By: Brown, Ellis S.B. No. 1355
A BILL TO BE ENTITLED
1-1 relating to the regulation of retail stores; providing an
1-2 administrative penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 403, Government Code, is amended by
1-5 adding Subchapter N to read as follows:
1-6 SUBCHAPTER N. MISCELLANEOUS DUTIES OF COMPTROLLER
1-7 Sec. 403.321. INTERAGENCY TASK FORCE ON TEXAS RETAIL FOOD
1-8 STORE REGULATION. (a) An interagency task force is created to
1-9 advise and assist the comptroller on coordinating state agency
1-10 regulation of retail food stores.
1-11 (b) The office of the comptroller is the lead agency for the
1-12 task force and shall administer the activities of the task force.
1-13 (c) The task force is composed of a representative of:
1-14 (1) the Department of Agriculture, appointed by the
1-15 commissioner of agriculture;
1-16 (2) the Texas Department of Commerce, appointed by the
1-17 executive director of the department;
1-18 (3) the Texas Department of Health, appointed by the
1-19 commissioner of public health;
1-20 (4) the Parks and Wildlife Department, appointed by
1-21 the executive director of the department;
1-22 (5) the comptroller, appointed by the comptroller;
1-23 (6) the Texas Alcoholic Beverage Commission, appointed
2-1 by the administrator of the commission;
2-2 (7) the Texas Retailers Association, appointed by the
2-4 (8) the Texas Food Industry Association, appointed by
2-5 the association;
2-6 (9) the Texas Petroleum Marketers and Convenience
2-7 Store Association, appointed by the association;
2-8 (10) a rural local health department, appointed by the
2-9 governor; and
2-10 (11) an urban local health department, appointed by
2-11 the governor.
2-12 (d) A licensing and regulatory agency shall make available
2-13 to the task force information considered necessary by the task
2-15 (e) The task force may invite representatives of state
2-16 agencies, consumer groups, or business groups to participate in the
2-17 activities of the task force.
2-18 (f) The task force shall:
2-19 (1) elect a presiding officer and an assistant
2-20 presiding officer;
2-21 (2) study the regulation of retail food stores; and
2-22 (3) report to the legislature regarding the task
2-23 force's study of the regulation of retail food stores.
2-24 (g) The task force shall consider and include in the report
2-25 required by Subsection (f)(3) the task force's recommendations
3-2 (1) state agencies' procedures for:
3-3 (A) issuing original and renewal licenses and
3-4 permits; and
3-5 (B) collecting and disbursing fees;
3-6 (2) opportunities to consolidate state agencies'
3-7 licensing and fee collection activities;
3-8 (3) integration of uniform product code price scanner
3-9 inspection into the sales tax audit process;
3-10 (4) establishment of a consolidated retail food store
3-11 application and licensing program to administer all licenses
3-12 related to retail food stores;
3-13 (5) reduction of paperwork;
3-14 (6) reduction of any amount of time that scales and
3-15 other equipment are out of service;
3-16 (7) continuation of adequate consumer protection;
3-17 (8) creation of private sector employment
3-19 (9) opportunities to eliminate the Department of
3-20 Agriculture's responsibilities for the inspection of eggs that are
3-21 sold or offered for sale at retail in this state while ensuring
3-22 that an egg producer in another state that sells eggs directly to a
3-23 retail egg dealer in this state is held to the same standards as an
3-24 egg producer in this state; and
3-25 (10) any other regulatory matter pertaining to a
4-1 retail food store that a majority of the members of the task force
4-2 considers advisable.
4-3 (h) This section expires June 1, 1999.
4-4 SECTION 2. Section 13.002, Agriculture Code, is amended by
4-5 amending Subsection (a) and adding Subsection (c) to read as
4-7 (a) Except as provided by Subsection (c), the [
4-8 department shall enforce the provisions of this chapter and shall
4-9 supervise all weights and measures sold or offered for sale in this
4-10 state. The department may purchase apparatus as necessary for the
4-11 administration of this chapter.
4-12 (c) The Texas State Board of Pharmacy shall enforce the
4-13 provisions of this chapter relating to the compounding of drugs in
4-14 pharmacies and shall supervise all weights and measures sold,
4-15 offered for sale, or used in this state for the compounding of
4-16 drugs in pharmacies.
4-17 SECTION 3. Subchapter H, Chapter 13, Agriculture Code, is
4-18 amended by adding Section 13.4041 to read as follows:
4-19 Sec. 13.4041. BUSINESS OPPORTUNITY INFORMATION. The Texas
4-20 Department of Commerce shall cooperate with the department to:
4-21 (1) disseminate information regarding business
4-22 opportunities available to a person who performs tests of the
4-23 accuracy of weighing or measuring devices in this state; and
4-24 (2) develop markets for providers of testing services
4-25 that test the accuracy of weighing or measuring devices in this
5-2 SECTION 4. Effective September 1, 1999, Subchapter H,
5-3 Chapter 13, Agriculture Code, is amended by adding Section 13.4042
5-4 to read as follows:
5-5 Sec. 13.4042. PRIVATE TESTING REQUIREMENT. (a) Employees
5-6 of the department or, by interagency contract, employees of other
5-7 state agencies acting on behalf of the department may not perform
5-8 more than 50 percent of the inspections or tests required by law of
5-9 the accuracy of weighing or measuring devices in this state.
5-10 (b) Subsection (a) does not prohibit an agent of the
5-11 department from performing an inspection or a test of the accuracy
5-12 of a weighing or measuring device in this state.
5-13 (c) This section expires September 1, 2001.
5-14 SECTION 5. Effective September 1, 2001, Subchapter H,
5-15 Chapter 13, Agriculture Code, is amended by adding Section 13.4043
5-16 to read as follows:
5-17 Sec. 13.4043. PRIVATE TESTING REQUIREMENT. (a) Employees
5-18 of the department or, by interagency contract, employees of other
5-19 state agencies acting on behalf of the department may not perform
5-20 more than 25 percent of the inspections or tests required by law of
5-21 the accuracy of weighing or measuring devices.
5-22 (b) Subsection (a) does not prohibit an agent of the
5-23 department from performing an inspection or test of the accuracy of
5-24 a weighing or measuring device in this state.
5-25 SECTION 6. Subchapter A, Chapter 47, Parks and Wildlife
6-1 Code, is amended by adding Section 47.0113 to read as follows:
6-2 Sec. 47.0113. MEMORANDUM OF AGREEMENT. (a) The department
6-3 shall initiate negotiations for and enter into a memorandum of
6-4 agreement with the Texas Department of Health to consolidate the
6-5 license and permit application process for retail food stores that
6-6 sell aquatic products.
6-7 (b) The memorandum must be adopted by the Texas Board of
6-8 Health and the commission.
6-9 (c) After the commission and the Texas Board of Health have
6-10 adopted a memorandum of agreement, the department shall publish the
6-11 memorandum of agreement in the Texas Register.
6-12 (d) The memorandum of agreement must provide that the Texas
6-13 Department of Health shall:
6-14 (1) collect information to identify each retail food
6-15 store that sells aquatic products as a part of a food retailing
6-16 business and provide that information to the department; and
6-17 (2) perform routine inspections regarding the source
6-18 of aquatic products.
6-19 SECTION 7. Chapter 1033, Acts of the 71st Legislature,
6-20 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
6-21 Statutes), is amended to read as follows:
6-22 Sec. 1. Definitions. In this Act:
6-23 (1) "Automotive fuel rating" has the meaning assigned
6-24 by 15 U.S.C. Section 2821.
6-25 (2) "Dealer" has the meaning assigned by Section
7-1 153.001, Tax Code [ means a person who is the operator of a service
7-2 station or other retail outlet and who delivers motor fuel into the
7-3 fuel tanks of motor vehicles or motor boats].
7-4 (3) "Distributor" has the meaning assigned by Section
7-5 153.001, Tax Code.
7-6 (4) [ (2)] "Motor fuel" has the meaning assigned [ given
7-7 that term] by Section 153.001, Tax Code.
7-8 (5) "Supplier" has the meaning assigned by Section
7-9 153.001, Tax Code.
7-10 Sec. 2. Testing. In order to determine compliance with the
7-11 standards and for the enforcement of rules adopted under Sections
7-12 3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture
7-13 [ comptroller of public accounts or an authorized representative of
7-14 the comptroller, any law enforcement officer at the direction of a
7-15 prosecuting attorney, or the attorney general] may test any motor
7-16 fuel sold in this state, with or without a complaint about the
7-17 fuel. The commissioner may adopt rules relating to the frequency
7-18 of testing of motor fuels. In adopting rules relating to the
7-19 frequency of testing of motor fuels, the commissioner shall
7-20 consider the nature of the violation, history of past violations,
7-21 and funds available as provided by Section 9(e) of this Act.
7-22 Sec. 3. Posting notice of sale of alcohol and motor fuel
7-23 mixture. (a) A [ motor fuel] dealer in this state may not sell or
7-24 offer for sale any motor fuel from a motor fuel pump that is
7-25 supplied by a storage tank into which motor fuel containing ethanol
8-1 in a mixture in which one percent or more of the mixture measured
8-2 by volume is ethanol or into which motor fuel containing methanol
8-3 in a mixture in which one percent or more of the mixture measured
8-4 by volume is methanol has been delivered within the 60-day period
8-5 preceding the day of sale or offer of sale, unless the dealer
8-6 prominently displays on the pump from which the mixture is sold a
8-7 sign that complies with the requirements of Subsection (b) of this
8-9 (b)(1) The sign required under Subsection (a) of this
8-10 section must be displayed on each face of the motor fuel pump on
8-11 which the price of the motor fuel mixture sold from the pump is
8-12 displayed. The sign must state "Contains Ethanol" or "Contains
8-13 Methanol," as applicable. The sign must appear in contrasting
8-14 colors with block letters at least one-half inch in height and
8-15 one-fourth inch in width and shall be displayed in a clear,
8-16 conspicuous, and prominent manner, visible to customers using
8-17 either side of the pump.
8-18 (2) In addition to the requirements of Subsection
8-19 (b)(1) of this section, if a motor fuel pump is supplied by a
8-20 storage tank into which motor fuel containing 10 percent or more
8-21 ethanol by volume or five percent or more methanol by volume has
8-22 been delivered within the 60-day period preceding the day of the
8-23 sale or offer of sale, the sign shall state the percentage of
8-24 ethanol or methanol by volume, to the nearest whole percent, of the
8-25 motor fuel having the highest percentage of ethanol or methanol
9-1 delivered into that storage tank within the 60-day period. This
9-2 subsection does not prohibit the posting of other alcohol or
9-3 additive information, the information and posting being subject to
9-4 regulations by the commissioner of agriculture.
9-5 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
9-6 LOWER THAN RATING POSTED ON PUMP LABEL. A dealer may not sell or
9-7 offer for sale motor fuel from a motor fuel pump if the motor fuel
9-8 has an automotive fuel rating that is lower than the automotive
9-9 fuel rating for that motor fuel posted on the pump.
9-10 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
9-11 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
9-12 may not deliver or transfer motor fuel to a dealer if the fuel has
9-13 an automotive fuel rating that is lower than the certification of
9-14 the automotive fuel rating the distributor or supplier is required
9-15 to make to the motor fuel dealer under federal law.
9-16 Sec. 4. Documentation of motor fuel mixture sales. (a) A
9-17 distributor, supplier, wholesaler, or jobber of motor fuel, as
9-18 those persons are defined by Section 153.001, Tax Code, may not
9-19 make a delivery of motor fuel containing ethanol or methanol if the
9-20 ethanol or methanol in the motor fuel mixture exceeds one percent
9-21 by volume, other than a delivery made into the fuel supply tanks of
9-22 a motor vehicle, to any outlet in this state unless the person
9-23 delivers to the outlet receiving the delivery at the time of the
9-24 delivery of the mixture:
9-25 (1) the sign described in Section 3 of this Act in
10-1 sufficient quantities for the dealer receiving the motor fuel
10-2 mixture to comply with the requirements of this Act; and
10-3 (2) a manifest, bill of sale, bill of lading, or any
10-4 other document evidencing delivery of the motor fuel containing
10-5 ethanol or methanol, which shall include a statement showing the
10-6 percentage of ethanol or methanol contained in the mixture
10-7 delivered, and the types and percentages of associated cosolvents,
10-8 if any, contained in the mixture delivered. The document shall
10-9 also show delivery of the sign or signs, as applicable, required to
10-10 be delivered by this subsection.
10-11 (b) On the request of any motor fuel user, a dealer must
10-12 reveal the percentage of ethanol contained in motor fuel being
10-13 sold, the percentage of methanol contained in motor fuel being
10-14 sold, and, if the motor fuel contains methanol, the types and
10-15 percentages of associated cosolvents contained in the motor fuel
10-16 being sold.
10-17 (c) The commissioner of agriculture [ comptroller] by rule
10-18 may prescribe the form of the statement required by Subsection (a)
10-19 of this section.
10-20 (d) The signs required to be posted by a [ motor fuel] dealer
10-21 under Section 3 of this Act and delivered to a [ motor fuel] dealer
10-22 under this section shall be obtained from the commissioner of
10-23 agriculture [ comptroller].
10-24 (e) If the commissioner of agriculture [ comptroller]
10-25 determines that certain types of motor fuel, such as diesel or
11-1 liquefied petroleum gas, are not sold in this state as mixtures
11-2 with alcohol in sufficient quantities to warrant regulation of
11-3 those deliveries under this Act, the commissioner [ comptroller] may
11-4 limit the application of Section 3 of this Act and this section to
11-5 motor fuels sold in sufficient quantity to warrant regulation.
11-6 Sec. 5. DEALER AND DELIVERY DOCUMENTS. (a) Each [ motor
11-7 fuel] dealer [ in this state] shall keep for one year [ four years] a
11-8 copy of each manifest, bill of sale, bill of lading, or any other
11-9 document required to be delivered to the dealer by Section 4 of
11-10 this Act. During the first 60 days following delivery of a fuel
11-11 mixture covered by this Act, the dealer shall keep at the station
11-12 or retail outlet where the motor fuel was delivered a copy of each
11-13 manifest, bill of sale, bill of lading, or any other document
11-14 required to be delivered to the dealer by Section 4 of this Act.
11-15 Each distributor, supplier, wholesaler, or jobber of motor fuel
11-16 shall keep for one year [ four years] at the principal place of
11-17 business a copy of each manifest, bill of sale, bill of lading, or
11-18 any other document required to be delivered to the dealer by
11-19 Section 4 of this Act. The documents are subject to inspection by
11-20 the commissioner of agriculture [ comptroller or an authorized
11-21 representative of the comptroller, any law enforcement officer, or
11-22 the attorney general].
11-23 (b) The commissioner of agriculture [ comptroller] by rule
11-24 may prescribe the manner of filing documents required to be kept
11-25 under Subsection (a) of this section, and the time, place, and
12-1 manner of inspection of the documents.
12-2 Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF
12-3 AUTOMOTIVE FUEL RATINGS. (a) Each dealer shall keep for at least
12-4 one year a copy of:
12-5 (1) each delivery ticket or letter of certification on
12-6 which the dealer based a posting of the automotive fuel rating of
12-7 motor fuel contained in a motor fuel pump;
12-8 (2) records of any automotive fuel rating
12-9 determination made by the dealer under 16 C.F.R. Part 306, as
12-10 amended; and
12-11 (3) each delivery ticket or letter of certification
12-12 that is required to be delivered to the dealer under 16 C.F.R. Part
12-13 306, as amended.
12-14 (b) Each distributor or supplier shall keep for at least one
12-15 year at the principal place of business a copy of each delivery
12-16 ticket or letter of certification required to be delivered by the
12-17 distributor or supplier to a dealer under 16 C.F.R. Part 306, as
12-19 (c) A document required to be kept under this section is
12-20 subject to inspection by the commissioner of agriculture.
12-21 Sec. 6. CIVIL ACTION. (a) If a [ motor fuel] dealer or a
12-22 distributor, supplier, wholesaler, or jobber of motor fuel violates
12-23 Section 3, 3A, 3B, 4, or 5 of this Act, any motor fuel user who has
12-24 purchased the fuel and who has suffered damages or has a complaint
12-25 about the product may maintain a civil action against the [ motor
13-1 fuel] dealer or the distributor, supplier, wholesaler, or jobber of
13-2 motor fuel. The action may be brought, without regard to any
13-3 specific amount in damages, in the district court in any county in
13-4 which the [ motor fuel] dealer, distributor, supplier, wholesaler,
13-5 or jobber is doing business or in which the [ motor fuel] user
13-7 (b) In any action under this section, the court shall award
13-8 to the motor fuel user who prevails the amount of actual damages
13-9 and grant such equitable relief as the court determines is
13-10 necessary to remedy the effects of the [ motor fuel] dealer's
13-11 violation or the distributor, supplier, wholesaler, or jobber's
13-12 violation of the provisions of Section 3, 3A, 3B, 4, or 5 of this
13-13 Act, including declaratory judgment, permanent injunctive relief,
13-14 and temporary injunctive relief. In addition, the court shall
13-15 award to the motor fuel user who prevails in an action brought
13-16 hereunder court costs and attorney's fees that are reasonable in
13-17 relation to the amount of work expended.
13-18 (c) In addition to the remedies provided in Subsection (b)
13-19 of this section, if the trier of fact finds that a [ the] violation
13-20 of Section 3, 3A, 3B, 4, or 5 of this Act was committed wilfully or
13-21 knowingly by the defendant, the trier of fact shall award not more
13-22 than three times the amount of actual damages.
13-23 (d) A violation of Section 3, 3A, 3B, 4, or 5 of this Act is
13-24 also a deceptive trade practice under Subchapter E, Chapter 17,
13-25 Business & Commerce Code.
14-1 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
14-2 or 5 of this Act shall be commenced and prosecuted within two years
14-3 after the date the cause of action accrued.
14-4 Sec. 7. CIVIL PENALTY. A [ motor fuel] dealer or a
14-5 distributor, supplier, wholesaler, or jobber of motor fuel who
14-6 violates a provision of Section 3, 3A, 3B, 4, [ or] 5, or 5A of this
14-7 Act forfeits to the state a civil penalty of not less than $200 or
14-8 [ $25 nor] more than $10,000 [ $200].
14-9 Sec. 7A. ADMINISTRATIVE PENALTY. (a) The commissioner of
14-10 agriculture may impose an administrative penalty against a person
14-11 licensed or regulated under this Act who violates this Act or a
14-12 rule or order adopted under this Act.
14-13 (b) The penalty for a violation may be in an amount not to
14-14 exceed $500. Each day a violation continues or occurs is a
14-15 separate violation for purposes of imposing a penalty.
14-16 (c) The amount of the penalty shall be based on:
14-17 (1) the seriousness of the violation, including the
14-18 nature, circumstances, extent, and gravity of any prohibited acts,
14-19 and the hazard or potential hazard created to the health, safety,
14-20 or economic welfare of the public;
14-21 (2) the economic harm to property or the environment
14-22 caused by the violation;
14-23 (3) the history of previous violations;
14-24 (4) the amount necessary to deter future violations;
14-25 (5) efforts to correct the violation; and
15-1 (6) any other matter that justice may require.
15-2 (d) An employee of the Department of Agriculture designated
15-3 by the commissioner to act under this section who determines that a
15-4 violation has occurred may issue to the commissioner of agriculture
15-5 a report that states the facts on which the determination is based
15-6 and the designated employee's recommendation on the imposition of a
15-7 penalty, including a recommendation on the amount of the penalty.
15-8 (e) Within 14 days after the date the report is issued, the
15-9 designated employee shall give written notice of the report to the
15-10 person. The notice may be given by certified mail. The notice
15-11 must include a brief summary of the alleged violation and a
15-12 statement of the amount of the recommended penalty and must inform
15-13 the person that the person has a right to a hearing on the
15-14 occurrence of the violation, the amount of the penalty, or both the
15-15 occurrence of the violation and the amount of the penalty.
15-16 (f) Within 20 days after the date the person receives the
15-17 notice, the person in writing may accept the determination and
15-18 recommended penalty of the designated employee or may make a
15-19 written request for a hearing on the occurrence of the violation,
15-20 the amount of the penalty, or both the occurrence of the violation
15-21 and the amount of the penalty.
15-22 (g) If the person accepts the determination and recommended
15-23 penalty of the designated employee, the commissioner of agriculture
15-24 by order shall approve the determination and impose the recommended
16-1 (h) If the person requests a hearing or fails to respond
16-2 timely to the notice, the designated employee shall set a hearing
16-3 and give notice of the hearing to the person. The hearing shall be
16-4 held by an administrative law judge of the State Office of
16-5 Administrative Hearings. The administrative law judge shall make
16-6 findings of fact and conclusions of law and promptly issue to the
16-7 commissioner of agriculture a proposal for a decision about the
16-8 occurrence of the violation and the amount of a proposed penalty.
16-9 Based on the findings of fact, conclusions of law, and proposal for
16-10 a decision, the commissioner of agriculture by order may find that
16-11 a violation has occurred and impose a penalty or may find that no
16-12 violation occurred.
16-13 (i) The notice of the commissioner of agriculture's order
16-14 given to the person under Chapter 2001, Government Code, must
16-15 include a statement of the right of the person to judicial review
16-16 of the order.
16-17 (j) Within 30 days after the date the commissioner of
16-18 agriculture's order becomes final as provided by Section 2001.144,
16-19 Government Code, the person shall:
16-20 (1) pay the amount of the penalty;
16-21 (2) pay the amount of the penalty and file a petition
16-22 for judicial review contesting the occurrence of the violation, the
16-23 amount of the penalty, or both the occurrence of the violation and
16-24 the amount of the penalty; or
16-25 (3) without paying the amount of the penalty, file a
17-1 petition for judicial review contesting the occurrence of the
17-2 violation, the amount of the penalty, or both the occurrence of the
17-3 violation and the amount of the penalty.
17-4 (k) Within the 30-day period, a person who acts under
17-5 Subsection (j)(3) of this section may:
17-6 (1) stay enforcement of the penalty by:
17-7 (A) paying the amount of the penalty to the
17-8 court for placement in an escrow account; or
17-9 (B) giving to the court a supersedeas bond that
17-10 is approved by the court for the amount of the penalty and that is
17-11 effective until all judicial review of the board's order is final;
17-13 (2) request the court to stay enforcement of the
17-14 penalty by:
17-15 (A) filing with the court a sworn affidavit of
17-16 the person stating that the person is financially unable to pay the
17-17 amount of the penalty and is financially unable to give the
17-18 supersedeas bond; and
17-19 (B) giving a copy of the affidavit to the
17-20 designated employee by certified mail.
17-21 (l) A designated employee who receives a copy of an
17-22 affidavit under Subsection (k)(2) of this section may file with the
17-23 court, within five days after the date the copy is received, a
17-24 contest to the affidavit. The court shall hold a hearing on the
17-25 facts alleged in the affidavit as soon as practicable and shall
18-1 stay the enforcement of the penalty on finding that the alleged
18-2 facts are true. The person who files an affidavit has the burden
18-3 of proving that the person is financially unable to pay the amount
18-4 of the penalty and to give a supersedeas bond.
18-5 (m) If the person does not pay the amount of the penalty and
18-6 the enforcement of the penalty is not stayed, the designated
18-7 employee may refer the matter to the attorney general for
18-8 collection of the amount of the penalty.
18-9 (n) Judicial review of the order of the commissioner of
18-11 (1) is instituted by filing a petition as provided by
18-12 Subchapter G, Chapter 2001, Government Code; and
18-13 (2) is under the substantial evidence rule.
18-14 (o) If the court sustains the occurrence of the violation,
18-15 the court may uphold or reduce the amount of the penalty and order
18-16 the person to pay the full or reduced amount of the penalty. If
18-17 the court does not sustain the occurrence of the violation, the
18-18 court shall order that no penalty is owed.
18-19 (p) When the judgment of the court becomes final, the court
18-20 shall proceed under this subsection. If the person paid the amount
18-21 of the penalty and if that amount is reduced or is not upheld by
18-22 the court, the court shall order that the appropriate amount plus
18-23 accrued interest be remitted to the person. The rate of the
18-24 interest is the rate charged on loans to depository institutions by
18-25 the New York Federal Reserve Bank, and the interest shall be paid
19-1 for the period beginning on the date the penalty was paid and
19-2 ending on the date the penalty is remitted. If the person gave a
19-3 supersedeas bond and if the amount of the penalty is not upheld by
19-4 the court, the court shall order the release of the bond. If the
19-5 person gave a supersedeas bond and if the amount of the penalty is
19-6 reduced, the court shall order the release of the bond after the
19-7 person pays the amount.
19-8 (q) A penalty collected under this section shall be remitted
19-9 to the comptroller for deposit in the general revenue fund.
19-10 (r) All proceedings under this section are subject to
19-11 Chapter 2001, Government Code.
19-12 Sec. 8. Criminal offenses and penalties. (a) A person
19-13 commits an offense if the person intentionally or knowingly
19-14 violates Section 3, 3A, 3B, 4, [ or] 5, or 5A of this Act or any
19-15 rule of the commissioner of agriculture [ comptroller] prescribed to
19-16 enforce or implement those sections of this Act.
19-17 (b) A person commits an offense if the person intentionally
19-18 or knowingly:
19-19 (1) refuses to permit a person authorized by Section 2
19-20 of this Act to test any motor fuel sold or held for sale in this
19-22 (2) refuses to permit inspection of any document
19-23 required to be kept or delivered by this Act upon request of a
19-24 person authorized to inspect such documents by Section 5 or 5A of
19-25 this Act; or
20-1 (3) mutilates, destroys, secretes, forges, or
20-2 falsifies any document, record, report, or sign required to be
20-3 delivered, kept, filed, or posted by this Act or any rule
20-4 prescribed by the commissioner of agriculture [ comptroller] for the
20-5 enforcement of this Act.
20-6 (c) An offense under Subsection (a) of this section is a
20-7 Class C misdemeanor.
20-8 (d) An offense under Subsection (b) of this section is a
20-9 Class B misdemeanor.
20-10 (e) The commissioner of agriculture may request a
20-11 prosecuting attorney to prosecute a violation of this Act [ A user,
20-12 the comptroller or the comptroller's authorized representative, any
20-13 law enforcement officer, or the attorney general may file a
20-14 complaint under this section].
20-15 Sec. 9. RULES AND FEES. (a) The commissioner of
20-16 agriculture [ comptroller] may adopt rules not inconsistent with
20-17 this Act for the regulation of the sale of motor fuels containing
20-18 ethanol and methanol.
20-19 (b) The comptroller by rule may impose fees for testing,
20-20 inspection, statement or record forms, sale of signs, or the
20-21 performance of other services provided as determined necessary by
20-22 the commissioner of agriculture in the administration of this Act.
20-23 (c) In addition to the fees authorized by Subsection (b) of
20-24 this section, the comptroller by rule may impose a fee to be
20-25 collected on a periodic basis determined by the comptroller from
21-1 each distributor, supplier, wholesaler, and jobber who deals in a
21-2 motor fuel, without regard to whether the motor fuel is subject to
21-3 regulation under this Act, as determined necessary by the
21-4 commissioner of agriculture. The comptroller by rule shall
21-5 prescribe the form for reporting and remitting the fees imposed by
21-6 and under this section.
21-7 (d) The fees and penalties imposed by this Act or by a rule
21-8 of the comptroller made pursuant to this Act shall be subject to
21-9 the provisions of Chapter 111 and Sections 153.006, 153.007, and
21-10 153.401, Tax Code, except to the extent those sections are in
21-11 conflict with this Act.
21-12 (e) The total amount of the fees collected annually under
21-13 this Act may not exceed the lesser of:
21-14 (1) the costs of administering and enforcing the
21-15 provisions of this Act as determined necessary by the commissioner
21-16 of agriculture; or
21-17 (2) $500,000.
21-18 (f) The fees collected under this section may be used only:
21-19 (1) by the comptroller to defray the cost of
21-20 collecting the fees and penalties imposed by this Act but may not
21-21 exceed $25,000 annually; or
21-22 (2) by the commissioner of agriculture for the
21-23 administration and enforcement of this Act [ by the comptroller and
21-24 shall be deposited in the Comptroller's Operating Fund 062].
21-25 Sec. 10. [ Contracting for] enforcement. The commissioner of
22-1 agriculture shall enforce this Act and [ comptroller] may not
22-2 contract for the enforcement of this Act [ after due notice].
22-3 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
22-4 commissioner of agriculture may make a copy of a manifest, bill of
22-5 sale, bill of lading, delivery ticket, letter of certification, or
22-6 other document the commissioner may inspect under this Act. The
22-7 commissioner may deliver a copy of a document made as provided by
22-8 this section to the federal government for purposes of prosecuting
22-9 a person for a violation of federal law relating to the sale or
22-10 transfer of motor fuel.
22-11 Sec. 12. BUSINESS OPPORTUNITY INFORMATION. The Texas
22-12 Department of Commerce shall cooperate with the Department of
22-13 Agriculture to:
22-14 (1) disseminate information regarding business
22-15 opportunities available to a person who performs automotive fuel
22-16 rating tests; and
22-17 (2) develop markets for providers of automotive fuel
22-18 rating testing services.
22-19 SECTION 8. Effective September 1, 1999, Chapter 1033, Acts
22-20 of the 71st Legislature, Regular Session, 1989 (Article 8614,
22-21 Vernon's Texas Civil Statutes), is amended by adding Section 13 to
22-22 read as follows:
22-23 Sec. 13. PRIVATE TESTING REQUIREMENT. (a) Employees of the
22-24 Department of Agriculture or, by interagency contract, employees of
22-25 other state agencies acting on behalf of the department may not
23-1 perform more than 50 percent of automotive fuel rating tests
23-2 required by law.
23-3 (b) Subsection (a) does not prohibit an agent of the
23-4 Department of Agriculture from performing an automotive fuel rating
23-6 (c) This section expires September 1, 2001.
23-7 SECTION 9. Effective September 1, 2001, Chapter 1033, Acts
23-8 of the 71st Legislature, Regular Session, 1989 (Article 8614,
23-9 Vernon's Texas Civil Statutes), is amended by adding Section 13A to
23-10 read as follows:
23-11 Sec. 13A. PRIVATE TESTING REQUIREMENT. (a) Employees of
23-12 the Department of Agriculture or, by interagency contract,
23-13 employees of other state agencies acting on behalf of the
23-14 department may not perform more than 25 percent of the automotive
23-15 fuel rating tests required by law.
23-16 (b) Subsection (a) does not prohibit an agent of the
23-17 Department of Agriculture from performing an automotive fuel rating
23-19 SECTION 10. Section 10.03, Chapter 419, Acts of the 74th
23-20 Legislature, 1995, is amended to read as follows:
23-21 Sec. 10.03. TRANSITION: LICENSING. Subchapter H, Chapter
23-22 13, Agriculture Code, [ as added by this Act,] relating to
23-23 inspecting or testing of a weighing or measuring device, applies to
23-24 a person on or after September 1, 1997 [ only after the Department
23-25 of Agriculture reasonably demonstrates to the Legislative Budget
24-1 Board that the department's licensing programs for inspection and
24-2 testing of liquefied petroleum gas meters and inspection and
24-3 testing of ranch scales under Subchapters F and G, Chapter 13,
24-4 Agriculture Code, respectively, will attain the performance goals
24-5 established by the Legislative Budget Board].
24-6 SECTION 11. (a) This Act takes effect September 1, 1997.
24-7 (b) The changes in law made by Section 7 of this Act apply
24-8 only to a delivery, transfer, or sale, as applicable, of motor fuel
24-9 that occurs on or after September 1, 1997. A delivery, transfer,
24-10 or sale of motor fuel that occurs before September 1, 1997, is
24-11 governed by the law in effect immediately before the effective date
24-12 of this Act, and that law is continued in effect for that purpose.
24-13 (c) All rules adopted by the comptroller for the
24-14 administration of Chapter 1033, Acts of the 71st Legislature,
24-15 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
24-16 Statutes), in effect on September 1, 1997, remain in effect until
24-17 amended or repealed by the commissioner of agriculture.
24-18 (d) Before December 1, 1997, each entity named in Section
24-19 403.321, Government Code, as added by this Act, shall appoint a
24-20 representative to serve as a member of the Interagency Task Force
24-21 on Texas Retail Food Store Regulation.
24-22 (e) The Parks and Wildlife Department and the Texas
24-23 Department of Health shall enter into the memorandum of agreement
24-24 under Section 47.0113, Parks and Wildlife Code, as added by this
24-25 Act, and shall assume their responsibilities as provided by this
25-1 Act and the agreement before January 1, 1999.
25-2 (f) The Interagency Task Force on Texas Retail Food Store
25-3 Regulation shall report to the legislature under Section 403.321,
25-4 Government Code, as added by this Act, before January 1, 1999.
25-5 (g) The changes in law made by this Act relating to a
25-6 penalty that may be imposed apply only to a violation that occurs
25-7 on or after the effective date of this Act. A violation occurs on
25-8 or after the effective date of this Act if each element of the
25-9 violation occurs on or after that date. A violation that occurs
25-10 before the effective date of this Act is covered by the law in
25-11 effect when the violation occurred, and the former law is continued
25-12 in effect for that purpose.
25-13 SECTION 12. The importance of this legislation and the
25-14 crowded condition of the calendars in both houses create an
25-15 emergency and an imperative public necessity that the
25-16 constitutional rule requiring bills to be read on three several
25-17 days in each house be suspended, and this rule is hereby suspended.