Amend HB 1059 by striking all below the enacting clause and
substituting the following:
SECTION 1. Section 2, Article 21.60, Insurance Code, is
amended by amending Subdivision (3) and adding Subdivisions (5) and
(6) to read as follows:
(3) "Class A amusement ride" means an amusement ride
with a fixed location and designed primarily for use by children 12
years of age or younger.
(5) "Commissioner" means the commissioner of
insurance.
(6) "Mobile amusement ride" means an amusement ride
that is designed or adapted to be moved from one location to
another and is not fixed at a single location.
SECTION 2. Section 3(a), Article 21.60, Insurance Code, is
amended to read as follows:
(a) The commissioner <board> shall administer and enforce
this article. The commissioner <board> shall establish reasonable
and necessary fees in an amount not to exceed $40 <$20> per year
for each amusement ride covered by this Act.
SECTION 3. Section 4, Article 21.60, Insurance Code, is
amended by amending Subsections (a) and (b) and adding Subsections
(d), (e), (f), (g), (h), and (i) to read as follows:
(a) A person may not operate an amusement ride unless the
person <he>:
(1) has the amusement ride inspected at least once
annually by an insurer or a person with whom the insurer has
contracted and obtains from that insurer or person a written
certificate that the inspection has been made and that the
amusement ride meets the standards for coverage and is covered by
the insurance required by Subdivision <Subsection> (2) of this
subsection <section>. If at any time the inspection reveals that
an amusement ride does not meet the insurer's underwriting
standards, the insurer shall so notify the owner or operator and in
the event repair or replacement of equipment is required it shall
be the responsibility of the owner or operator to make such repair
or replacement before the amusement ride is offered for public use;
(2) has an insurance policy currently in force written
by an insurance company authorized to do business in this state, a
surplus lines insurer as defined by Article 1.14-2 of this code, or
an independently procured policy subject to Article 1.14-1 of this
code, in an amount of not less than $100,000 per occurrence with a
$300,000 annual aggregate for Class A amusement rides and an amount
of at least <not less than> $1,000,000 per occurrence or a higher
amount established by rule of the commissioner for Class B
amusement rides insuring the owner or operator against liability
for injury to persons arising out of the use of the amusement ride;
(3) files with the commissioner <board>, in the manner
required by this article, the inspection certificate and the
insurance policy required by this section or a photocopy of such a
certificate or policy authorized by the commissioner <board>; and
(4) files with each sponsor, lessor, landowner, or
other person responsible for an amusement ride being offered for
use by the public a photocopy of the inspection certificate and the
insurance policy required by this section <certificate stating that
the insurance required by Subdivision (2) of this section is in
effect>.
(b) The inspection required under Subsection (a)(1) of this
section must include a method to test the stress- and wear-related
damage of critical parts of a ride that the manufacturer of the
amusement ride <board> determines are reasonably subject to failure
as the result of stress and wear and could cause injury to a member
of the general public as a result of a failure.
(d) A person who operates an amusement ride in this state
shall maintain accurate records of any governmental action taken in
any state relating to the amusement ride, including an inspection
resulting in the repair or replacement of equipment used in the
operation of the amusement ride. The operator shall file with the
commissioner on a quarterly basis a report on a form designed by
the commissioner describing each governmental action taken in the
quarter covered by the report for which the operator is required by
this subsection to maintain records. A report is not required
under this section in any quarter in which no reportable
governmental action was taken in any state in which the person
operated the amusement ride.
(e) A person who operates an amusement ride shall maintain
for not less than two years at any location where the ride is
operated, for inspection by a municipal, county, or state law
enforcement official, a photocopy of any quarterly report required
under Subsection (c) or (d) of this section to be filed with the
commissioner.
(f) The commissioner shall adopt rules establishing
categories of Class B amusement rides and may require the owner or
operator of specific categories of Class B amusement rides to
maintain on an amusement ride a liability insurance policy with
coverage that exceeds $1,000,000 per occurrence. The commissioner
shall establish categories based on the potential danger of
amusement rides. In determining the potential danger of an
amusement ride, the commissioner may consider:
(1) the safety history of the specific ride, type of
ride, or manufacturer of the ride; and
(2) factors relating to the manner in which the ride
is normally operated, including the speed and height of the ride.
(g) The commissioner shall adopt rules requiring operators
of mobile amusement rides to perform inspections of mobile
amusement rides, including rules requiring daily inspections of
safety restraints. Rules adopted under this subsection may apply
to specific rides of specific manufacturers. The commissioner
shall prescribe forms for inspections required under this
subsection and shall require records of the inspections to be made
available to the public at any location at which an amusement ride
is operated.
(h) The commissioner shall adopt rules requiring that signs
be posted to inform the public how to report an amusement ride that
appears to be unsafe or to report an amusement ride operator who
appears to be violating the law. The location of a sign required
under this subsection may include any entrance to the location at
which an amusement ride is located and any location at which
tickets for an amusement ride are available.
(i) An amusement ride covered by this article that is sold,
maintained, or operated in this state shall comply with standards
established by the American Society of Testing and Materials
(ASTM). Those standards are minimum standards. To the extent that
the standards of the American Society of Testing and Materials
conflict with the requirements of this article, the more stringent
requirement or standard applies.
SECTION 4. Section 8, Article 21.60, Insurance Code, is
amended to read as follows:
Sec. 8. INJUNCTIONS. The district attorney of each county in
which an amusement ride is operated or, on request of the
commissioner of insurance, the attorney general or one of his
agents may seek an injunction against any person operating an
amusement ride in violation of this article or in violation of a
rule adopted by the commissioner under Section 4 of this article.
SECTION 5. The heading of Section 9, Article 21.60,
Insurance Code, is amended to read as follows:
Sec. 9. PENALTIES<; LOCAL ENFORCEMENT>.
SECTION 6. Section 9, Article 21.60, Insurance Code, is
amended by amending Subsections (a) and (c) and adding Subsection
(f) to read as follows:
(a) A person commits an offense if the person <he> fails to
comply with any requirement under Section 4, <or> 5, 10(e), 10(f),
or 10(g) of this article or under any rule adopted by the
commissioner under Section 4 of this article.
(c) An offense under this section is a Class B <C>
misdemeanor.
(f) The prosecuting attorney in a case in which a person is
convicted of an offense under this section shall report the offense
to the department not later than the 90th day after the date of the
conviction.
SECTION 7. Article 21.60, Insurance Code, is amended by
adding Section 10 to read as follows:
Sec. 10. ENFORCEMENT. (a) A municipal, county, or state law
enforcement official may determine compliance with Section 4 or 5
of this article in conjunction with the commissioner and may
institute an action in a court of competent jurisdiction to enforce
this article.
(b) A municipal, county, or state law enforcement official
may enter and inspect without notice any amusement ride at any time
to ensure public safety.
(c) The operator of an amusement ride shall immediately
provide the inspection certificate and the insurance policy
required by Section 4 of this article to a municipal, county, or
state law enforcement official requesting the information. A
photocopy of the inspection certificate or insurance policy may be
provided instead of the certificate or policy.
(d) Except as provided by Subsection (i) of this section, a
municipal, county, or state law enforcement official may
immediately prohibit operation of an amusement ride if:
(1) the operator of the amusement ride is unable to
provide the documents or a photocopy of the documents required by
Subsection (c) of this section;
(2) the law enforcement official reasonably believes
the amusement ride is not in compliance with Section 4(a) of this
article; or
(3) the operation of the amusement ride, conduct of a
person operating the amusement ride, conduct of a person assembling
the amusement ride if it is a mobile amusement ride, or any other
circumstance causes the law enforcement official to reasonably
believe that the amusement ride is unsafe or the safety of a
passenger on the amusement ride is threatened.
(e) If the operation of an amusement ride is prohibited
under Subsection (d)(1) or (2) of this section, a person may not
operate the amusement ride unless:
(1) the operator presents to the appropriate
municipal, county, or state law enforcement official proof of
compliance with Section 4(a) of this article; or
(2) the commissioner or the commissioner's designee
determines that on the date the amusement ride's operation was
prohibited the operator had on file with the board the documents
required by Section 4(a) of this article and issues a written
statement permitting the amusement ride to resume operation.
(f) If on the date an amusement ride's operation is
prohibited under Subsection (d)(3) of this section the amusement
ride is not in compliance with Section 4(a) of this article, a
person may not operate the amusement ride until after a person
subsequently complies with Section 4(a) of this article.
(g) If on the date an amusement ride's operation is
prohibited under Subsection (d)(3) of this section the amusement
ride is in compliance with Section 4(a) of this article, a person
may not operate the amusement ride until:
(1) on-site corrections are made;
(2) an order from a district judge, county judge,
judge of a county court at law, justice of the peace, or municipal
judge permits the amusement ride to resume operation; or
(3) an insurance company insuring the amusement ride
on the date the amusement ride's operation was prohibited:
(A) reinspects the amusement ride in the same
manner required under Section 4(a) of this article; and
(B) delivers to the commissioner or the
commissioner's designee and the appropriate law enforcement
official a reinspection certificate:
(i) stating that the required reinspection
has occurred;
(ii) stating that the amusement ride meets
coverage standards and is covered by insurance in compliance with
Section 4(a) of this article; and
(iii) explaining the necessary repairs, if
any, that have been made to the amusement ride after its operation
was prohibited.
(h) The owner or operator of the amusement ride may file
suit for relief from a prohibition under Subsection (d) or (k) of
this section in a district court in the county in which the
amusement ride was located when the prohibition against operation
occurred.
(i) Subsection (d) of this section does not apply to an
amusement ride with a fixed location and operated at an amusement
park that was attended by more than 200,000 customers in the year
preceding the inspection under Subsection (b) of this section.
(j) Except when the act or omission involves intentional
conduct, gross negligence, or malice, a law enforcement official is
not liable for the official's failure to terminate operation of an
amusement ride under Subsection (d) of this section.
(k) Except as provided by Subsection (l) or (m) of this
section, a mobile amusement ride that causes a death may not be
operated. The commissioner may prohibit the operation of mobile
amusement rides that are substantially similar to a mobile
amusement ride that causes a death.
(l) If a mobile amusement ride was in compliance with
Section 4(a) of this article when its operation was initially
prohibited under Subsection (k) of this section, a person may
resume operating the mobile amusement ride only after:
(1) an insurance company insuring the amusement ride
on the date its operation was prohibited:
(A) reinspects the amusement ride in the same
manner required under Section 4(a) of this article; and
(B) delivers to the commissioner or the
commissioner's designee a reinspection certificate:
(i) stating that the required reinspection
has occurred;
(ii) stating that the amusement ride meets
coverage standards and is covered by insurance in compliance with
Section 4(a) of this article; and
(iii) explaining the necessary repairs, if
any, that have been made to the amusement ride after its operation
was prohibited; and
(2) the commissioner or the commissioner's designee
reviews the reinspection certificate.
(m) If a mobile amusement ride was not in compliance with
Section 4(a) of this article when its operation was initially
prohibited under Subsection (k) of this section, a person may
resume operating the mobile amusement ride only after:
(1) the person subsequently complies with Section 4(a)
of this article; and
(2) the commissioner or the commissioner's designee
reviews the inspection certificate and insurance policy.
SECTION 8. Section 49.01, Penal Code, is amended by adding
Subdivisions (5) and (6) to read as follows:
(5) "Amusement ride" has the meaning assigned by
Section 2, Article 21.60, Insurance Code.
(6) "Mobile amusement ride" has the meaning assigned
by Section 2, Article 21.60, Insurance Code.
SECTION 9. Chapter 49, Penal Code, is amended by adding
Section 49.065 to read as follows:
Sec. 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE
INTOXICATED. (a) A person commits an offense if the person is
intoxicated while operating an amusement ride or while assembling a
mobile amusement ride.
(b) Except as provided by Subsection (c) and Section 49.09,
an offense under this section is a Class B misdemeanor with a
minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this
section that at the time of the offense the person operating the
amusement ride or assembling the mobile amusement ride had an open
container of alcohol in the person's immediate possession, the
offense is a Class B misdemeanor with a minimum term of confinement
of six days.
SECTION 10. Section 49.07(a), Penal Code, is amended to read
as follows:
(a) A person commits an offense if the person, by accident
or mistake:
(1) <,> while operating an aircraft, watercraft, or
amusement ride while intoxicated, or while operating a motor
vehicle in a public place while intoxicated, by reason of that
intoxication causes serious bodily injury to another; or
(2) as a result of assembling a mobile amusement ride
while intoxicated causes serious bodily injury to another.
SECTION 11. Section 49.08(a), Penal Code, is amended to read
as follows:
(a) A person commits an offense if the person:
(1) operates a motor vehicle in a public place,
operates an aircraft, <or> a watercraft, or an amusement ride, or
assembles a mobile amusement ride; and
(2) is intoxicated and by reason of that intoxication
causes the death of another by accident or mistake.
SECTION 12. Sections 49.09(a), (b), (d), and (e), Penal
Code, are amended to read as follows:
(a) If it is shown on the trial of an offense under Section
49.04, 49.05, <or> 49.06, or 49.065 that the person has previously
been convicted one time of an offense relating to the operating of
a motor vehicle while intoxicated, an offense of operating an
aircraft while intoxicated, <or> an offense of operating a
watercraft while intoxicated, or an offense of operating or
assembling an amusement ride while intoxicated, the offense is a
Class A misdemeanor, with a minimum term of confinement of 30 days.
(b) If it is shown on the trial of an offense under Section
49.04, 49.05, <or> 49.06, or 49.065 that the person has previously
been convicted two times of an offense relating to the operating of
a motor vehicle while intoxicated, an offense of operating an
aircraft while intoxicated, <or> an offense of operating a
watercraft while intoxicated, or an offense of operating or
assembling an amusement ride while intoxicated, the offense is a
felony of the third degree.
(d) For the purposes of this section, a conviction for an
offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08
that occurs on or after September 1, 1994, is a final conviction,
whether the sentence for the conviction is imposed or probated.
(e) A conviction may not be used for purposes of enhancement
under this section if:
(1) the conviction was a final conviction under
Subsection (d) and was for an offense committed more than 10 years
before the offense for which the person is being tried was
committed; and
(2) the person has not been convicted of an offense
under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any
offense related to operating a motor vehicle while intoxicated
committed within 10 years before the date on which the offense for
which the person is being tried was committed.
SECTION 13. Section 49.09(c), Penal Code, is amended by
adding Subdivision (4) to read as follows:
(4) "Offense of operating or assembling an amusement
ride while intoxicated" means:
(A) an offense under Section 49.065;
(B) an offense under Section 49.07 or 49.08, if
the offense involved the operation or assembly of an amusement
ride; or
(C) an offense under the law of another state
that prohibits the operation of an amusement ride while intoxicated
or the assembly of a mobile amusement ride while intoxicated.
SECTION 14. Section 49.10, Penal Code, is amended to read as
follows:
Sec. 49.10. NO DEFENSE. In a prosecution under Section
49.03, 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that
the defendant is or has been entitled to use the alcohol,
controlled substance, drug, dangerous drug, or other substance is
not a defense.
SECTION 15. Section 9(e), Article 21.60, Insurance Code, is
repealed.
SECTION 16. (a) This Act takes effect September 1, 1999.
(b) The change in law made by this Act to Section 9, Article
21.60, Insurance Code, applies only to an offense committed on or
after the effective date of this Act.
(c) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense is committed before the
effective date of this Act if any element of the offense occurs
before that date.
SECTION 17. The importance of this legislation and the
crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the
constitutional rule requiring bills to be read on three several
days in each house be suspended, and this rule is hereby
suspended.