By Gray H.B. No. 2039
76R3408 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of certain abusable volatile chemicals;
1-3 providing for injunctive relief and administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 485, Health and Safety Code, is amended
1-6 to read as follows:
1-7 CHAPTER 485. ABUSABLE VOLATILE CHEMICALS
1-8 [GLUES AND AEROSOL PAINTS]
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 485.001. DEFINITIONS. In this chapter:
1-11 (1) "Abusable volatile chemical [glue or aerosol
1-12 paint]" means a chemical, including [glue or] aerosol paint, that
1-13 [is]:
1-14 (A) is packaged in a container subject to
1-15 [holding a pint or less by volume or less than two pounds by
1-16 weight; and]
1-17 [(B) labeled in accordance with] the labeling
1-18 requirements concerning precautions against inhalation established
1-19 under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
1-20 et seq.), as amended, and [under] regulations adopted under that
1-21 Act and is labeled in a manner that provides notice that the
1-22 chemical is vapor harmful;
1-23 (B) when inhaled, ingested, or otherwise
1-24 introduced into a person's body, may:
2-1 (i) affect the person's central nervous
2-2 system;
2-3 (ii) create or induce in the person a
2-4 condition of intoxication, hallucination, or elation; or
2-5 (iii) change, distort, or disturb the
2-6 person's eyesight, thinking process, balance, or coordination; and
2-7 (C) is not:
2-8 (i) a pesticide subject to Chapter 76,
2-9 Agriculture Code, or to the Federal Environmental Pesticide Control
2-10 Act of 1972 (7 U.S.C. Section 136 et seq.), as amended;
2-11 (ii) a food, drug, or cosmetic subject to
2-12 Chapter 431 or to the Federal Food, Drug, and Cosmetic Act (21
2-13 U.S.C. Section 301 et seq.), as amended; or
2-14 (iii) a beverage subject to the Federal
2-15 Alcohol Administration Act (27 U.S.C. Section 201 et seq.), as
2-16 amended.
2-17 (2) "Aerosol paint" means an aerosolized paint
2-18 product, including a clear or pigmented lacquer or finish.
2-19 (3) "Board" means the Texas Board of Health.
2-20 (4) "Commissioner" means the commissioner of health.
2-21 (5) [(4)] "Deliver" means to make the actual or
2-22 constructive transfer from one person to another of an abusable
2-23 volatile chemical [glue or aerosol paint], regardless of whether
2-24 there is an agency relationship. The term includes an offer
2-25 [offering] to sell an abusable volatile chemical [glue or aerosol
2-26 paint].
2-27 (6) [(5)] "Delivery" means the act of delivering.
3-1 (7) [(6)] "Department" means the Texas Department of
3-2 Health.
3-3 [(7) "Glue" means an adhesive substance intended to be
3-4 used to join two surfaces.]
3-5 (8) "Inhalant paraphernalia" means equipment,
3-6 products, or materials of any kind that are used or intended for
3-7 use in inhaling, ingesting, or otherwise introducing into the human
3-8 body an abusable volatile chemical [glue or aerosol paint in
3-9 violation of Section 485.031]. The term includes:
3-10 (A) a can, tube, or other container used as the
3-11 original receptacle for an abusable volatile chemical [glue or
3-12 aerosol paint]; or
3-13 (B) a can, tube, balloon, bag, fabric, bottle,
3-14 or other container used to contain, concentrate, or hold in
3-15 suspension an abusable volatile chemical [glue or aerosol paint,]
3-16 or vapors of the chemical [glue or paint].
3-17 (9) "Sell" includes a conveyance, exchange, barter, or
3-18 trade.
3-19 SUBCHAPTER B. ADDITIVES, SALES PERMITS, AND SIGNS
3-20 Sec. 485.011. ADDITIVES. (a) The board [commissioner] by
3-21 rule shall:
3-22 (1) approve and designate additive materials to be
3-23 included in abusable volatile chemicals [glue or aerosol paint];
3-24 and
3-25 (2) prescribe the proportions of additive materials to
3-26 be placed in abusable volatile chemicals [glue or aerosol paint].
3-27 (b) The rules must be designed to safely and effectively
4-1 discourage intentional abuse by inhalation of abusable volatile
4-2 chemicals [glue or aerosol paint] at the lowest practicable cost to
4-3 the manufacturers and distributors of the chemicals [glue or
4-4 paint].
4-5 Sec. 485.012. PERMIT REQUIRED. A person may not sell an
4-6 abusable volatile chemical [glue or aerosol paint] at retail unless
4-7 the person or the person's employer holds [has], at the time of the
4-8 sale, a volatile chemical [glue and paint] sales permit for the
4-9 location of the sale.
4-10 Sec. 485.013. ISSUANCE AND RENEWAL OF PERMIT. (a) To be
4-11 eligible for the issuance or renewal of a volatile chemical [glue
4-12 and paint] sales permit, a person must:
4-13 (1) hold [have] a sales tax permit that has been
4-14 issued to the person;
4-15 (2) complete and return to the department an
4-16 application as required by the department; and
4-17 (3) pay to the department the [a $25] application fee
4-18 established under Section 485.014 for each location at which an
4-19 abusable volatile chemical [glue and aerosol paint] may be sold by
4-20 the person holding [on obtaining] a volatile chemical [glue and
4-21 paint] sales permit.
4-22 (b) The board [department] shall adopt rules as necessary to
4-23 administer this chapter, including application procedures and
4-24 procedures by which the department shall give each permit holder
4-25 [permittee] reasonable notice of permit expiration and renewal
4-26 requirements.
4-27 (c) The department shall issue or deny a permit and notify
5-1 the applicant of the department's action not later than the 60th
5-2 day after the date on which the department receives the complete
5-3 application and appropriate fee. If the department denies an
5-4 application, the department shall include in the notice the reasons
5-5 for the denial.
5-6 (d) A permit issued or renewed under this chapter is valid
5-7 for one year from the date of issuance or renewal.
5-8 (e) A permit is not valid if the permit holder has been
5-9 convicted more than once in the preceding year of an offense [that
5-10 is] committed:
5-11 (1) at a [the] location for which the permit is
5-12 issued; and
5-13 (2) under Section [484.005(a),] 485.031, 485.032,
5-14 485.033, or 485.034.
5-15 (f) A permit issued by the department is the property of the
5-16 department and must be surrendered on demand by the department.
5-17 (g) The department shall prepare an annual roster of permit
5-18 holders.
5-19 (h) The department shall monitor and enforce compliance with
5-20 this chapter.
5-21 Sec. 485.014. FEE. The board by rule may establish fees in
5-22 amounts not to exceed $50 for the issuance of a permit under this
5-23 chapter.
5-24 Sec. 485.015 [485.014]. PERMIT AVAILABLE FOR INSPECTION. A
5-25 permit holder must have the volatile chemical [glue and paint]
5-26 sales permit or a copy of the permit available for inspection by
5-27 the public at each location [the place] where the permit holder
6-1 sells an abusable volatile chemical [glue and aerosol paint].
6-2 Sec. 485.016 [485.015]. REFUSAL TO ISSUE OR RENEW PERMIT. A
6-3 proceeding for the failure to issue or renew a volatile chemical
6-4 [glue and paint] sales permit under Section 485.013 or for an
6-5 appeal from that proceeding is governed by the contested case
6-6 provisions of Chapter 2001, Government Code.
6-7 Sec. 485.017 [485.016]. DISPOSITION OF FUNDS; EDUCATION AND
6-8 PREVENTION PROGRAMS. (a) The department shall [receive and]
6-9 account for all amounts [funds] received under Section 485.014
6-10 [485.013] and send those amounts [the funds as they are received]
6-11 to the comptroller.
6-12 (b) The comptroller shall deposit the amounts received under
6-13 Subsection (a) in the state treasury [those funds] to the credit of
6-14 a separate account in the general revenue fund to be known as the
6-15 inhalant abuse prevention account. Money in the account may [to] be
6-16 used only to:
6-17 (1) administer, monitor, and enforce this chapter; and
6-18 (2) finance statewide education projects concerning
6-19 the hazards of abusable volatile chemicals [glue or aerosol paint]
6-20 and the prevention of inhalant abuse.
6-21 (c) The department shall enter into a memorandum of
6-22 understanding with the Texas Commission on Alcohol and Drug Abuse
6-23 to implement the education and prevention programs.
6-24 Sec. 485.018 [485.017]. SIGNS. A business establishment
6-25 that sells an abusable volatile chemical [glue or aerosol paint] at
6-26 retail shall display a conspicuous sign, in English and Spanish,
6-27 that states the following:
7-1 It is unlawful for a person to sell or deliver an
7-2 abusable volatile chemical [glue or aerosol paint] to a
7-3 person under 18 years of age. Except in limited
7-4 situations, such an offense is a state jail [3rd
7-5 degree] felony.
7-6 It is also unlawful for a person to abuse a volatile
7-7 chemical [glue or aerosol paint] by inhaling,
7-8 ingesting, applying, using, or possessing with intent
7-9 to inhale, ingest, apply, or use a volatile chemical
7-10 [glue or aerosol paint] in a manner designed to affect
7-11 the central nervous system. Such an offense is a
7-12 Class B misdemeanor.
7-13 Sec. 485.019 [485.018]. PROHIBITED ORDINANCE AND RULE.
7-14 (a) A political subdivision or an agency of this [the] state may
7-15 not enact an ordinance or rule that requires a business
7-16 establishment to display an abusable volatile chemical [glue or
7-17 aerosol paint] in a manner that makes the chemical [glue or paint]
7-18 accessible to patrons of the business only with the assistance of
7-19 personnel of the business.
7-20 (b) This section does not apply to an ordinance or rule that
7-21 was enacted before September 1, 1989.
7-22 Sec. 485.020 [485.019]. RESTRICTION OF ACCESS TO AEROSOL
7-23 PAINT. (a) A business establishment that holds a permit under
7-24 Section 485.012 and that displays aerosol paint shall display the
7-25 paint:
7-26 (1) in a place that is in the line of sight of a
7-27 cashier or in the line of sight from a workstation normally
8-1 continuously occupied during business hours;
8-2 (2) in a manner that makes the paint accessible to a
8-3 patron of the business establishment only with the assistance of an
8-4 employee of the establishment; or
8-5 (3) in an area electronically protected, or viewed by
8-6 surveillance equipment that is monitored, during business hours.
8-7 (b) This section does not apply to a business establishment
8-8 that has in place a computerized checkout system at the point of
8-9 sale for merchandise that alerts the cashier that a person
8-10 purchasing aerosol paint must be over 18 years of age.
8-11 (c) A court may issue a warning to a business establishment
8-12 or impose a civil penalty of $50 on the business establishment for
8-13 a first violation of this section. After receiving a warning or
8-14 penalty for the first violation, the business establishment is
8-15 liable to the state for a civil penalty of $100 for each subsequent
8-16 violation.
8-17 (d) For the third violation of this section in a calendar
8-18 year, a court may issue an injunction prohibiting the business
8-19 establishment from selling aerosol paint for a period of not more
8-20 than two years. A business establishment that violates the
8-21 injunction is liable to the state for a civil penalty of $100, in
8-22 addition to any other penalty authorized by law, for each day the
8-23 violation continues.
8-24 (e) If a business establishment fails to pay a civil penalty
8-25 under this section, the court may issue an injunction prohibiting
8-26 the establishment from selling aerosol paint until the
8-27 establishment pays the penalty, attorney's fees, and court costs.
9-1 (f) The district or county attorney for the county in which
9-2 a violation of this section is alleged to have occurred, or the
9-3 attorney general, if requested by the district or county attorney
9-4 for that county, may file suit for the issuance of a warning, the
9-5 collection of a penalty, or the issuance of an injunction.
9-6 (g) A penalty collected under this section shall be sent to
9-7 the comptroller for deposit in the state treasury to the credit of
9-8 the general revenue fund.
9-9 (h) This section applies only to a business establishment
9-10 that is located in a county with a population of 75,000 or more.
9-11 SUBCHAPTER C. CRIMINAL PENALTIES
9-12 Sec. 485.031. POSSESSION AND USE. (a) A person commits an
9-13 offense if the person inhales, ingests, applies, uses, or possesses
9-14 an abusable volatile chemical [glue or aerosol paint] with intent
9-15 to inhale, ingest, apply, or use the chemical [abusable glue or
9-16 aerosol paint] in a manner:
9-17 (1) contrary to directions for use, cautions, or
9-18 warnings appearing on a label of a container of the chemical [glue
9-19 or paint]; and
9-20 (2) designed to:
9-21 (A) affect the person's central nervous system;
9-22 (B) create or induce a condition of
9-23 intoxication, hallucination, or elation; or
9-24 (C) change, distort, or disturb the person's
9-25 eyesight, thinking process, balance, or coordination.
9-26 (b) An offense under this section is a Class B misdemeanor.
9-27 Sec. 485.032. MANUFACTURE AND DELIVERY. (a) A person
10-1 commits an offense if the person intentionally manufactures,
10-2 delivers, or possesses with intent to manufacture or deliver an
10-3 abusable volatile chemical [glue or aerosol paint] that does not
10-4 contain additive material in accordance with rules adopted by the
10-5 board [commissioner].
10-6 (b) It is an affirmative defense to prosecution under this
10-7 section that the abusable volatile chemical [glue or aerosol paint]
10-8 is packaged in bulk quantity containers, each of which holds at
10-9 least two gallons, and is intended for ultimate use only by
10-10 industrial or commercial enterprises.
10-11 (c) An offense under this section is a Class A misdemeanor.
10-12 Sec. 485.033. DELIVERY TO A MINOR. (a) A person commits an
10-13 offense if the person [intentionally, knowingly, or] recklessly
10-14 delivers an abusable volatile chemical [glue or aerosol paint] to a
10-15 person who is younger than 18 years of age.
10-16 (b) It is a defense to prosecution under this section that:
10-17 (1) the abusable volatile chemical [glue or aerosol
10-18 paint] that was delivered contains additive material that
10-19 effectively discourages intentional abuse by inhalation and [or] is
10-20 in compliance with rules adopted by the board [commissioner] under
10-21 Section 485.011; or
10-22 (2) the person making the delivery is not the
10-23 manufacturer of the chemical and the manufacturer of the chemical
10-24 failed to label the chemical in a manner that provided notice that
10-25 the chemical was vapor harmful.
10-26 (c) It is an affirmative defense to prosecution under this
10-27 section that:
11-1 (1) the person making the delivery is an adult having
11-2 supervisory responsibility over the person younger than 18 years of
11-3 age and:
11-4 (A) the adult permits the use of the abusable
11-5 volatile chemical [glue or aerosol paint] only under the adult's
11-6 direct supervision and in the adult's presence and only for its
11-7 intended purpose; and
11-8 (B) the adult removes the chemical [substance]
11-9 from the person younger than 18 years of age on completion of that
11-10 use; or
11-11 (2) the person to whom the abusable volatile chemical
11-12 [glue or aerosol paint] was delivered presented to the defendant an
11-13 apparently valid Texas driver's license or an identification
11-14 certificate [card], issued by the Department of Public Safety of
11-15 the State of Texas and containing a physical description consistent
11-16 with the person's appearance, that purported to establish that the
11-17 person was 18 years of age or older.
11-18 (d) Except as provided by Subsections (e) and (f), an
11-19 offense under this section is a state jail felony.
11-20 (e) An offense under this section is a Class B misdemeanor
11-21 if it is shown on the trial of the defendant that at the time of
11-22 the delivery the defendant or the defendant's employer held [had] a
11-23 volatile chemical [glue and paint] sales permit for the location of
11-24 the sale.
11-25 (f) An offense under this section is a Class A misdemeanor
11-26 if it is shown on the trial of the defendant that at the time of
11-27 the delivery the defendant or the defendant's employer:
12-1 (1) did not hold [have] a volatile chemical [glue and
12-2 paint] sales permit but did hold [have] a sales tax permit for the
12-3 location of the sale; and
12-4 (2) had not been convicted previously under this
12-5 section for an offense committed after January 1, 1988.
12-6 Sec. 485.034. INHALANT PARAPHERNALIA. (a) A person commits
12-7 an offense if the person [intentionally or] knowingly uses or
12-8 possesses with intent to use inhalant paraphernalia to inhale,
12-9 ingest, or otherwise introduce into the human body an abusable
12-10 volatile chemical [glue or aerosol paint] in violation of Section
12-11 485.031.
12-12 (b) A person commits an offense if the person:
12-13 (1) knowingly [or intentionally]:
12-14 (A) delivers or sells inhalant paraphernalia;
12-15 (B) possesses, with intent to deliver or sell,
12-16 inhalant paraphernalia; or
12-17 (C) manufactures, with intent to deliver or
12-18 sell, inhalant paraphernalia; and
12-19 (2) at the time of the act described by Subdivision
12-20 (1), knows that the person who receives or is intended to receive
12-21 the paraphernalia intends that it be used to inhale, ingest, apply,
12-22 use, or otherwise introduce into the human body a [substance
12-23 containing a] volatile chemical in violation of Section 485.031.
12-24 (c) An offense under Subsection (a) is a Class B
12-25 misdemeanor, and an offense under Subsection (b) is a Class A
12-26 misdemeanor.
12-27 Sec. 485.035. FAILURE TO POST SIGN. (a) A person commits
13-1 an offense if the person sells an abusable volatile chemical [glue
13-2 or aerosol paint] in a business establishment and the person does
13-3 not display the [a] sign [as] required by Section 485.018
13-4 [485.017].
13-5 (b) An offense under this section is a Class C misdemeanor.
13-6 Sec. 485.036. SALE WITHOUT PERMIT. (a) A person commits an
13-7 offense if the person sells an abusable volatile chemical [glue or
13-8 aerosol paint] in violation of Section 485.012 and the purchaser is
13-9 18 years of age or older.
13-10 (b) An offense under this section is a Class B misdemeanor.
13-11 Sec. 485.037. PROOF OF OFFER TO SELL. Proof of an offer to
13-12 sell an abusable volatile chemical [glue or aerosol paint] must be
13-13 corroborated by a person other than the offeree or by evidence
13-14 other than a statement of the offeree.
13-15 Sec. 485.038. SUMMARY FORFEITURE. An abusable volatile
13-16 chemical [glue, aerosol paint,] or inhalant paraphernalia seized as
13-17 a result of an offense under this chapter is subject to summary
13-18 forfeiture and to destruction or disposition in the same manner as
13-19 controlled substance property under Subchapter E, Chapter 481.
13-20 Sec. 485.039. PREPARATORY OFFENSES. Title 4, Penal Code,
13-21 applies to an offense under this subchapter.
13-22 SUBCHAPTER D. INJUNCTIVE AND OTHER RELIEF AND
13-23 ADMINISTRATIVE PENALTIES
13-24 Sec. 485.051. INJUNCTION OR OTHER COURT ORDER. (a) If it
13-25 appears that a person has violated, is violating, or is threatening
13-26 to violate this chapter or a rule adopted under this chapter, the
13-27 commissioner may request the attorney general, a district or county
14-1 attorney for the county, or the city attorney of the municipality
14-2 in which the violation has occurred, is occurring, or may occur to
14-3 bring an action for:
14-4 (1) a permanent or temporary injunction, restraining
14-5 order, other order enjoining the violation or directing compliance;
14-6 or
14-7 (2) another appropriate court order if the department
14-8 shows that the person is engaged in or is about to engage in a
14-9 violation.
14-10 (b) Venue for a suit brought under this section is in the
14-11 municipality or county in which the violation has occurred, is
14-12 occurring, or is threatened to occur, or in Travis County.
14-13 (c) The commissioner, the attorney general, a county, or a
14-14 municipality may recover reasonable expenses incurred in obtaining
14-15 injunctive relief under this section, including investigative
14-16 costs, court costs, reasonable attorney's fees, witness fees, and
14-17 deposition expenses.
14-18 Sec. 485.052. ADMINISTRATIVE PENALTY. (a) The department
14-19 may impose an administrative penalty against a person who is
14-20 required to hold a permit issued under this chapter and who
14-21 violates this chapter, other than Section 485.020, or a rule
14-22 adopted or order issued under this chapter.
14-23 (b) The amount of the penalty may not exceed $5,000 for each
14-24 violation. Each day a violation continues is a separate violation.
14-25 (c) In determining the amount of the penalty, the department
14-26 shall consider:
14-27 (1) the person's history of previous violations;
15-1 (2) the seriousness of the violation;
15-2 (3) any hazard to the health and safety of the public;
15-3 (4) the demonstrated good faith of the person charged,
15-4 including any effort by that person to establish or implement
15-5 policies or procedures to ensure compliance with this chapter; and
15-6 (5) any other matter justice may require.
15-7 Sec. 485.053. NOTICE OF ADMINISTRATIVE PENALTY; ACCEPTANCE
15-8 OR REQUEST FOR HEARING. (a) If the department determines that a
15-9 violation has occurred, the department shall give written notice of
15-10 that determination to the person. The notice must include:
15-11 (1) a brief summary of the alleged violation;
15-12 (2) a statement of the amount of the proposed penalty
15-13 based on the factors listed in Section 485.052; and
15-14 (3) a statement of the person's right to a hearing on
15-15 the occurrence of the violation, the amount of the penalty, or both
15-16 the occurrence of the violation and the amount of the penalty.
15-17 (b) Not later than the 20th day after the date the person
15-18 receives the notice, the person may accept the determination of the
15-19 department under this section, including the amount of the proposed
15-20 penalty, or may make a written request for a hearing on that
15-21 determination.
15-22 (c) If the person accepts the determination and proposed
15-23 penalty or if the person fails to respond timely to the notice, the
15-24 department shall issue an order affirming the determination and
15-25 imposing the penalty.
15-26 Sec. 485.054. HEARING; ORDER. (a) If the person requests a
15-27 hearing, the department shall:
16-1 (1) set a hearing;
16-2 (2) give notice of the hearing to the person; and
16-3 (3) designate a hearings examiner to conduct the
16-4 hearing.
16-5 (b) The hearings examiner shall make findings of fact and
16-6 conclusions of law and promptly issue to the department a proposal
16-7 for a decision about the occurrence of the violation and the amount
16-8 of a proposed penalty.
16-9 (c) Based on the findings of fact, conclusions of law, and
16-10 proposal for a decision, the department by order may find that a
16-11 violation has occurred and impose a penalty or may find that no
16-12 violation occurred.
16-13 (d) The notice of the order given to the person under
16-14 Chapter 2001, Government Code, must include a statement of the
16-15 right of the person to judicial review of the order.
16-16 Sec. 485.055. COMPLIANCE WITH ORDER; RIGHT TO JUDICIAL
16-17 REVIEW. (a) Not later than the 30th day after the date the order
16-18 is final as provided by Section 2001.144, Government Code, the
16-19 person shall:
16-20 (1) pay the amount of the penalty;
16-21 (2) pay the amount of the penalty and file a petition
16-22 for judicial review contesting the occurrence of the violation, the
16-23 amount of the penalty, or both the occurrence of the violation and
16-24 the amount of the penalty; or
16-25 (3) without paying the amount of the penalty, file a
16-26 petition for judicial review contesting the occurrence of the
16-27 violation, the amount of the penalty, or both the occurrence of the
17-1 violation and the amount of the penalty.
17-2 (b) Within the 30-day period, a person who acts under
17-3 Subsection (a)(3) may:
17-4 (1) stay enforcement of the penalty by:
17-5 (A) paying the amount of the penalty to the
17-6 court for placement in an escrow account; or
17-7 (B) giving to the court a supersedeas bond that
17-8 is approved by the court for the amount of the penalty and that is
17-9 effective until all judicial review of the order is final; or
17-10 (2) request the court to stay enforcement of the
17-11 penalty by:
17-12 (A) filing with the court an affidavit of the
17-13 person stating that the person is financially unable to pay the
17-14 amount of the penalty and is financially unable to give the
17-15 supersedeas bond; and
17-16 (B) sending a copy of the affidavit to the
17-17 department by certified mail.
17-18 (c) If the department receives a copy of an affidavit under
17-19 Subsection (b)(2), the department may file with the court, not
17-20 later than the fifth day after the date that the copy is received,
17-21 a contest to the affidavit. The court shall hold a hearing on the
17-22 facts alleged in the affidavit as soon as practicable and shall
17-23 stay the enforcement of the penalty on finding that the facts
17-24 alleged in the affidavit are true. The person who files an
17-25 affidavit has the burden of proving that the person is financially
17-26 unable to pay the amount of the penalty and to give a supersedeas
17-27 bond.
18-1 (d) If the person does not pay the amount of the penalty and
18-2 the enforcement of the penalty is not stayed, the department may
18-3 refer the matter to the attorney general for collection of the
18-4 amount of the penalty.
18-5 Sec. 485.056. JUDICIAL REVIEW; FINAL DISPOSITION. (a)
18-6 Judicial review of the order:
18-7 (1) is instituted by filing a petition as provided by
18-8 Subchapter G, Chapter 2001, Government Code; and
18-9 (2) is under the substantial evidence rule.
18-10 (b) If the court sustains the occurrence of the violation,
18-11 the court may uphold or reduce the amount of the penalty and order
18-12 the person to pay the full or reduced amount of the penalty. If
18-13 the court does not sustain the occurrence of the violation, the
18-14 court shall order that no penalty is owed.
18-15 (c) When the judgment of the court becomes final, the court
18-16 shall proceed under this subsection. If the person paid the amount
18-17 of the penalty and if that amount is reduced or is not upheld by
18-18 the court, the court shall order the department to remit the
18-19 appropriate amount plus accrued interest to the person. The rate
18-20 of the interest is the rate charged on loans to depository
18-21 institutions by the New York Federal Reserve Bank, and the interest
18-22 shall be paid for the period beginning on the date the penalty was
18-23 paid and ending on the date the penalty is remitted. If the person
18-24 gave a supersedeas bond and if the amount of the penalty is not
18-25 upheld by the court, the court shall order the release of the bond.
18-26 If the person gave a supersedeas bond and if the amount of the
18-27 penalty is reduced, the court shall order the release of the bond
19-1 after the person pays the amount.
19-2 Sec. 485.057. RECOVERY OF COSTS. (a) The department may
19-3 order a person to make a payment to the department in an amount
19-4 necessary to recover reasonable costs and expenses incurred by the
19-5 department in investigating a matter or conducting a hearing
19-6 regarding the matter if as a result of the hearing an
19-7 administrative penalty is assessed against the person or the
19-8 person's permit is denied, suspended, or revoked. If a payment is
19-9 ordered under this subsection, the person shall make the payment
19-10 not later than the 30th day after the date of the order. The
19-11 department may refer the matter to the attorney general for
19-12 collection.
19-13 (b) If the attorney general brings an action against a
19-14 person to enforce an administrative penalty or collect a payment
19-15 ordered under this subchapter and the person is found liable for
19-16 the penalty or payment, the attorney general may recover from the
19-17 person an amount representing reasonable costs and expenses
19-18 incurred by the attorney general in an action brought under this
19-19 subsection.
19-20 SECTION 2. Chapter 484, Health and Safety Code, is repealed.
19-21 SECTION 3. (a) The changes in law made by this Act apply
19-22 only to an offense committed on or after the effective date of this
19-23 Act. An offense committed before the effective date of this Act is
19-24 covered by the law in effect when the offense was committed, and
19-25 the former law is continued in effect for that purpose. For
19-26 purposes of this subsection, an offense was committed before the
19-27 effective date of this Act if any element of the offense occurred
20-1 before that date.
20-2 (b) The changes in law made by this Act relating to a civil
20-3 or administrative penalty apply only to a violation of Chapter 485,
20-4 Health and Safety Code, as amended by this Act, or a rule of the
20-5 Texas Board of Health adopted under that chapter, as amended by
20-6 this Act, that occurs on or after the effective date of this Act.
20-7 A violation that occurred before the effective date of this Act is
20-8 covered by the law in effect when the violation occurred, and the
20-9 former law is continued in effect for that purpose. For purposes
20-10 of this subsection, a violation occurred before the effective date
20-11 of this Act if any element of the violation occurred before that
20-12 date.
20-13 (c) The change in law made by this Act relating to the
20-14 issuance of a permit applies only to a permit that is issued under
20-15 Chapter 485, Health and Safety Code, by the Texas Department of
20-16 Health on or after the effective date of this Act. A permit that
20-17 was issued by the Texas Department of Health before the effective
20-18 date of this Act remains in effect until the permit expires, is
20-19 surrendered by the holder, or is revoked or suspended by the
20-20 department.
20-21 SECTION 4. This Act takes effect September 1, 1999.
20-22 SECTION 5. The importance of this legislation and the
20-23 crowded condition of the calendars in both houses create an
20-24 emergency and an imperative public necessity that the
20-25 constitutional rule requiring bills to be read on three several
20-26 days in each house be suspended, and this rule is hereby suspended.