1-1 By: Brown, Ellis S.B. No. 1355
1-2 (In the Senate - Filed March 13, 1997; March 18, 1997, read
1-3 first time and referred to Committee on State Affairs;
1-4 March 26, 1997, rereferred to Committee on Natural Resources;
1-5 April 14, 1997, reported adversely, with favorable Committee
1-6 Substitute by the following vote: Yeas 10, Nays 0; April 14, 1997,
1-7 sent to printer.)
1-8 COMMITTEE SUBSTITUTE FOR S.B. No. 1355 By: Brown
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to the regulation of retail stores; providing an
1-12 administrative penalty.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Chapter 403, Government Code, is amended by
1-15 adding Subchapter N to read as follows:
1-16 SUBCHAPTER N. MISCELLANEOUS DUTIES OF COMPTROLLER
1-17 Sec. 403.321. INTERAGENCY TASK FORCE ON TEXAS RETAIL FOOD
1-18 STORE REGULATION. (a) An interagency task force is created to
1-19 advise and assist the comptroller on coordinating state agency
1-20 regulation of retail food stores.
1-21 (b) The office of the comptroller is the lead agency for the
1-22 task force and shall administer the activities of the task force.
1-23 (c) The task force is composed of a representative of:
1-24 (1) the Department of Agriculture, appointed by the
1-25 commissioner of agriculture;
1-26 (2) the Texas Department of Commerce, appointed by the
1-27 executive director of the department;
1-28 (3) the Texas Department of Health, appointed by the
1-29 commissioner of public health;
1-30 (4) the Parks and Wildlife Department, appointed by
1-31 the executive director of the department;
1-32 (5) the comptroller, appointed by the comptroller;
1-33 (6) the Texas Alcoholic Beverage Commission, appointed
1-34 by the administrator of the commission;
1-35 (7) the Texas Retailers Association, appointed by the
1-37 (8) the Texas Food Industry Association, appointed by
1-38 the association;
1-39 (9) the Texas Petroleum Marketers and Convenience
1-40 Store Association, appointed by the association;
1-41 (10) a rural local health department, appointed by the
1-42 governor; and
1-43 (11) an urban local health department, appointed by
1-44 the governor.
1-45 (d) A licensing and regulatory agency shall make available
1-46 to the task force information considered necessary by the task
1-48 (e) The task force may invite representatives of state
1-49 agencies, consumer groups, or business groups to participate in the
1-50 activities of the task force.
1-51 (f) The task force shall:
1-52 (1) elect a presiding officer and an assistant
1-53 presiding officer;
1-54 (2) study the regulation of retail food stores; and
1-55 (3) report to the legislature regarding the task
1-56 force's study of the regulation of retail food stores.
1-57 (g) The task force shall consider and include in the report
1-58 required by Subsection (f)(3) the task force's recommendations
1-60 (1) state agencies' procedures for:
1-61 (A) issuing original and renewal licenses and
1-62 permits; and
1-63 (B) collecting and disbursing fees;
1-64 (2) opportunities to consolidate state agencies'
2-1 licensing and fee collection activities;
2-2 (3) integration of uniform product code price scanner
2-3 inspection into the sales tax audit process;
2-4 (4) establishment of a consolidated retail food store
2-5 application and licensing program to administer all licenses
2-6 related to retail food stores;
2-7 (5) reduction of paperwork;
2-8 (6) reduction of any amount of time that scales and
2-9 other equipment are out of service;
2-10 (7) continuation of adequate consumer protection;
2-11 (8) creation of private sector employment
2-13 (9) opportunities to eliminate the Department of
2-14 Agriculture's responsibilities for the inspection of eggs that are
2-15 sold or offered for sale at retail in this state while ensuring
2-16 that an egg producer in another state that sells eggs directly to a
2-17 retail egg dealer in this state is held to the same standards as an
2-18 egg producer in this state; and
2-19 (10) any other regulatory matter pertaining to a
2-20 retail food store that a majority of the members of the task force
2-21 considers advisable.
2-22 (h) This section expires June 1, 1999.
2-23 SECTION 2. Section 13.002, Agriculture Code, is amended by
2-24 amending Subsection (a) and adding Subsection (c) to read as
2-26 (a) Except as provided by Subsection (c), the [
2-27 department shall enforce the provisions of this chapter and shall
2-28 supervise all weights and measures sold or offered for sale in this
2-29 state. The department may purchase apparatus as necessary for the
2-30 administration of this chapter.
2-31 (c) The Texas State Board of Pharmacy shall enforce the
2-32 provisions of this chapter relating to the compounding of drugs in
2-33 pharmacies and shall supervise all weights and measures sold,
2-34 offered for sale, or used in this state for the compounding of
2-35 drugs in pharmacies.
2-36 SECTION 3. Subchapter H, Chapter 13, Agriculture Code, is
2-37 amended by adding Section 13.4041 to read as follows:
2-38 Sec. 13.4041. BUSINESS OPPORTUNITY INFORMATION. The Texas
2-39 Department of Commerce shall cooperate with the department to:
2-40 (1) disseminate information regarding business
2-41 opportunities available to a person who performs tests of the
2-42 accuracy of weighing or measuring devices in this state; and
2-43 (2) develop markets for providers of testing services
2-44 that test the accuracy of weighing or measuring devices in this
2-46 SECTION 4. Effective September 1, 1999, Subchapter H,
2-47 Chapter 13, Agriculture Code, is amended by adding Section 13.4042
2-48 to read as follows:
2-49 Sec. 13.4042. PRIVATE TESTING REQUIREMENT. (a) Employees
2-50 of the department or, by interagency contract, employees of other
2-51 state agencies acting on behalf of the department may not perform
2-52 more than 50 percent of the inspections or tests required by law of
2-53 the accuracy of weighing or measuring devices in this state.
2-54 (b) Subsection (a) does not prohibit an agent of the
2-55 department from performing an inspection or a test of the accuracy
2-56 of a weighing or measuring device in this state.
2-57 (c) This section expires September 1, 2001.
2-58 SECTION 5. Effective September 1, 2001, Subchapter H,
2-59 Chapter 13, Agriculture Code, is amended by adding Section 13.4043
2-60 to read as follows:
2-61 Sec. 13.4043. PRIVATE TESTING REQUIREMENT. (a) Employees
2-62 of the department or, by interagency contract, employees of other
2-63 state agencies acting on behalf of the department may not perform
2-64 more than 25 percent of the inspections or tests required by law of
2-65 the accuracy of weighing or measuring devices.
2-66 (b) Subsection (a) does not prohibit an agent of the
2-67 department from performing an inspection or test of the accuracy of
2-68 a weighing or measuring device in this state.
2-69 SECTION 6. Subchapter A, Chapter 47, Parks and Wildlife
3-1 Code, is amended by adding Section 47.0113 to read as follows:
3-2 Sec. 47.0113. MEMORANDUM OF AGREEMENT. (a) The department
3-3 shall initiate negotiations for and enter into a memorandum of
3-4 agreement with the Texas Department of Health to consolidate the
3-5 license and permit application process for retail food stores that
3-6 sell aquatic products.
3-7 (b) The memorandum must be adopted by the Texas Board of
3-8 Health and the commission.
3-9 (c) After the commission and the Texas Board of Health have
3-10 adopted a memorandum of agreement, the department shall publish the
3-11 memorandum of agreement in the Texas Register.
3-12 (d) The memorandum of agreement must provide that the Texas
3-13 Department of Health shall:
3-14 (1) collect information to identify each retail food
3-15 store that sells aquatic products as a part of a food retailing
3-16 business and provide that information to the department; and
3-17 (2) perform routine inspections regarding the source
3-18 of aquatic products.
3-19 SECTION 7. Chapter 1033, Acts of the 71st Legislature,
3-20 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
3-21 Statutes), is amended to read as follows:
3-22 Sec. 1. Definitions. In this Act:
3-23 (1) "Automotive fuel rating" has the meaning assigned
3-24 by 15 U.S.C. Section 2821.
3-25 (2) "Dealer" has the meaning assigned by Section
3-26 153.001, Tax Code [ means a person who is the operator of a service
3-27 station or other retail outlet and who delivers motor fuel into the
3-28 fuel tanks of motor vehicles or motor boats].
3-29 (3) "Distributor" has the meaning assigned by Section
3-30 153.001, Tax Code.
3-31 (4) [ (2)] "Motor fuel" has the meaning assigned [ given
3-32 that term] by Section 153.001, Tax Code.
3-33 (5) "Supplier" has the meaning assigned by Section
3-34 153.001, Tax Code.
3-35 Sec. 2. Testing. In order to determine compliance with the
3-36 standards and for the enforcement of rules adopted under Sections
3-37 3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture
3-38 [ comptroller of public accounts or an authorized representative of
3-39 the comptroller, any law enforcement officer at the direction of a
3-40 prosecuting attorney, or the attorney general] may test any motor
3-41 fuel sold in this state, with or without a complaint about the
3-42 fuel. The commissioner may adopt rules relating to the frequency
3-43 of testing of motor fuels. In adopting rules relating to the
3-44 frequency of testing of motor fuels, the commissioner shall
3-45 consider the nature of the violation, history of past violations,
3-46 and funds available as provided by Section 9(e) of this Act.
3-47 Sec. 3. Posting notice of sale of alcohol and motor fuel
3-48 mixture. (a) A [ motor fuel] dealer in this state may not sell or
3-49 offer for sale any motor fuel from a motor fuel pump that is
3-50 supplied by a storage tank into which motor fuel containing ethanol
3-51 in a mixture in which one percent or more of the mixture measured
3-52 by volume is ethanol or into which motor fuel containing methanol
3-53 in a mixture in which one percent or more of the mixture measured
3-54 by volume is methanol has been delivered within the 60-day period
3-55 preceding the day of sale or offer of sale, unless the dealer
3-56 prominently displays on the pump from which the mixture is sold a
3-57 sign that complies with the requirements of Subsection (b) of this
3-59 (b)(1) The sign required under Subsection (a) of this
3-60 section must be displayed on each face of the motor fuel pump on
3-61 which the price of the motor fuel mixture sold from the pump is
3-62 displayed. The sign must state "Contains Ethanol" or "Contains
3-63 Methanol," as applicable. The sign must appear in contrasting
3-64 colors with block letters at least one-half inch in height and
3-65 one-fourth inch in width and shall be displayed in a clear,
3-66 conspicuous, and prominent manner, visible to customers using
3-67 either side of the pump.
3-68 (2) In addition to the requirements of Subsection
3-69 (b)(1) of this section, if a motor fuel pump is supplied by a
4-1 storage tank into which motor fuel containing 10 percent or more
4-2 ethanol by volume or five percent or more methanol by volume has
4-3 been delivered within the 60-day period preceding the day of the
4-4 sale or offer of sale, the sign shall state the percentage of
4-5 ethanol or methanol by volume, to the nearest whole percent, of the
4-6 motor fuel having the highest percentage of ethanol or methanol
4-7 delivered into that storage tank within the 60-day period. This
4-8 subsection does not prohibit the posting of other alcohol or
4-9 additive information, the information and posting being subject to
4-10 regulations by the commissioner of agriculture.
4-11 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
4-12 LOWER THAN RATING POSTED ON PUMP LABEL. A dealer may not sell or
4-13 offer for sale motor fuel from a motor fuel pump if the motor fuel
4-14 has an automotive fuel rating that is lower than the automotive
4-15 fuel rating for that motor fuel posted on the pump.
4-16 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
4-17 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
4-18 may not deliver or transfer motor fuel to a dealer if the fuel has
4-19 an automotive fuel rating that is lower than the certification of
4-20 the automotive fuel rating the distributor or supplier is required
4-21 to make to the motor fuel dealer under federal law.
4-22 Sec. 4. Documentation of motor fuel mixture sales. (a) A
4-23 distributor, supplier, wholesaler, or jobber of motor fuel, as
4-24 those persons are defined by Section 153.001, Tax Code, may not
4-25 make a delivery of motor fuel containing ethanol or methanol if the
4-26 ethanol or methanol in the motor fuel mixture exceeds one percent
4-27 by volume, other than a delivery made into the fuel supply tanks of
4-28 a motor vehicle, to any outlet in this state unless the person
4-29 delivers to the outlet receiving the delivery at the time of the
4-30 delivery of the mixture:
4-31 (1) the sign described in Section 3 of this Act in
4-32 sufficient quantities for the dealer receiving the motor fuel
4-33 mixture to comply with the requirements of this Act; and
4-34 (2) a manifest, bill of sale, bill of lading, or any
4-35 other document evidencing delivery of the motor fuel containing
4-36 ethanol or methanol, which shall include a statement showing the
4-37 percentage of ethanol or methanol contained in the mixture
4-38 delivered, and the types and percentages of associated cosolvents,
4-39 if any, contained in the mixture delivered. The document shall
4-40 also show delivery of the sign or signs, as applicable, required to
4-41 be delivered by this subsection.
4-42 (b) On the request of any motor fuel user, a dealer must
4-43 reveal the percentage of ethanol contained in motor fuel being
4-44 sold, the percentage of methanol contained in motor fuel being
4-45 sold, and, if the motor fuel contains methanol, the types and
4-46 percentages of associated cosolvents contained in the motor fuel
4-47 being sold.
4-48 (c) The commissioner of agriculture [ comptroller] by rule
4-49 may prescribe the form of the statement required by Subsection (a)
4-50 of this section.
4-51 (d) The signs required to be posted by a [ motor fuel] dealer
4-52 under Section 3 of this Act and delivered to a [ motor fuel] dealer
4-53 under this section shall be obtained from the commissioner of
4-54 agriculture [ comptroller].
4-55 (e) If the commissioner of agriculture [ comptroller]
4-56 determines that certain types of motor fuel, such as diesel or
4-57 liquefied petroleum gas, are not sold in this state as mixtures
4-58 with alcohol in sufficient quantities to warrant regulation of
4-59 those deliveries under this Act, the commissioner [ comptroller] may
4-60 limit the application of Section 3 of this Act and this section to
4-61 motor fuels sold in sufficient quantity to warrant regulation.
4-62 Sec. 5. DEALER AND DELIVERY DOCUMENTS. (a) Each [ motor
4-63 fuel] dealer [ in this state] shall keep for one year [ four years] a
4-64 copy of each manifest, bill of sale, bill of lading, or any other
4-65 document required to be delivered to the dealer by Section 4 of
4-66 this Act. During the first 60 days following delivery of a fuel
4-67 mixture covered by this Act, the dealer shall keep at the station
4-68 or retail outlet where the motor fuel was delivered a copy of each
4-69 manifest, bill of sale, bill of lading, or any other document
5-1 required to be delivered to the dealer by Section 4 of this Act.
5-2 Each distributor, supplier, wholesaler, or jobber of motor fuel
5-3 shall keep for one year [ four years] at the principal place of
5-4 business a copy of each manifest, bill of sale, bill of lading, or
5-5 any other document required to be delivered to the dealer by
5-6 Section 4 of this Act. The documents are subject to inspection by
5-7 the commissioner of agriculture [ comptroller or an authorized
5-8 representative of the comptroller, any law enforcement officer, or
5-9 the attorney general].
5-10 (b) The commissioner of agriculture [ comptroller] by rule
5-11 may prescribe the manner of filing documents required to be kept
5-12 under Subsection (a) of this section, and the time, place, and
5-13 manner of inspection of the documents.
5-14 Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF
5-15 AUTOMOTIVE FUEL RATINGS. (a) Each dealer shall keep for at least
5-16 one year a copy of:
5-17 (1) each delivery ticket or letter of certification on
5-18 which the dealer based a posting of the automotive fuel rating of
5-19 motor fuel contained in a motor fuel pump;
5-20 (2) records of any automotive fuel rating
5-21 determination made by the dealer under 16 C.F.R. Part 306, as
5-22 amended; and
5-23 (3) each delivery ticket or letter of certification
5-24 that is required to be delivered to the dealer under 16 C.F.R. Part
5-25 306, as amended.
5-26 (b) Each distributor or supplier shall keep for at least one
5-27 year at the principal place of business a copy of each delivery
5-28 ticket or letter of certification required to be delivered by the
5-29 distributor or supplier to a dealer under 16 C.F.R. Part 306, as
5-31 (c) A document required to be kept under this section is
5-32 subject to inspection by the commissioner of agriculture.
5-33 Sec. 6. CIVIL ACTION. (a) If a [ motor fuel] dealer or a
5-34 distributor, supplier, wholesaler, or jobber of motor fuel violates
5-35 Section 3, 3A, 3B, 4, or 5 of this Act, any motor fuel user who has
5-36 purchased the fuel and who has suffered damages or has a complaint
5-37 about the product may maintain a civil action against the [ motor
5-38 fuel] dealer or the distributor, supplier, wholesaler, or jobber of
5-39 motor fuel. The action may be brought, without regard to any
5-40 specific amount in damages, in the district court in any county in
5-41 which the [ motor fuel] dealer, distributor, supplier, wholesaler,
5-42 or jobber is doing business or in which the [ motor fuel] user
5-44 (b) In any action under this section, the court shall award
5-45 to the motor fuel user who prevails the amount of actual damages
5-46 and grant such equitable relief as the court determines is
5-47 necessary to remedy the effects of the [ motor fuel] dealer's
5-48 violation or the distributor, supplier, wholesaler, or jobber's
5-49 violation of the provisions of Section 3, 3A, 3B, 4, or 5 of this
5-50 Act, including declaratory judgment, permanent injunctive relief,
5-51 and temporary injunctive relief. In addition, the court shall
5-52 award to the motor fuel user who prevails in an action brought
5-53 hereunder court costs and attorney's fees that are reasonable in
5-54 relation to the amount of work expended.
5-55 (c) In addition to the remedies provided in Subsection (b)
5-56 of this section, if the trier of fact finds that a [ the] violation
5-57 of Section 3, 3A, 3B, 4, or 5 of this Act was committed wilfully or
5-58 knowingly by the defendant, the trier of fact shall award not more
5-59 than three times the amount of actual damages.
5-60 (d) A violation of Section 3, 3A, 3B, 4, or 5 of this Act is
5-61 also a deceptive trade practice under Subchapter E, Chapter 17,
5-62 Business & Commerce Code.
5-63 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
5-64 or 5 of this Act shall be commenced and prosecuted within two years
5-65 after the date the cause of action accrued.
5-66 Sec. 7. CIVIL PENALTY. A [ motor fuel] dealer or a
5-67 distributor, supplier, wholesaler, or jobber of motor fuel who
5-68 violates a provision of Section 3, 3A, 3B, 4, [ or] 5, or 5A of this
5-69 Act forfeits to the state a civil penalty of not less than $200 or
6-1 [ $25 nor] more than $10,000 [ $200].
6-2 Sec. 7A. ADMINISTRATIVE PENALTY. (a) The commissioner of
6-3 agriculture may impose an administrative penalty against a person
6-4 licensed or regulated under this Act who violates this Act or a
6-5 rule or order adopted under this Act.
6-6 (b) The penalty for a violation may be in an amount not to
6-7 exceed $500. Each day a violation continues or occurs is a
6-8 separate violation for purposes of imposing a penalty.
6-9 (c) The amount of the penalty shall be based on:
6-10 (1) the seriousness of the violation, including the
6-11 nature, circumstances, extent, and gravity of any prohibited acts,
6-12 and the hazard or potential hazard created to the health, safety,
6-13 or economic welfare of the public;
6-14 (2) the economic harm to property or the environment
6-15 caused by the violation;
6-16 (3) the history of previous violations;
6-17 (4) the amount necessary to deter future violations;
6-18 (5) efforts to correct the violation; and
6-19 (6) any other matter that justice may require.
6-20 (d) An employee of the Department of Agriculture designated
6-21 by the commissioner to act under this section who determines that a
6-22 violation has occurred may issue to the commissioner of agriculture
6-23 a report that states the facts on which the determination is based
6-24 and the designated employee's recommendation on the imposition of a
6-25 penalty, including a recommendation on the amount of the penalty.
6-26 (e) Within 14 days after the date the report is issued, the
6-27 designated employee shall give written notice of the report to the
6-28 person. The notice may be given by certified mail. The notice
6-29 must include a brief summary of the alleged violation and a
6-30 statement of the amount of the recommended penalty and must inform
6-31 the person that the person has a right to a hearing on the
6-32 occurrence of the violation, the amount of the penalty, or both the
6-33 occurrence of the violation and the amount of the penalty.
6-34 (f) Within 20 days after the date the person receives the
6-35 notice, the person in writing may accept the determination and
6-36 recommended penalty of the designated employee or may make a
6-37 written request for a hearing on the occurrence of the violation,
6-38 the amount of the penalty, or both the occurrence of the violation
6-39 and the amount of the penalty.
6-40 (g) If the person accepts the determination and recommended
6-41 penalty of the designated employee, the commissioner of agriculture
6-42 by order shall approve the determination and impose the recommended
6-44 (h) If the person requests a hearing or fails to respond
6-45 timely to the notice, the designated employee shall set a hearing
6-46 and give notice of the hearing to the person. The hearing shall be
6-47 held by an administrative law judge of the State Office of
6-48 Administrative Hearings. The administrative law judge shall make
6-49 findings of fact and conclusions of law and promptly issue to the
6-50 commissioner of agriculture a proposal for a decision about the
6-51 occurrence of the violation and the amount of a proposed penalty.
6-52 Based on the findings of fact, conclusions of law, and proposal for
6-53 a decision, the commissioner of agriculture by order may find that
6-54 a violation has occurred and impose a penalty or may find that no
6-55 violation occurred.
6-56 (i) The notice of the commissioner of agriculture's order
6-57 given to the person under Chapter 2001, Government Code, must
6-58 include a statement of the right of the person to judicial review
6-59 of the order.
6-60 (j) Within 30 days after the date the commissioner of
6-61 agriculture's order becomes final as provided by Section 2001.144,
6-62 Government Code, the person shall:
6-63 (1) pay the amount of the penalty;
6-64 (2) pay the amount of the penalty and file a petition
6-65 for judicial review contesting the occurrence of the violation, the
6-66 amount of the penalty, or both the occurrence of the violation and
6-67 the amount of the penalty; or
6-68 (3) without paying the amount of the penalty, file a
6-69 petition for judicial review contesting the occurrence of the
7-1 violation, the amount of the penalty, or both the occurrence of the
7-2 violation and the amount of the penalty.
7-3 (k) Within the 30-day period, a person who acts under
7-4 Subsection (j)(3) of this section may:
7-5 (1) stay enforcement of the penalty by:
7-6 (A) paying the amount of the penalty to the
7-7 court for placement in an escrow account; or
7-8 (B) giving to the court a supersedeas bond that
7-9 is approved by the court for the amount of the penalty and that is
7-10 effective until all judicial review of the board's order is final;
7-12 (2) request the court to stay enforcement of the
7-13 penalty by:
7-14 (A) filing with the court a sworn affidavit of
7-15 the person stating that the person is financially unable to pay the
7-16 amount of the penalty and is financially unable to give the
7-17 supersedeas bond; and
7-18 (B) giving a copy of the affidavit to the
7-19 designated employee by certified mail.
7-20 (l) A designated employee who receives a copy of an
7-21 affidavit under Subsection (k)(2) of this section may file with the
7-22 court, within five days after the date the copy is received, a
7-23 contest to the affidavit. The court shall hold a hearing on the
7-24 facts alleged in the affidavit as soon as practicable and shall
7-25 stay the enforcement of the penalty on finding that the alleged
7-26 facts are true. The person who files an affidavit has the burden
7-27 of proving that the person is financially unable to pay the amount
7-28 of the penalty and to give a supersedeas bond.
7-29 (m) If the person does not pay the amount of the penalty and
7-30 the enforcement of the penalty is not stayed, the designated
7-31 employee may refer the matter to the attorney general for
7-32 collection of the amount of the penalty.
7-33 (n) Judicial review of the order of the commissioner of
7-35 (1) is instituted by filing a petition as provided by
7-36 Subchapter G, Chapter 2001, Government Code; and
7-37 (2) is under the substantial evidence rule.
7-38 (o) If the court sustains the occurrence of the violation,
7-39 the court may uphold or reduce the amount of the penalty and order
7-40 the person to pay the full or reduced amount of the penalty. If
7-41 the court does not sustain the occurrence of the violation, the
7-42 court shall order that no penalty is owed.
7-43 (p) When the judgment of the court becomes final, the court
7-44 shall proceed under this subsection. If the person paid the amount
7-45 of the penalty and if that amount is reduced or is not upheld by
7-46 the court, the court shall order that the appropriate amount plus
7-47 accrued interest be remitted to the person. The rate of the
7-48 interest is the rate charged on loans to depository institutions by
7-49 the New York Federal Reserve Bank, and the interest shall be paid
7-50 for the period beginning on the date the penalty was paid and
7-51 ending on the date the penalty is remitted. If the person gave a
7-52 supersedeas bond and if the amount of the penalty is not upheld by
7-53 the court, the court shall order the release of the bond. If the
7-54 person gave a supersedeas bond and if the amount of the penalty is
7-55 reduced, the court shall order the release of the bond after the
7-56 person pays the amount.
7-57 (q) A penalty collected under this section shall be remitted
7-58 to the comptroller for deposit in the general revenue fund.
7-59 (r) All proceedings under this section are subject to
7-60 Chapter 2001, Government Code.
7-61 Sec. 8. Criminal offenses and penalties. (a) A person
7-62 commits an offense if the person intentionally or knowingly
7-63 violates Section 3, 3A, 3B, 4, [ or] 5, or 5A of this Act or any
7-64 rule of the commissioner of agriculture [ comptroller] prescribed to
7-65 enforce or implement those sections of this Act.
7-66 (b) A person commits an offense if the person intentionally
7-67 or knowingly:
7-68 (1) refuses to permit a person authorized by Section 2
7-69 of this Act to test any motor fuel sold or held for sale in this
8-2 (2) refuses to permit inspection of any document
8-3 required to be kept or delivered by this Act upon request of a
8-4 person authorized to inspect such documents by Section 5 or 5A of
8-5 this Act; or
8-6 (3) mutilates, destroys, secretes, forges, or
8-7 falsifies any document, record, report, or sign required to be
8-8 delivered, kept, filed, or posted by this Act or any rule
8-9 prescribed by the commissioner of agriculture [ comptroller] for the
8-10 enforcement of this Act.
8-11 (c) An offense under Subsection (a) of this section is a
8-12 Class C misdemeanor.
8-13 (d) An offense under Subsection (b) of this section is a
8-14 Class B misdemeanor.
8-15 (e) The commissioner of agriculture may request a
8-16 prosecuting attorney to prosecute a violation of this Act [ A user,
8-17 the comptroller or the comptroller's authorized representative, any
8-18 law enforcement officer, or the attorney general may file a
8-19 complaint under this section].
8-20 Sec. 9. RULES AND FEES. (a) The commissioner of
8-21 agriculture [ comptroller] may adopt rules not inconsistent with
8-22 this Act for the regulation of the sale of motor fuels containing
8-23 ethanol and methanol.
8-24 (b) The comptroller by rule may impose fees for testing,
8-25 inspection, statement or record forms, sale of signs, or the
8-26 performance of other services provided as determined necessary by
8-27 the commissioner of agriculture in the administration of this Act.
8-28 (c) In addition to the fees authorized by Subsection (b) of
8-29 this section, the comptroller by rule may impose a fee to be
8-30 collected on a periodic basis determined by the comptroller from
8-31 each distributor, supplier, wholesaler, and jobber who deals in a
8-32 motor fuel, without regard to whether the motor fuel is subject to
8-33 regulation under this Act, as determined necessary by the
8-34 commissioner of agriculture. The comptroller by rule shall
8-35 prescribe the form for reporting and remitting the fees imposed by
8-36 and under this section.
8-37 (d) The fees and penalties imposed by this Act or by a rule
8-38 of the comptroller made pursuant to this Act shall be subject to
8-39 the provisions of Chapter 111 and Sections 153.006, 153.007, and
8-40 153.401, Tax Code, except to the extent those sections are in
8-41 conflict with this Act.
8-42 (e) The total amount of the fees collected annually under
8-43 this Act may not exceed the lesser of:
8-44 (1) the costs of administering and enforcing the
8-45 provisions of this Act as determined necessary by the commissioner
8-46 of agriculture; or
8-47 (2) $500,000.
8-48 (f) The fees collected under this section may be used only:
8-49 (1) by the comptroller to defray the cost of
8-50 collecting the fees and penalties imposed by this Act but may not
8-51 exceed $25,000 annually; or
8-52 (2) by the commissioner of agriculture for the
8-53 administration and enforcement of this Act [ by the comptroller and
8-54 shall be deposited in the Comptroller's Operating Fund 062].
8-55 Sec. 10. [ Contracting for] enforcement. The commissioner of
8-56 agriculture shall enforce this Act and [ comptroller] may not
8-57 contract for the enforcement of this Act [ after due notice].
8-58 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
8-59 commissioner of agriculture may make a copy of a manifest, bill of
8-60 sale, bill of lading, delivery ticket, letter of certification, or
8-61 other document the commissioner may inspect under this Act. The
8-62 commissioner may deliver a copy of a document made as provided by
8-63 this section to the federal government for purposes of prosecuting
8-64 a person for a violation of federal law relating to the sale or
8-65 transfer of motor fuel.
8-66 Sec. 12. BUSINESS OPPORTUNITY INFORMATION. The Texas
8-67 Department of Commerce shall cooperate with the Department of
8-68 Agriculture to:
8-69 (1) disseminate information regarding business
9-1 opportunities available to a person who performs automotive fuel
9-2 rating tests; and
9-3 (2) develop markets for providers of automotive fuel
9-4 rating testing services.
9-5 SECTION 8. Effective September 1, 1999, Chapter 1033, Acts
9-6 of the 71st Legislature, Regular Session, 1989 (Article 8614,
9-7 Vernon's Texas Civil Statutes), is amended by adding Section 13 to
9-8 read as follows:
9-9 Sec. 13. PRIVATE TESTING REQUIREMENT. (a) Employees of the
9-10 Department of Agriculture or, by interagency contract, employees of
9-11 other state agencies acting on behalf of the department may not
9-12 perform more than 50 percent of automotive fuel rating tests
9-13 required by law.
9-14 (b) Subsection (a) does not prohibit an agent of the
9-15 Department of Agriculture from performing an automotive fuel rating
9-17 (c) This section expires September 1, 2001.
9-18 SECTION 9. Effective September 1, 2001, Chapter 1033, Acts
9-19 of the 71st Legislature, Regular Session, 1989 (Article 8614,
9-20 Vernon's Texas Civil Statutes), is amended by adding Section 13A to
9-21 read as follows:
9-22 Sec. 13A. PRIVATE TESTING REQUIREMENT. (a) Employees of
9-23 the Department of Agriculture or, by interagency contract,
9-24 employees of other state agencies acting on behalf of the
9-25 department may not perform more than 25 percent of the automotive
9-26 fuel rating tests required by law.
9-27 (b) Subsection (a) does not prohibit an agent of the
9-28 Department of Agriculture from performing an automotive fuel rating
9-30 SECTION 10. Section 10.03, Chapter 419, Acts of the 74th
9-31 Legislature, 1995, is amended to read as follows:
9-32 Sec. 10.03. TRANSITION: LICENSING. Subchapter H, Chapter
9-33 13, Agriculture Code, [ as added by this Act,] relating to
9-34 inspecting or testing of a weighing or measuring device, applies to
9-35 a person on or after September 1, 1997 [ only after the Department
9-36 of Agriculture reasonably demonstrates to the Legislative Budget
9-37 Board that the department's licensing programs for inspection and
9-38 testing of liquefied petroleum gas meters and inspection and
9-39 testing of ranch scales under Subchapters F and G, Chapter 13,
9-40 Agriculture Code, respectively, will attain the performance goals
9-41 established by the Legislative Budget Board].
9-42 SECTION 11. (a) This Act takes effect September 1, 1997.
9-43 (b) The changes in law made by Section 7 of this Act apply
9-44 only to a delivery, transfer, or sale, as applicable, of motor fuel
9-45 that occurs on or after September 1, 1997. A delivery, transfer,
9-46 or sale of motor fuel that occurs before September 1, 1997, is
9-47 governed by the law in effect immediately before the effective date
9-48 of this Act, and that law is continued in effect for that purpose.
9-49 (c) All rules adopted by the comptroller for the
9-50 administration of Chapter 1033, Acts of the 71st Legislature,
9-51 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
9-52 Statutes), in effect on September 1, 1997, remain in effect until
9-53 amended or repealed by the commissioner of agriculture.
9-54 (d) Before December 1, 1997, each entity named in Section
9-55 403.321, Government Code, as added by this Act, shall appoint a
9-56 representative to serve as a member of the Interagency Task Force
9-57 on Texas Retail Food Store Regulation.
9-58 (e) The Parks and Wildlife Department and the Texas
9-59 Department of Health shall enter into the memorandum of agreement
9-60 under Section 47.0113, Parks and Wildlife Code, as added by this
9-61 Act, and shall assume their responsibilities as provided by this
9-62 Act and the agreement before January 1, 1999.
9-63 (f) The Interagency Task Force on Texas Retail Food Store
9-64 Regulation shall report to the legislature under Section 403.321,
9-65 Government Code, as added by this Act, before January 1, 1999.
9-66 (g) The changes in law made by this Act relating to a
9-67 penalty that may be imposed apply only to a violation that occurs
9-68 on or after the effective date of this Act. A violation occurs on
9-69 or after the effective date of this Act if each element of the
10-1 violation occurs on or after that date. A violation that occurs
10-2 before the effective date of this Act is covered by the law in
10-3 effect when the violation occurred, and the former law is continued
10-4 in effect for that purpose.
10-5 SECTION 12. The importance of this legislation and the
10-6 crowded condition of the calendars in both houses create an
10-7 emergency and an imperative public necessity that the
10-8 constitutional rule requiring bills to be read on three several
10-9 days in each house be suspended, and this rule is hereby suspended.
10-10 * * * * *