resale.
2-52 Sec. 345.023. FALSE OR MISLEADING STATEMENT PROHIBITED. A
2-53 person may not make a false or misleading statement on a label
2-54 [tag] required by Section 345.022.
2-55 Sec. 345.024. GERMICIDAL TREATMENT OF BEDDING AND MATERIALS.
2-56 (a) Except as provided by Subsection (b), a person may not sell
2-57 secondhand bedding or bedding manufactured in whole or in part from
2-58 secondhand or recycled material unless the bedding has been
2-59 germicidally treated and cleaned by a method approved by the
2-60 department.
2-61 (b) An upholstered sofa bed, reclining chair, or studio
2-62 couch shall be germicidally treated and cleaned only when required
2-63 by department rules.
2-64 (c) A person may not use in the manufacture, repair, or
2-65 renovation of bedding a material that has not been cleaned and
2-66 germicidally treated by a process or treatment approved by the
2-67 department if the material:
2-68 (1) has been used by a person with a communicable
2-69 disease; or
3-1 (2) is filthy, oily, stained, or harbors loathsome
3-2 insects or pathogenic organisms [bacteria].
3-3 (d) A person may not sell material or bedding requiring
3-4 germicidal treatment under this section unless the person applying
3-5 the germicidal treatment securely attaches by a method approved by
3-6 the department a label [tag] that is at least 12 square inches and
3-7 contains, plainly printed in [black] ink:
3-8 (1) a statement that the article or material has been
3-9 germicidally treated by a method approved by the department;
3-10 (2) a statement of the method of germicidal treatment
3-11 applied;
3-12 (3) the date [lot number and the tag number of] the
3-13 article was germicidally treated;
3-14 (4) the name and address of the person for whom the
3-15 article was germicidally treated; and
3-16 (5) the permit number of the person applying the
3-17 germicidal treatment.
3-18 Sec. 345.025. [TAG,] LABEL[, OR MARKING] REQUIRED ON [BY
3-19 PROCESSOR OF] FILLING MATERIAL. A processor shall identify each
3-20 item of material to be used for filling bedding by affixing to the
3-21 filling material a label as required by department rules [shipment
3-22 or delivery, however contained, of processed filling material used
3-23 for filling bedding by affixing to the bedding in a conspicuous
3-24 place a tag, label, or indelible marking that clearly indicates:]
3-25 [(1) the kind of material;]
3-26 [(2) whether the material is new or secondhand; and]
3-27 [(3) the permit number of the processor].
3-28 Sec. 345.026. REMOVAL, DEFACEMENT, OR ALTERATION. A person
3-29 may not remove, deface, or alter, or cause the removal, defacing,
3-30 or alteration of, a label [tag] or a statement on the label [tag]
3-31 to defeat a provision of this chapter.
3-32 Sec. 345.027. COLOR OF LABEL AND LETTERING. The department
3-33 may adopt rules governing the color of label required under this
3-34 subchapter and the color of the lettering on the label [DEFACEMENT
3-35 OF TAG BY STAMP. A tag is considered to be defaced if a stamp
3-36 required by Subchapter D is placed over any lettering on the tag].
3-37 Sec. 345.028. APPLICATION TO RECYCLED MATERIAL.
3-38 Notwithstanding any other provision of this subchapter, this
3-39 subchapter applies to bedding manufactured, repaired, or renovated
3-40 in whole or in part from recycled materials only to the extent
3-41 required by department rules.
3-42 SECTION 5. Section 345.041, Health and Safety Code, is
3-43 amended by adding Subsection (c) to read as follows:
3-44 (c) The Texas Board of Health by rule may exempt from the
3-45 permit requirement of this section a custom upholstery business
3-46 that does not repair or renovate bedding for resale.
3-47 SECTION 6. Section 345.043, Health and Safety Code, is
3-48 amended to read as follows:
3-49 Sec. 345.043. FEES; EXPIRATION. (a) The Texas Board of
3-50 Health shall set the fees [fee] for an initial permit issued under
3-51 this chapter and for renewal of a permit issued under this chapter
3-52 in amounts reasonable and necessary to defray the cost of
3-53 administering this chapter [is $15].
3-54 (b) A fee collected under this chapter shall be deposited to
3-55 a special account in the state treasury. Money in the account may
3-56 be appropriated only to the department to administer and enforce
3-57 this chapter.
3-58 (c) A permit expires one year after the date of issuance.
3-59 [(c) The renewal fee for a permit is $10.]
3-60 SECTION 7. Subchapter C, Chapter 345, Health and Safety
3-61 Code, is amended by adding Sections 345.0435 and 345.0436 to read
3-62 as follows:
3-63 Sec. 345.0435. ADOPTION OF RULES; MINIMUM STANDARDS.
3-64 (a) The Texas Board of Health shall adopt rules necessary to
3-65 implement this subchapter, including requirements for the issuance,
3-66 renewal, denial, suspension, and revocation of a permit issued
3-67 under this subchapter.
3-68 (b) The rules must contain minimum standards to protect the
3-69 health and safety of the public.
4-1 Sec. 345.0436. SUBMISSION OF PRODUCT TEST RESULTS OR SAMPLE.
4-2 In conjunction with the issuance or renewal of a permit under this
4-3 subchapter, the department may require the applicant or permit
4-4 holder to submit:
4-5 (1) a product sample; or
4-6 (2) the results of tests conducted on the product as
4-7 required by the department.
4-8 SECTION 8. Section 345.087, Health and Safety Code, is
4-9 amended to read as follows:
4-10 Sec. 345.087. PROHIBITED ACTS; CRIMINAL OFFENSE. (a) A
4-11 person commits an offense if a person:
4-12 (1) manufactures, repairs, or renovates:
4-13 (A) bedding using material in violation of rules
4-14 adopted under Section 345.0055;
4-15 (B) bedding or batting in violation of Section
4-16 345.005;
4-17 (C) bedding using material in violation of
4-18 Section 345.024; or
4-19 (D) bedding that does not conform to the label
4-20 requirements of Subchapter B;
4-21 (2) introduces or delivers for introduction into
4-22 commerce:
4-23 (A) bedding or batting manufactured, repaired,
4-24 or renovated in violation of Section 345.005, 345.0055, or 345.024;
4-25 (B) bedding that does not conform to the label
4-26 requirements of Subchapter B; or
4-27 (C) bedding or material the sale of which is
4-28 prohibited as provided by Section 345.084;
4-29 (3) receives in commerce:
4-30 (A) bedding or batting manufactured, repaired,
4-31 or renovated in violation of Section 345.005, 345.0055, or 345.024;
4-32 (B) bedding that does not conform to the label
4-33 requirements of Subchapter B; or
4-34 (C) bedding or material the sale of which is
4-35 prohibited as provided by Section 345.084; or
4-36 (4) violates Section 345.041, 345.042, or any other
4-37 provision of this chapter or a rule adopted under this chapter.
4-38 (b) An offense under this section is a Class A misdemeanor
4-39 [punishable by a fine of not less than $50 or more than $200].
4-40 (c) In a criminal proceeding under Subsection (a)(1), (2),
4-41 or (3), it is not necessary to prove intent, knowledge,
4-42 recklessness, or criminal negligence.
4-43 (d) It is a defense to prosecution under Subsection (a)(2)
4-44 or (3) that the person acted in good faith and was not the person
4-45 who manufactured, repaired, or renovated the article. This
4-46 subsection does not apply unless the person furnishes, on request
4-47 of the department or a local health authority, the name and address
4-48 of the person from whom the article was received and copies of any
4-49 documents relating to receipt of the article.
4-50 SECTION 9. Subchapter D, Chapter 345, Health and Safety
4-51 Code, is repealed, Subchapter E, Chapter 345, Health and Safety
4-52 Code, is redesignated as Subchapter D, Chapter 345, Health and
4-53 Safety Code, and the heading of Subchapter E, Chapter 345, Health
4-54 and Safety Code, is amended to read as follows:
4-55 SUBCHAPTER D [E]. GENERAL ENFORCEMENT; CRIMINAL OFFENSE
4-56 SECTION 10. Chapter 345, Health and Safety Code, is amended
4-57 by adding new Subchapters E and F to read as follows:
4-58 SUBCHAPTER E. ADMINISTRATIVE OR CIVIL PENALTY; INJUNCTION
4-59 Sec. 345.101. ADMINISTRATIVE PENALTY. (a) The department
4-60 may assess an administrative penalty against a person who violates
4-61 this chapter or a rule adopted under this chapter.
4-62 (b) The penalty may not exceed $25,000 for each violation.
4-63 Each day of a continuing violation constitutes a separate
4-64 violation.
4-65 (c) In determining the amount of an administrative penalty
4-66 assessed under this section, the department shall consider:
4-67 (1) the seriousness of the violation;
4-68 (2) the history of previous violations;
4-69 (3) the amount necessary to deter future violations;
5-1 (4) efforts made to correct the violation; and
5-2 (5) any other matters that justice may require.
5-3 (d) All proceedings for the assessment of an administrative
5-4 penalty under this chapter are subject to Chapter 2001, Government
5-5 Code.
5-6 Sec. 345.102. NOTICE; REQUEST FOR HEARING. (a) If, after
5-7 investigation of a possible violation and the facts surrounding
5-8 that possible violation, the department determines that a violation
5-9 has occurred, the department shall give written notice of the
5-10 violation to the person alleged to have committed the violation.
5-11 The notice must include:
5-12 (1) a brief summary of the alleged violation;
5-13 (2) a statement of the amount of the proposed penalty
5-14 based on the factors set forth in Section 345.101(c); and
5-15 (3) a statement of the person's right to a hearing on
5-16 the occurrence of the violation, the amount of the penalty, or both
5-17 the occurrence of the violation and the amount of the penalty.
5-18 (b) Not later than the 20th day after the date on which the
5-19 notice is received, the person notified may accept the
5-20 determination of the department made under this section, including
5-21 the proposed penalty, or may make a written request for a hearing
5-22 on that determination.
5-23 (c) If the person notified of the violation accepts the
5-24 determination of the department or if the person fails to respond
5-25 in a timely manner to the notice, the commissioner of public health
5-26 or the commissioner's designee shall issue an order approving the
5-27 determination and ordering that the person pay the proposed
5-28 penalty.
5-29 Sec. 345.103. HEARING; ORDER. (a) If the person notified
5-30 requests a hearing, the department shall:
5-31 (1) set a hearing;
5-32 (2) give written notice of the hearing to the person;
5-33 and
5-34 (3) designate a hearings examiner to conduct the
5-35 hearing.
5-36 (b) The hearings examiner shall make findings of fact and
5-37 conclusions of law and shall promptly issue to the commissioner of
5-38 public health or the commissioner's designee a proposal for
5-39 decision as to the occurrence of the violation and a recommendation
5-40 as to the amount of the proposed penalty if a penalty is determined
5-41 to be warranted.
5-42 (c) Based on the findings of fact and conclusions of law and
5-43 the recommendations of the hearings examiner, the commissioner of
5-44 public health or the commissioner's designee by order may find that
5-45 a violation has occurred and may assess a penalty or may find that
5-46 no violation has occurred.
5-47 Sec. 345.104. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
5-48 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
5-49 the order under Section 345.103(c) to the person alleged to have
5-50 committed the violation. The notice must include:
5-51 (1) separate statements of the findings of fact and
5-52 conclusions of law;
5-53 (2) the amount of any penalty assessed; and
5-54 (3) a statement of the right of the person to judicial
5-55 review of the order.
5-56 (b) Not later than the 30th day after the date on which the
5-57 decision is final as provided by Chapter 2001, Government Code, the
5-58 person shall:
5-59 (1) pay the penalty;
5-60 (2) pay the penalty and file a petition for judicial
5-61 review contesting the occurrence of the violation, the amount of
5-62 the penalty, or both the occurrence of the violation and the amount
5-63 of the penalty; or
5-64 (3) without paying the penalty, file a petition for
5-65 judicial review contesting the occurrence of the violation, the
5-66 amount of the penalty, or both the occurrence of the violation and
5-67 the amount of the penalty.
5-68 (c) Within the 30-day period, a person who acts under
5-69 Subsection (b)(3) may:
6-1 (1) stay enforcement of the penalty by:
6-2 (A) paying the penalty to the court for
6-3 placement in an escrow account; or
6-4 (B) giving to the court a supersedeas bond that
6-5 is approved by the court for the amount of the penalty and that is
6-6 effective until all judicial review of the order is final; or
6-7 (2) request the court to stay enforcement of the
6-8 penalty by:
6-9 (A) filing with the court a sworn affidavit of
6-10 the person stating that the person is financially unable to pay the
6-11 amount of the penalty and is financially unable to give the
6-12 supersedeas bond; and
6-13 (B) giving a copy of the affidavit to the
6-14 department by certified mail.
6-15 (d) If the department receives a copy of an affidavit under
6-16 Subsection (c)(2), the department may file with the court, within
6-17 five days after the date the copy is received, a contest to the
6-18 affidavit. The court shall hold a hearing on the facts alleged in
6-19 the affidavit as soon as practicable and shall stay the enforcement
6-20 of the penalty on finding that the alleged facts are true. The
6-21 person who files an affidavit has the burden of proving that the
6-22 person is financially unable to pay the penalty and to give a
6-23 supersedeas bond.
6-24 (e) If the person does not pay the penalty and the
6-25 enforcement of the penalty is not stayed, the department may refer
6-26 the matter to the attorney general for collection of the penalty.
6-27 (f) Judicial review of the order:
6-28 (1) is instituted by filing a petition as provided by
6-29 Subchapter G, Chapter 2001, Government Code; and
6-30 (2) is under the substantial evidence rule.
6-31 (g) If the court sustains the occurrence of the violation,
6-32 the court may uphold or reduce the amount of the penalty and order
6-33 the person to pay the full or reduced amount of the penalty. If
6-34 the court does not sustain the occurrence of the violation, the
6-35 court shall order that no penalty is owed.
6-36 (h) When the judgment of the court becomes final, the court
6-37 shall proceed under this subsection. If the person paid the amount
6-38 of the penalty under Subsection (b)(2) and if that amount is
6-39 reduced or is not upheld by the court, the court shall order that
6-40 the department pay the appropriate amount plus accrued interest to
6-41 the person. The rate of the interest is the rate charged on loans
6-42 to depository institutions by the New York Federal Reserve Bank,
6-43 and the interest shall be paid for the period beginning on the date
6-44 the penalty was paid and ending on the date the penalty is
6-45 remitted. If the person paid the penalty under Subsection
6-46 (c)(1)(A), or gave a supersedeas bond, and if the amount of the
6-47 penalty is not upheld by the court, the court shall order the
6-48 release of the escrow account or bond. If the person paid the
6-49 penalty under Subsection (c)(1)(A) and the amount of the penalty is
6-50 reduced, the court shall order that the amount of the penalty be
6-51 paid to the department from the escrow account and that the
6-52 remainder of the account be released. If the person gave a
6-53 supersedeas bond and if the amount of the penalty is reduced, the
6-54 court shall order the release of the bond after the person pays the
6-55 amount.
6-56 Sec. 345.105. PENALTY DEPOSITED TO STATE TREASURY. An
6-57 administrative penalty collected under this subchapter shall be
6-58 deposited in the state treasury to the credit of the general
6-59 revenue fund.
6-60 Sec. 345.106. INJUNCTION. (a) At the request of the
6-61 commissioner of public health, the attorney general may petition
6-62 the district court for a temporary restraining order to restrain a
6-63 continuing violation of this chapter or a threat of a continuing
6-64 violation of this chapter if the commissioner of public health
6-65 finds that:
6-66 (1) a person has violated, is violating, or is
6-67 threatening to violate this chapter; and
6-68 (2) the violation or threatened violation creates an
6-69 immediate threat to the health and safety of the public.
7-1 (b) A district court, on petition under this section and on
7-2 a finding by the court that a person is violating or threatening to
7-3 violate this chapter, shall grant any injunctive relief warranted
7-4 by the facts.
7-5 (c) Venue for a suit brought under this section is in the
7-6 county in which the violation or threat of violation is alleged to
7-7 have occurred or in Travis County.
7-8 Sec. 345.107. CIVIL PENALTY. (a) At the request of the
7-9 commissioner of public health, the attorney general shall institute
7-10 an action in district court to collect a civil penalty from a
7-11 person who has violated this chapter.
7-12 (b) The civil penalty may not exceed $25,000 a day for each
7-13 violation. Each day of violation constitutes a separate violation
7-14 for purposes of the penalty assessment.
7-15 (c) The court shall consider the following in determining
7-16 the amount of the penalty:
7-17 (1) the seriousness of the violation;
7-18 (2) the history of previous violations;
7-19 (3) the amount necessary to deter future violations;
7-20 (4) efforts made to correct the violation; and
7-21 (5) any other matters that justice may require.
7-22 (d) Venue for a suit brought under this section is in the
7-23 county in which the violation occurred or in Travis County.
7-24 Sec. 345.108. RECOVERY OF COSTS. (a) The department may
7-25 assess reasonable expenses and costs against a person in an
7-26 administrative hearing if, as a result of the hearing, the person's
7-27 permit is denied, suspended, or revoked or if administrative
7-28 penalties are assessed against the person. The person shall pay
7-29 expenses and costs assessed under this subsection not later than
7-30 the 30th day after the date on which the order issued by the
7-31 commissioner of public health or the commissioner's designee
7-32 requiring the payment of expenses and costs is final. The
7-33 department may refer the matter to the attorney general for
7-34 collection of the expenses and costs.
7-35 (b) If the attorney general brings an action against a
7-36 person under Section 345.106 or 345.107 or to enforce an
7-37 administrative penalty assessed under this subchapter and an
7-38 injunction is granted against the person or the person is found
7-39 liable for a civil or administrative penalty, the attorney general
7-40 may recover, on behalf of the attorney general and the department,
7-41 reasonable expenses and costs.
7-42 (c) For purposes of this section, "reasonable expenses and
7-43 costs" include expenses incurred by the department and the attorney
7-44 general in the investigation, initiation, or prosecution of an
7-45 action, including reasonable investigative costs, court costs,
7-46 attorney's fees, witness fees, and deposition expenses.
7-47 (Sections 345.109-345.130 reserved for expansion
7-48 SUBCHAPTER F. DETENTION OR EMBARGO OF BEDDING
7-49 Sec. 345.131. DEFINITIONS. In this subchapter:
7-50 (1) "Authorized agent" means an employee of the
7-51 department who is designated by the commissioner of public health
7-52 to enforce the provisions of this chapter.
7-53 (2) "Detained or embargoed bedding" means bedding that
7-54 has been detained or embargoed under Section 345.132.
7-55 Sec. 345.132. DETAINED OR EMBARGOED BEDDING. (a) The
7-56 commissioner of public health or an authorized agent may detain or
7-57 embargo bedding under this section if the commissioner or the
7-58 authorized agent finds or has probable cause to believe that the
7-59 article violates this chapter or a rule or standard adopted under
7-60 this chapter.
7-61 (b) The commissioner of public health or an authorized agent
7-62 shall affix to detained or embargoed bedding a tag or other
7-63 appropriate marking that gives notice that:
7-64 (1) the bedding violates or is suspected of violating
7-65 this chapter or a rule or standard adopted under this chapter; and
7-66 (2) the bedding has been detained or embargoed.
7-67 (c) The tag or marking on detained or embargoed bedding must
7-68 warn all persons not to use the bedding, remove the bedding from
7-69 the premises, or dispose of the bedding by sale or otherwise until
8-1 permission for use, removal, or disposal is given by the
8-2 commissioner of public health, the authorized agent, or a court.
8-3 (d) A person may not use detained or embargoed bedding,
8-4 remove detained or embargoed bedding from the premises, or dispose
8-5 of detained or embargoed bedding by sale or otherwise without
8-6 permission of the commissioner of public health, the authorized
8-7 agent, or a court.
8-8 (e) The commissioner of public health or an authorized agent
8-9 shall remove the tag or other marking from detained or embargoed
8-10 bedding if the commissioner or an authorized agent finds that the
8-11 bedding does not violate this chapter or a rule or standard adopted
8-12 under this chapter.
8-13 Sec. 345.133. REMOVAL ORDER FOR DETAINED OR EMBARGOED
8-14 BEDDING. (a) If the claimant of the detained or embargoed bedding
8-15 or the claimant's agent fails or refuses to transfer the bedding to
8-16 a secure place after the tag or other appropriate marking has been
8-17 affixed as provided by Section 345.132, the commissioner of public
8-18 health or an authorized agent may order the transfer of the bedding
8-19 to one or more secure storage areas to prevent unauthorized use,
8-20 removal, or disposal.
8-21 (b) The commissioner of public health or an authorized agent
8-22 may provide for the transfer of the bedding if the claimant of the
8-23 bedding or the claimant's agent does not carry out the transfer
8-24 order in a timely manner.
8-25 (c) The claimant of the bedding or the claimant's agent
8-26 shall pay the costs of the transfer, and the costs of any transfer
8-27 made under Subsection (a) or (b) shall be assessed against the
8-28 claimant of the bedding or the claimant's agent.
8-29 (d) The commissioner of public health may request the
8-30 attorney general to bring an action in the district court in Travis
8-31 County to recover the costs of the transfer. In a judgment in
8-32 favor of the state, the court may award costs, attorney's fees,
8-33 court costs, and interest from the time the expense was incurred
8-34 through the date the department is reimbursed.
8-35 Sec. 345.134. CONDEMNATION. An action for the condemnation
8-36 of bedding may be brought before a court in whose jurisdiction the
8-37 bedding is located, detained, or embargoed if the bedding violates
8-38 this chapter or a rule or standard adopted under this chapter.
8-39 Sec. 345.135. RECALL ORDERS. (a) In conjunction with the
8-40 detention or embargo of bedding under this subchapter, the
8-41 commissioner of public health may order bedding to be recalled from
8-42 commerce.
8-43 (b) The commissioner of public health's recall order may
8-44 require the bedding to be removed to one or more secure areas
8-45 approved by the commissioner or an authorized agent.
8-46 (c) The recall order must be in writing and signed by the
8-47 commissioner of public health.
8-48 (d) The recall order may be issued before or in conjunction
8-49 with the affixing of the tag or other appropriate marking as
8-50 provided by Section 345.132(b).
8-51 (e) The recall order is effective until the order:
8-52 (1) expires on its own terms;
8-53 (2) is withdrawn by the commissioner of public health;
8-54 or
8-55 (3) is reversed by a court in an order denying
8-56 condemnation under Section 345.134.
8-57 (f) The claimant of the bedding or the claimant's agent
8-58 shall pay the costs of the removal and storage of the bedding
8-59 removed.
8-60 (g) If the claimant or the claimant's agent fails or refuses
8-61 to carry out the recall order in a timely manner, the commissioner
8-62 of public health may provide for the recall of the bedding. The
8-63 costs of the recall shall be assessed against the claimant of the
8-64 bedding or the claimant's agent.
8-65 (h) The commissioner of public health may request the
8-66 attorney general to bring an action in the district court of Travis
8-67 County to recover the costs of the recall. In a judgment in favor
8-68 of the state, the court may award costs, attorney's fees, court
8-69 costs, and interest from the time the expense was incurred through
9-1 the date the department is reimbursed.
9-2 Sec. 345.136. DESTRUCTION OF BEDDING. (a) A court shall
9-3 order the destruction of detained or embargoed bedding if the court
9-4 finds that the bedding violates this chapter or a rule or standard
9-5 adopted under this chapter.
9-6 (b) After entry of the court's order, an authorized agent
9-7 shall supervise the destruction of the bedding.
9-8 (c) The claimant of the article shall pay the cost of the
9-9 destruction of the bedding.
9-10 (d) The court shall tax against the claimant of the bedding
9-11 or the claimant's agent all court costs and fees and storage and
9-12 other proper expenses.
9-13 Sec. 345.137. CORRECTION BY PROPER LABELING OR PROCESSING.
9-14 (a) A court may order the delivery of detained or embargoed
9-15 bedding that violates this chapter or a rule or standard adopted
9-16 under this chapter to the claimant of the bedding for labeling or
9-17 processing under the supervision of an agent of the commissioner of
9-18 public health or an authorized agent if:
9-19 (1) the decree has been entered in the suit relating
9-20 to the detained or embargoed bedding;
9-21 (2) the claimant has paid the costs, fees, and
9-22 expenses of the suit;
9-23 (3) the violation can be corrected by proper labeling
9-24 or processing; and
9-25 (4) a good and sufficient bond, conditioned on the
9-26 correction of the violation by proper labeling or processing, has
9-27 been executed.
9-28 (b) The claimant shall pay the costs of the supervision of
9-29 the labeling or processing by the agent of the commissioner of
9-30 public health or an authorized agent.
9-31 (c) The court shall order that the bedding be returned to
9-32 the claimant and the bond discharged on the representation to the
9-33 court by the commissioner of public health or an authorized agent
9-34 that the article no longer violates this chapter or a rule or
9-35 standard adopted under this chapter and that the expenses of the
9-36 supervision are paid.
9-37 SECTION 11. This Act takes effect September 1, 1997.
9-38 SECTION 12. The change in law made by Section 7 of this Act
9-39 applies only to the issuance or renewal of a permit under
9-40 Subchapter C, Chapter 345, Health and Safety Code, on or after
9-41 January 1, 1998.
9-42 SECTION 13. (a) The change in law made by Section 8 of this
9-43 Act applies only to the punishment for an offense committed on or
9-44 after the effective date of this Act. For purposes of this
9-45 section, an offense is committed before the effective date of this
9-46 Act if any element of the offense occurs before the effective date.
9-47 (b) An offense committed before the effective date of this
9-48 Act is covered by the law in effect when the offense was committed,
9-49 and the former law is continued in effect for this purpose.
9-50 SECTION 14. The change in law made by Section 10 of this Act
9-51 applies only to assessment of an administrative or civil penalty
9-52 for conduct occurring on or after the effective date of this Act.
9-53 SECTION 15. The importance of this legislation and the
9-54 crowded condition of the calendars in both houses create an
9-55 emergency and an imperative public necessity that the
9-56 constitutional rule requiring bills to be read on three several
9-57 days in each house be suspended, and this rule is hereby suspended.
9-58 * * * * *