75R11460 MWV-F                          

         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

 2-3     association;

 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

 2-9     governor;

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;

2-14     and

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

2-18     force.

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

 3-3     concerning:

 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

3-20     opportunities;

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

 4-6     follows:

 4-7           (a)  Except as provided by Subsection (c), the [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

4-26     state.

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

 6-2     13.002(c).

 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

6-14     13.002(c).

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

8-23     section.

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

12-25    amended.

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

13-11    resides.

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

15-26    penalty.

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;

 17-9    or

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

 18-5    agriculture:

 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

19-14    state;

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

22-26    test.

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.