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                                  * * * * *