By Brown, et al. S.B. No. 1355
Substitute the following for S.B. No. 1355:
By Counts C.S.S.B. No. 1355
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of retail stores; providing an
1-3 administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 403, Government Code, is amended by
1-6 adding Subchapter N to read as follows:
1-7 SUBCHAPTER N. MISCELLANEOUS DUTIES OF COMPTROLLER
1-8 Sec. 403.321. INTERAGENCY TASK FORCE ON TEXAS RETAIL FOOD
1-9 STORE REGULATION. (a) An interagency task force is created to
1-10 advise and assist the comptroller on coordinating state agency
1-11 regulation of retail food stores.
1-12 (b) The office of the comptroller is the lead agency for the
1-13 task force and shall administer the activities of the task force.
1-14 (c) The task force is composed of a representative of:
1-15 (1) the Department of Agriculture, appointed by the
1-16 commissioner of agriculture;
1-17 (2) the Texas Department of Commerce, appointed by the
1-18 executive director of the department;
1-19 (3) the Texas Department of Health, appointed by the
1-20 commissioner of public health;
1-21 (4) the Parks and Wildlife Department, appointed by
1-22 the executive director of the department;
1-23 (5) the comptroller, appointed by the comptroller;
1-24 (6) the Texas Alcoholic Beverage Commission, appointed
2-1 by the administrator of the commission;
2-2 (7) the Texas Retailer's 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 Stores Association, appointed by the association;
2-8 (10) a rural local health department, appointed by the
2-10 (11) an urban local health department, appointed by
2-11 the governor;
2-12 (12) consumers, appointed by Consumers Union;
2-13 (13) rural consumers, appointed by the comptroller;
2-15 (14) urban consumers, appointed by the comptroller.
2-16 (d) A licensing and regulatory agency shall make available
2-17 to the task force information considered necessary by the task
2-19 (e) The task force may invite representatives of state
2-20 agencies, consumer groups, or business groups to participate in the
2-21 activities of the task force.
2-22 (f) The task force shall:
2-23 (1) elect a presiding officer and an assistant
2-24 presiding officer;
2-25 (2) study the regulation of retail food stores; and
2-26 (3) report to the legislature regarding the task
2-27 force's study of the regulation of retail food stores.
3-1 (g) The task force shall consider and include in the report
3-2 required by Subsection (f)(3) the task force's recommendations
3-4 (1) state agencies' procedures for:
3-5 (A) issuing original and renewal licenses and
3-6 permits; and
3-7 (B) collecting and disbursing fees;
3-8 (2) opportunities to consolidate state agencies'
3-9 licensing and fee collection activities;
3-10 (3) integration of uniform product code price scanner
3-11 inspection into the sales tax audit process;
3-12 (4) establishment of a consolidated retail food store
3-13 application and licensing program to administer all licenses
3-14 related to retail food stores;
3-15 (5) reduction of paperwork;
3-16 (6) reduction of any amount of time that scales and
3-17 other equipment are out of service;
3-18 (7) continuation of adequate consumer protection;
3-19 (8) creation of private sector employment
3-21 (9) opportunities to eliminate the Department of
3-22 Agriculture's responsibilities for the inspection of eggs that are
3-23 sold or offered for sale at retail in this state while ensuring
3-24 that an egg producer in another state that sells eggs directly to a
3-25 retail egg dealer in this state is held to the same standards as an
3-26 egg producer in this state; and
3-27 (10) any other regulatory matter pertaining to a
4-1 retail food store that a majority of the members of the committee
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
4-27 SECTION 4. Effective September 1, 1999, Subchapter H,
5-1 Chapter 13, Agriculture Code, is amended by adding Section 13.4042
5-2 to read as follows:
5-3 Sec. 13.4042. PRIVATE TESTING REQUIREMENT. (a) Employees
5-4 of the department or by interagency contract employees of other
5-5 state agencies acting on behalf of the department may not perform
5-6 more than 50 percent of the inspections or tests required by law of
5-7 the accuracy of weighing or measuring devices in this state.
5-8 (b) Subsection (a) does not prohibit an agent of the
5-9 department from performing an inspection or a test of the accuracy
5-10 of a weighing or measuring device in this state.
5-11 (c) This section expires September 1, 2001.
5-12 SECTION 5. Effective September 1, 2001, Subchapter H,
5-13 Chapter 13, Agriculture Code, is amended by adding Section 13.4043
5-14 to read as follows:
5-15 Sec. 13.4043. PRIVATE TESTING REQUIREMENT. (a) Employees
5-16 of the department or by interagency contract employees of other
5-17 state agencies acting on behalf of the department may not perform
5-18 more than 25 percent of the inspections or tests required by law of
5-19 the accuracy of weighing or measuring devices.
5-20 (b) Subsection (a) does not prohibit an agent of the
5-21 department from performing an inspection or test of the accuracy of
5-22 a weighing or measuring device in this state.
5-23 SECTION 6. Effective September 1, 1999, Subchapter H,
5-24 Chapter 13, Agriculture Code, is amended by adding Section 13.4044
5-25 to read as follows:
5-26 Sec. 13.4044. PHARMACY PRIVATE TESTING REQUIREMENTS. (a)
5-27 Employees of the Texas State Board of Pharmacy may not perform more
6-1 than 50 percent of any inspections or tests necessary under Section
6-3 (b) Subsection (a) does not prohibit an agent of the Texas
6-4 State Board of Pharmacy from performing an inspection or a test of
6-5 the accuracy of a weighing or measuring device necessary under
6-6 Section 13.002(c).
6-7 (c) This section expires September 1, 2001.
6-8 SECTION 7. Effective September 1, 2001, Subchapter H,
6-9 Chapter 13, Agriculture Code, is amended by adding Section 13.4045
6-10 to read as follows:
6-11 Sec. 13.4045. PHARMACY PRIVATE TESTING REQUIREMENTS. (a)
6-12 Employees of the Texas State Board of Pharmacy may not perform more
6-13 than 25 percent of any inspections or tests necessary under Section
6-15 (b) Subsection (a) does not prohibit an agent of the Texas
6-16 State Board of Pharmacy from performing an inspection or a test of
6-17 the accuracy of a weighing or measuring device necessary under
6-18 Section 13.002(c).
6-19 SECTION 8. Subchapter A, Chapter 47, Parks and Wildlife
6-20 Code, is amended by adding Section 47.0113 to read as follows:
6-21 Sec. 47.0113. MEMORANDUM OF AGREEMENT. (a) The department
6-22 shall initiate negotiations for and enter into a memorandum of
6-23 agreement with the Texas Department of Health to consolidate the
6-24 license and permit application process for retail food stores that
6-25 sell aquatic products.
6-26 (b) The memorandum must be adopted by the Texas Board of
6-27 Health and the commission.
7-1 (c) After the commission and the Texas Board of Health have
7-2 adopted a memorandum of agreement, the department shall publish the
7-3 memorandum of agreement in the Texas Register.
7-4 (d) The memorandum of agreement must provide that the Texas
7-5 Department of Health shall:
7-6 (1) collect information to identify each retail food
7-7 store that sells aquatic products as a part of a food retailing
7-8 business and provide that information to the department; and
7-9 (2) perform routine inspections regarding the source
7-10 of aquatic products.
7-11 SECTION 9. Chapter 1033, Acts of the 71st Legislature,
7-12 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
7-13 Statutes), is amended to read as follows:
7-14 Sec. 1. Definitions. In this Act:
7-15 (1) "Automotive fuel rating" has the meaning assigned
7-16 by 15 U.S.C. Section 2821.
7-17 (2) "Dealer" has the meaning assigned by Section
7-18 153.001, Tax Code [ means a person who is the operator of a service
7-19 station or other retail outlet and who delivers motor fuel into the
7-20 fuel tanks of motor vehicles or motor boats].
7-21 (3) "Distributor" has the meaning assigned by Section
7-22 153.001, Tax Code.
7-23 (4) [ (2)] "Motor fuel" has the meaning assigned [ given
7-24 that term] by Section 153.001, Tax Code.
7-25 (5) "Supplier" has the meaning assigned by Section
7-26 153.001, Tax Code.
7-27 Sec. 2. Testing. In order to determine compliance with the
8-1 standards and for the enforcement of rules adopted under Sections
8-2 3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture
8-3 [ comptroller of public accounts or an authorized representative of
8-4 the comptroller, any law enforcement officer at the direction of a
8-5 prosecuting attorney, or the attorney general] may test any motor
8-6 fuel sold in this state, with or without a complaint about the
8-7 fuel. The commissioner may adopt rules relating to the frequency
8-8 of testing of motor fuels. In adopting rules relating to the
8-9 frequency of testing of motor fuels, the commissioner shall
8-10 consider the nature of the violation, history of past violations,
8-11 and funds available as provided by Section 9(e) of this Act.
8-12 Sec. 3. Posting notice of sale of alcohol and motor fuel
8-13 mixture. (a) A [ motor fuel] dealer in this state may not sell or
8-14 offer for sale any motor fuel from a motor fuel pump that is
8-15 supplied by a storage tank into which motor fuel containing ethanol
8-16 in a mixture in which one percent or more of the mixture measured
8-17 by volume is ethanol or into which motor fuel containing methanol
8-18 in a mixture in which one percent or more of the mixture measured
8-19 by volume is methanol has been delivered within the 60-day period
8-20 preceding the day of sale or offer of sale, unless the dealer
8-21 prominently displays on the pump from which the mixture is sold a
8-22 sign that complies with the requirements of Subsection (b) of this
8-24 (b)(1) The sign required under Subsection (a) of this
8-25 section must be displayed on each face of the motor fuel pump on
8-26 which the price of the motor fuel mixture sold from the pump is
8-27 displayed. The sign must state "Contains Ethanol" or "Contains
9-1 Methanol," as applicable. The sign must appear in contrasting
9-2 colors with block letters at least one-half inch in height and
9-3 one-fourth inch in width and shall be displayed in a clear,
9-4 conspicuous, and prominent manner, visible to customers using
9-5 either side of the pump.
9-6 (2) In addition to the requirements of Subsection
9-7 (b)(1) of this section, if a motor fuel pump is supplied by a
9-8 storage tank into which motor fuel containing 10 percent or more
9-9 ethanol by volume or five percent or more methanol by volume has
9-10 been delivered within the 60-day period preceding the day of the
9-11 sale or offer of sale, the sign shall state the percentage of
9-12 ethanol or methanol by volume, to the nearest whole percent, of the
9-13 motor fuel having the highest percentage of ethanol or methanol
9-14 delivered into that storage tank within the 60-day period. This
9-15 subsection does not prohibit the posting of other alcohol or
9-16 additive information, the information and posting being subject to
9-17 regulations by the commissioner of agriculture.
9-18 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
9-19 LOWER THAN RATING POSTED ON PUMP LABEL. A dealer may not sell or
9-20 offer for sale motor fuel from a motor fuel pump if the motor fuel
9-21 has an automotive fuel rating that is lower than the automotive
9-22 fuel rating for that motor fuel posted on the pump.
9-23 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
9-24 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
9-25 may not deliver or transfer motor fuel to a dealer if the fuel has
9-26 an automotive fuel rating that is lower than the certification of
9-27 the automotive fuel rating the distributor or supplier is required
10-1 to make to the motor fuel dealer under federal law.
10-2 Sec. 4. Documentation of motor fuel mixture sales. (a) A
10-3 distributor, supplier, wholesaler, or jobber of motor fuel, as
10-4 those persons are defined by Section 153.001, Tax Code, may not
10-5 make a delivery of motor fuel containing ethanol or methanol if the
10-6 ethanol or methanol in the motor fuel mixture exceeds one percent
10-7 by volume, other than a delivery made into the fuel supply tanks of
10-8 a motor vehicle, to any outlet in this state unless the person
10-9 delivers to the outlet receiving the delivery at the time of the
10-10 delivery of the mixture:
10-11 (1) the sign described in Section 3 of this Act in
10-12 sufficient quantities for the dealer receiving the motor fuel
10-13 mixture to comply with the requirements of this Act; and
10-14 (2) a manifest, bill of sale, bill of lading, or any
10-15 other document evidencing delivery of the motor fuel containing
10-16 ethanol or methanol, which shall include a statement showing the
10-17 percentage of ethanol or methanol contained in the mixture
10-18 delivered, and the types and percentages of associated cosolvents,
10-19 if any, contained in the mixture delivered. The document shall
10-20 also show delivery of the sign or signs, as applicable, required to
10-21 be delivered by this subsection.
10-22 (b) On the request of any motor fuel user, a dealer must
10-23 reveal the percentage of ethanol contained in motor fuel being
10-24 sold, the percentage of methanol contained in motor fuel being
10-25 sold, and, if the motor fuel contains methanol, the types and
10-26 percentages of associated cosolvents contained in the motor fuel
10-27 being sold.
11-1 (c) The commissioner of agriculture [ comptroller] by rule
11-2 may prescribe the form of the statement required by Subsection (a)
11-3 of this section.
11-4 (d) The signs required to be posted by a [ motor fuel] dealer
11-5 under Section 3 of this Act and delivered to a [ motor fuel] dealer
11-6 under this section shall be obtained from the commissioner of
11-7 agriculture [ comptroller].
11-8 (e) If the commissioner of agriculture [ comptroller]
11-9 determines that certain types of motor fuel, such as diesel or
11-10 liquefied petroleum gas, are not sold in this state as mixtures
11-11 with alcohol in sufficient quantities to warrant regulation of
11-12 those deliveries under this Act, the commissioner [ comptroller] may
11-13 limit the application of Section 3 of this Act and this section to
11-14 motor fuels sold in sufficient quantity to warrant regulation.
11-15 Sec. 5. DEALER AND DELIVERY DOCUMENTS. (a) Each [ motor
11-16 fuel] dealer [ in this state] shall keep for one year [ four years] a
11-17 copy of each manifest, bill of sale, bill of lading, or any other
11-18 document required to be delivered to the dealer by Section 4 of
11-19 this Act. During the first 60 days following delivery of a fuel
11-20 mixture covered by this Act, the dealer shall keep at the station
11-21 or retail outlet where the motor fuel was delivered a copy of each
11-22 manifest, bill of sale, bill of lading, or any other document
11-23 required to be delivered to the dealer by Section 4 of this Act.
11-24 Each distributor, supplier, wholesaler, or jobber of motor fuel
11-25 shall keep for one year [ four years] at the principal place of
11-26 business a copy of each manifest, bill of sale, bill of lading, or
11-27 any other document required to be delivered to the dealer by
12-1 Section 4 of this Act. The documents are subject to inspection by
12-2 the commissioner of agriculture [ comptroller or an authorized
12-3 representative of the comptroller, any law enforcement officer, or
12-4 the attorney general].
12-5 (b) The commissioner of agriculture [ comptroller] by rule
12-6 may prescribe the manner of filing documents required to be kept
12-7 under Subsection (a) of this section, and the time, place, and
12-8 manner of inspection of the documents.
12-9 Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF
12-10 AUTOMOTIVE FUEL RATINGS. (a) Each dealer shall keep for at least
12-11 one year a copy of:
12-12 (1) each delivery ticket or letter of certification on
12-13 which the dealer based a posting of the automotive fuel rating of
12-14 motor fuel contained in a motor fuel pump;
12-15 (2) records of any automotive fuel rating
12-16 determination made by the dealer under 16 C.F.R. Part 306, as
12-17 amended; and
12-18 (3) each delivery ticket or letter of certification
12-19 that is required to be delivered to the dealer under 16 C.F.R. Part
12-20 306, as amended.
12-21 (b) Each distributor or supplier shall keep for at least one
12-22 year at the principal place of business a copy of each delivery
12-23 ticket or letter of certification required to be delivered by the
12-24 distributor or supplier to a dealer under 16 C.F.R. Part 306, as
12-26 (c) A document required to be kept under this section is
12-27 subject to inspection by the commissioner of agriculture.
13-1 Sec. 6. CIVIL ACTION. (a) If a [ motor fuel] dealer or a
13-2 distributor, supplier, wholesaler, or jobber of motor fuel violates
13-3 Section 3, 3A, 3B, 4, or 5 of this Act, any motor fuel user who has
13-4 purchased the fuel and who has suffered damages or has a complaint
13-5 about the product may maintain a civil action against the [ motor
13-6 fuel] dealer or the distributor, supplier, wholesaler, or jobber of
13-7 motor fuel. The action may be brought, without regard to any
13-8 specific amount in damages, in the district court in any county in
13-9 which the [ motor fuel] dealer, distributor, supplier, wholesaler,
13-10 or jobber is doing business or in which the [ motor fuel] user
13-12 (b) In any action under this section, the court shall award
13-13 to the motor fuel user who prevails the amount of actual damages
13-14 and grant such equitable relief as the court determines is
13-15 necessary to remedy the effects of the [ motor fuel] dealer's
13-16 violation or the distributor, supplier, wholesaler, or jobber's
13-17 violation of the provisions of Section 3, 3A, 3B, 4, or 5 of this
13-18 Act, including declaratory judgment, permanent injunctive relief,
13-19 and temporary injunctive relief. In addition, the court shall
13-20 award to the motor fuel user who prevails in an action brought
13-21 hereunder court costs and attorney's fees that are reasonable in
13-22 relation to the amount of work expended.
13-23 (c) In addition to the remedies provided in Subsection (b)
13-24 of this section, if the trier of fact finds that a [ the] violation
13-25 of Section 3, 3A, 3B, 4, or 5 of this Act was committed wilfully or
13-26 knowingly by the defendant, the trier of fact shall award not more
13-27 than three times the amount of actual damages.
14-1 (d) A violation of Section 3, 3A, 3B, 4, or 5 of this Act is
14-2 also a deceptive trade practice under Subchapter E, Chapter 17,
14-3 Business & Commerce Code.
14-4 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
14-5 or 5 of this Act shall be commenced and prosecuted within two years
14-6 after the date the cause of action accrued.
14-7 Sec. 7. CIVIL PENALTY. A [ motor fuel] dealer or a
14-8 distributor, supplier, wholesaler, or jobber of motor fuel who
14-9 violates a provision of Section 3, 3A, 3B, 4, [ or] 5, or 5A of this
14-10 Act forfeits to the state a civil penalty of not less than $200 or
14-11 [ $25 nor] more than $10,000 [ $200].
14-12 Sec. 7A. ADMINISTRATIVE PENALTY. (a) The commissioner of
14-13 agriculture may impose an administrative penalty against a person
14-14 licensed or regulated under this Act who violates this Act or a
14-15 rule or order adopted under this Act.
14-16 (b) The penalty for a violation may be in an amount not to
14-17 exceed $500. Each day a violation continues or occurs is a
14-18 separate violation for purposes of imposing a penalty.
14-19 (c) The amount of the penalty shall be based on:
14-20 (1) the seriousness of the violation, including the
14-21 nature, circumstances, extent, and gravity of any prohibited acts,
14-22 and the hazard or potential hazard created to the health, safety,
14-23 or economic welfare of the public;
14-24 (2) the economic harm to property or the environment
14-25 caused by the violation;
14-26 (3) the history of previous violations;
14-27 (4) the amount necessary to deter future violations;
15-1 (5) efforts to correct the violation; and
15-2 (6) any other matter that justice may require.
15-3 (d) An employee of the Department of Agriculture designated
15-4 by the commissioner to act under this section who determines that a
15-5 violation has occurred may issue to the commissioner of agriculture
15-6 a report that states the facts on which the determination is based
15-7 and the designated employee's recommendation on the imposition of a
15-8 penalty, including a recommendation on the amount of the penalty.
15-9 (e) Within 14 days after the date the report is issued, the
15-10 designated employee shall give written notice of the report to the
15-11 person. The notice may be given by certified mail. The notice
15-12 must include a brief summary of the alleged violation and a
15-13 statement of the amount of the recommended penalty and must inform
15-14 the person that the person has a right to a hearing on the
15-15 occurrence of the violation, the amount of the penalty, or both the
15-16 occurrence of the violation and the amount of the penalty.
15-17 (f) Within 20 days after the date the person receives the
15-18 notice, the person in writing may accept the determination and
15-19 recommended penalty of the designated employee or may make a
15-20 written request for a hearing on the occurrence of the violation,
15-21 the amount of the penalty, or both the occurrence of the violation
15-22 and the amount of the penalty.
15-23 (g) If the person accepts the determination and recommended
15-24 penalty of the designated employee, the commissioner of agriculture
15-25 by order shall approve the determination and impose the recommended
15-27 (h) If the person requests a hearing or fails to respond
16-1 timely to the notice, the designated employee shall set a hearing
16-2 and give notice of the hearing to the person. The hearing shall be
16-3 held by an administrative law judge of the State Office of
16-4 Administrative Hearings. The administrative law judge shall make
16-5 findings of fact and conclusions of law and promptly issue to the
16-6 commissioner of agriculture a proposal for a decision about the
16-7 occurrence of the violation and the amount of a proposed penalty.
16-8 Based on the findings of fact, conclusions of law, and proposal for
16-9 a decision, the commissioner of agriculture by order may find that
16-10 a violation has occurred and impose a penalty or may find that no
16-11 violation occurred.
16-12 (i) The notice of the commissioner of agriculture's order
16-13 given to the person under Chapter 2001, Government Code, must
16-14 include a statement of the right of the person to judicial review
16-15 of the order.
16-16 (j) Within 30 days after the date the commissioner of
16-17 agriculture's order becomes final as provided by Section 2001.144,
16-18 Government Code, the person shall:
16-19 (1) pay the amount of the penalty;
16-20 (2) pay the amount of the penalty and file a petition
16-21 for judicial review contesting the occurrence of the violation, the
16-22 amount of the penalty, or both the occurrence of the violation and
16-23 the amount of the penalty; or
16-24 (3) without paying the amount of the penalty, file a
16-25 petition for judicial review contesting the occurrence of the
16-26 violation, the amount of the penalty, or both the occurrence of the
16-27 violation and the amount of the penalty.
17-1 (k) Within the 30-day period, a person who acts under
17-2 Subsection (j)(3) of this section may:
17-3 (1) stay enforcement of the penalty by:
17-4 (A) paying the amount of the penalty to the
17-5 court for placement in an escrow account; or
17-6 (B) giving to the court a supersedeas bond that
17-7 is approved by the court for the amount of the penalty and that is
17-8 effective until all judicial review of the board's order is final;
17-10 (2) request the court to stay enforcement of the
17-11 penalty by:
17-12 (A) filing with the court a sworn affidavit of
17-13 the person stating that the person is financially unable to pay the
17-14 amount of the penalty and is financially unable to give the
17-15 supersedeas bond; and
17-16 (B) giving a copy of the affidavit to the
17-17 designated employee by certified mail.
17-18 (l) A designated employee who receives a copy of an
17-19 affidavit under Subsection (k)(2) of this section may file with the
17-20 court, within five days after the date the copy is received, a
17-21 contest to the affidavit. The court shall hold a hearing on the
17-22 facts alleged in the affidavit as soon as practicable and shall
17-23 stay the enforcement of the penalty on finding that the alleged
17-24 facts are true. The person who files an affidavit has the burden
17-25 of proving that the person is financially unable to pay the amount
17-26 of the penalty and to give a supersedeas bond.
17-27 (m) If the person does not pay the amount of the penalty and
18-1 the enforcement of the penalty is not stayed, the designated
18-2 employee may refer the matter to the attorney general for
18-3 collection of the amount of the penalty.
18-4 (n) Judicial review of the order of the commissioner of
18-6 (1) is instituted by filing a petition as provided by
18-7 Subchapter G, Chapter 2001, Government Code; and
18-8 (2) is under the substantial evidence rule.
18-9 (o) If the court sustains the occurrence of the violation,
18-10 the court may uphold or reduce the amount of the penalty and order
18-11 the person to pay the full or reduced amount of the penalty. If
18-12 the court does not sustain the occurrence of the violation, the
18-13 court shall order that no penalty is owed.
18-14 (p) When the judgment of the court becomes final, the court
18-15 shall proceed under this subsection. If the person paid the amount
18-16 of the penalty and if that amount is reduced or is not upheld by
18-17 the court, the court shall order that the appropriate amount plus
18-18 accrued interest be remitted to the person. The rate of the
18-19 interest is the rate charged on loans to depository institutions by
18-20 the New York Federal Reserve Bank, and the interest shall be paid
18-21 for the period beginning on the date the penalty was paid and
18-22 ending on the date the penalty is remitted. If the person gave a
18-23 supersedeas bond and if the amount of the penalty is not upheld by
18-24 the court, the court shall order the release of the bond. If the
18-25 person gave a supersedeas bond and if the amount of the penalty is
18-26 reduced, the court shall order the release of the bond after the
18-27 person pays the amount.
19-1 (q) A penalty collected under this section shall be remitted
19-2 to the comptroller for deposit in the general revenue fund.
19-3 (r) All proceedings under this section are subject to
19-4 Chapter 2001, Government Code.
19-5 Sec. 8. Criminal offenses and penalties. (a) A person
19-6 commits an offense if the person intentionally or knowingly
19-7 violates Section 3, 3A, 3B, 4, [ or] 5, or 5A of this Act or any
19-8 rule of the commissioner of agriculture [ comptroller] prescribed to
19-9 enforce or implement those sections of this Act.
19-10 (b) A person commits an offense if the person intentionally
19-11 or knowingly:
19-12 (1) refuses to permit a person authorized by Section 2
19-13 of this Act to test any motor fuel sold or held for sale in this
19-15 (2) refuses to permit inspection of any document
19-16 required to be kept or delivered by this Act upon request of a
19-17 person authorized to inspect such documents by Section 5 or 5A of
19-18 this Act; or
19-19 (3) mutilates, destroys, secretes, forges, or
19-20 falsifies any document, record, report, or sign required to be
19-21 delivered, kept, filed, or posted by this Act or any rule
19-22 prescribed by the commissioner of agriculture [ comptroller] for the
19-23 enforcement of this Act.
19-24 (c) An offense under Subsection (a) of this section is a
19-25 Class C misdemeanor.
19-26 (d) An offense under Subsection (b) of this section is a
19-27 Class B misdemeanor.
20-1 (e) The commissioner of agriculture may request a
20-2 prosecuting attorney to prosecute a violation of this Act [ A user,
20-3 the comptroller or the comptroller's authorized representative, any
20-4 law enforcement officer, or the attorney general may file a
20-5 complaint under this section].
20-6 Sec. 9. RULES AND FEES. (a) The commissioner of
20-7 agriculture [ comptroller] may adopt rules not inconsistent with
20-8 this Act for the regulation of the sale of motor fuels containing
20-9 ethanol and methanol.
20-10 (b) The comptroller by rule may impose fees for testing,
20-11 inspection, statement or record forms, sale of signs, or the
20-12 performance of other services provided as determined necessary by
20-13 the commissioner of agriculture in the administration of this Act.
20-14 (c) In addition to the fees authorized by Subsection (b) of
20-15 this section, the comptroller by rule may impose a fee to be
20-16 collected on a periodic basis determined by the comptroller from
20-17 each distributor, supplier, wholesaler, and jobber who deals in a
20-18 motor fuel, without regard to whether the motor fuel is subject to
20-19 regulation under this Act, as determined necessary by the
20-20 commissioner of agriculture. The comptroller by rule shall
20-21 prescribe the form for reporting and remitting the fees imposed by
20-22 and under this section.
20-23 (d) The fees and penalties imposed by this Act or by a rule
20-24 of the comptroller made pursuant to this Act shall be subject to
20-25 the provisions of Chapter 111 and Sections 153.006, 153.007, and
20-26 153.401, Tax Code, except to the extent those sections are in
20-27 conflict with this Act.
21-1 (e) The total amount of the fees collected annually under
21-2 this Act may not exceed the lesser of:
21-3 (1) the costs of administering and enforcing the
21-4 provisions of this Act as determined necessary by the commissioner
21-5 of agriculture; or
21-6 (2) $500,000.
21-7 (f) The fees collected under this section may be used only:
21-8 (1) by the comptroller to defray the cost of
21-9 collecting the fees and penalties imposed by this Act but may not
21-10 exceed $25,000 annually; or
21-11 (2) by the commissioner of agriculture for the
21-12 administration and enforcement of this Act [ by the comptroller and
21-13 shall be deposited in the Comptroller's Operating Fund 062].
21-14 Sec. 10. [ Contracting for] enforcement. The commissioner of
21-15 agriculture shall enforce this Act and [ comptroller] may not
21-16 contract for the enforcement of this Act [ after due notice].
21-17 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
21-18 commissioner of agriculture may make a copy of a manifest, bill of
21-19 sale, bill of lading, delivery ticket, letter of certification, or
21-20 other document the commissioner may inspect under this Act. The
21-21 commissioner may deliver a copy of a document made as provided by
21-22 this section to the federal government for purposes of prosecuting
21-23 a person for a violation of federal law relating to the sale or
21-24 transfer of motor fuel.
21-25 Sec. 12. BUSINESS OPPORTUNITY INFORMATION. The Texas
21-26 Department of Commerce shall cooperate with the Department of
21-27 Agriculture to:
22-1 (1) disseminate information regarding business
22-2 opportunities available to a person who performs automotive fuel
22-3 rating tests; and
22-4 (2) develop markets for providers of automotive fuel
22-5 rating testing services.
22-6 SECTION 10. Effective September 1, 1999, Chapter 1033, Acts
22-7 of the 71st Legislature, Regular Session, 1989 (Article 8614,
22-8 Vernon's Texas Civil Statutes), is amended by adding Section 13 to
22-9 read as follows:
22-10 Sec. 13. PRIVATE TESTING REQUIREMENT. (a) Employees of the
22-11 Department of Agriculture may not perform more than 50 percent of
22-12 automotive fuel rating tests required by law.
22-13 (b) Subsection (a) does not prohibit an employee of the
22-14 Department of Agriculture from performing an automotive fuel
22-15 rating test.
22-16 (c) This section expires September 1, 2001.
22-17 SECTION 11. Effective September 1, 2001, Chapter 1033, Acts
22-18 of the 71st Legislature, Regular Session, 1989 (Article 8614,
22-19 Vernon's Texas Civil Statutes), is amended by adding Section 13A to
22-20 read as follows:
22-21 Sec. 13A. PRIVATE TESTING REQUIREMENT. (a) Employees of
22-22 the Department of Agriculture may not perform more than 25 percent
22-23 of the automotive fuel rating tests required by law.
22-24 (b) Subsection (a) does not prohibit an employee of the
22-25 Department of Agriculture from performing an automotive fuel rating
22-27 SECTION 12. Section 10.03, Chapter 419, Acts of the 74th
23-1 Legislature, Regular Session, 1995, is amended to read as follows:
23-2 Sec. 10.03. TRANSITION: LICENSING. Subchapter H, Chapter
23-3 13, Agriculture Code, [ as added by this Act,] relating to
23-4 inspecting or testing of a weighing or measuring device, applies to
23-5 a person on or after September 1, 1997 [ only after the Department
23-6 of Agriculture reasonably demonstrates to the Legislative Budget
23-7 Board that the department's licensing programs for inspection and
23-8 testing of liquefied petroleum gas meters and inspection and
23-9 testing of ranch scales under Subchapters F and G, Chapter 13,
23-10 Agriculture Code, respectively, will attain the performance goals
23-11 established by the Legislative Budget Board].
23-12 SECTION 13. (a) This Act takes effect September 1, 1997.
23-13 (b) The changes in law made by Section 9 of this Act apply
23-14 only to a delivery, transfer, or sale, as applicable, of motor fuel
23-15 that occurs on or after September 1, 1997. A delivery, transfer,
23-16 or sale of motor fuel that occurs before September 1, 1997, is
23-17 governed by the law in effect immediately before the effective date
23-18 of this Act, and that law is continued in effect for that purpose.
23-19 (c) All rules adopted by the comptroller for the
23-20 administration of Chapter 1033, Acts of the 71st Legislature,
23-21 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
23-22 Statutes), in effect on September 1, 1997, remain in effect until
23-23 amended or repealed by the commissioner of agriculture.
23-24 (d) Before December 1, 1997, each entity named in Section
23-25 403.321, Government Code, as added by this Act, shall appoint a
23-26 representative to serve as a member of the Interagency Task Force
23-27 on Texas Retail Food Store Regulation.
24-1 (e) The Parks and Wildlife Department and the Texas
24-2 Department of Health shall enter into the memorandum of agreement
24-3 under Section 47.0113, Parks and Wildlife Code, as added by this
24-4 Act, and shall assume their responsibilities as provided by this
24-5 Act and the agreement before January 1, 1999.
24-6 (f) The Interagency Task Force on Texas Retail Food Store
24-7 Regulation shall report to the legislature under Section 403.321,
24-8 Government Code, as added by this Act, before January 1, 1999.
24-9 (g) The changes in law made by this Act relating to a
24-10 penalty that may be imposed apply only to a violation that occurs
24-11 on or after the effective date of this Act. A violation occurs on
24-12 or after the effective date of this Act if each element of the
24-13 violation occurs on or after that date. A violation that occurs
24-14 before the effective date of this Act is covered by the law in
24-15 effect when the violation occurred, and the former law is continued
24-16 in effect for that purpose.
24-17 SECTION 14. The importance of this legislation and the
24-18 crowded condition of the calendars in both houses create an
24-19 emergency and an imperative public necessity that the
24-20 constitutional rule requiring bills to be read on three several
24-21 days in each house be suspended, and this rule is hereby suspended.