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

1-36     association;

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

1-47     force.

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

1-59     concerning:

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

2-12     opportunities;

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

2-25     follows:

2-26           (a)  Except as provided by Subsection (c), the [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

2-45     state.

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

3-58     section.

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

5-30     amended.

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

5-43     resides.

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

6-43     penalty.

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;

7-11     or

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

7-34     agriculture:

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

 8-1     state;

 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

9-16     test.

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

9-29     test.

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                                 * * * * *