77R13811 E
By Chavez, Coleman H.B. No. 2950
Substitute the following for H.B. No. 2950:
By Gray C.S.H.B. No. 2950
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of certain abusable volatile chemicals.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The heading to Chapter 485, Health and Safety
1-5 Code, is amended to read as follows:
1-6 CHAPTER 485. ABUSABLE VOLATILE CHEMICALS
1-7 [GLUES AND AEROSOL PAINTS]
1-8 SECTION 2. Subchapters A, B, and C, Chapter 485, Health and
1-9 Safety Code, are amended to read as follows:
1-10 SUBCHAPTER A. GENERAL PROVISIONS
1-11 Sec. 485.001. DEFINITIONS. In this chapter:
1-12 (1) "Abusable volatile chemical [glue or aerosol
1-13 paint]" means:
1-14 (A) a chemical, including [glue or] aerosol
1-15 paint, that [is]:
1-16 (i) is [(A)] packaged in a container
1-17 subject to [holding a pint or less by volume or less than two
1-18 pounds by weight; and]
1-19 [(B) labeled in accordance with] the labeling
1-20 requirements concerning precautions against inhalation established
1-21 under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
1-22 et seq.), as amended, and [under] regulations adopted under that
1-23 Act and is labeled with the statement of principal hazard on the
1-24 principal display panel "VAPOR HARMFUL" or other labeling
2-1 requirement subsequently established under that Act or those
2-2 regulations;
2-3 (ii) when inhaled, ingested, or otherwise
2-4 introduced into a person's body, may:
2-5 (a) affect the person's central
2-6 nervous system;
2-7 (b) create or induce in the person a
2-8 condition of intoxication, hallucination, or elation; or
2-9 (c) change, distort, or disturb the
2-10 person's eyesight, thinking process, balance, or coordination; and
2-11 (iii) is not:
2-12 (a) a pesticide subject to Chapter
2-13 76, Agriculture Code, or to the Federal Environmental Pesticide
2-14 Control Act of 1972 (7 U.S.C. Section 136 et seq.), as amended;
2-15 (b) a food, drug, or cosmetic
2-16 subject to Chapter 431 or to the Federal Food, Drug, and Cosmetic
2-17 Act (21 U.S.C. Section 301 et seq.), as amended; or
2-18 (c) a beverage subject to the
2-19 Federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.),
2-20 as amended; or
2-21 (B) nitrous oxide that is not:
2-22 (i) a pesticide subject to Chapter 76,
2-23 Agriculture Code, or to the Federal Environmental Pesticide Control
2-24 Act of 1972 (7 U.S.C. Section 136 et seq.), as amended;
2-25 (ii) a food, drug, or cosmetic subject to
2-26 Chapter 431 or to the Federal Food, Drug, and Cosmetic Act (21
2-27 U.S.C. Section 301 et seq.), as amended; or
3-1 (iii) a beverage subject to the Federal
3-2 Alcohol Administration Act (27 U.S.C. Section 201 et seq.), as
3-3 amended.
3-4 (2) "Aerosol paint" means an aerosolized paint
3-5 product, including a clear or pigmented lacquer or finish.
3-6 (3) "Board" means the Texas Board of Health.
3-7 (4) "Commissioner" means the commissioner of health.
3-8 (5) [(4)] "Deliver" means to make the actual or
3-9 constructive transfer from one person to another of an abusable
3-10 volatile chemical [glue or aerosol paint], regardless of whether
3-11 there is an agency relationship. The term includes an offer
3-12 [offering] to sell an abusable volatile chemical [glue or aerosol
3-13 paint].
3-14 (6) [(5)] "Delivery" means the act of delivering.
3-15 (7) [(6)] "Department" means the Texas Department of
3-16 Health.
3-17 [(7) "Glue" means an adhesive substance intended to be
3-18 used to join two surfaces.]
3-19 (8) "Inhalant paraphernalia" means equipment[,
3-20 products,] or materials of any kind that are [used or] intended for
3-21 use in inhaling, ingesting, or otherwise introducing into the human
3-22 body an abusable volatile chemical [glue or aerosol paint in
3-23 violation of Section 485.031]. The term includes[:]
3-24 [(A) a can, tube, or other container used as the
3-25 original receptacle for an abusable glue or aerosol paint; or]
3-26 [(B)] a [can,] tube, balloon, bag, fabric,
3-27 bottle, or other container used to [contain,] concentrate[,] or
4-1 hold in suspension an abusable volatile chemical [glue or aerosol
4-2 paint,] or vapors of the chemical [glue or paint].
4-3 (9) "Sell" includes a conveyance, exchange, barter, or
4-4 trade.
4-5 Sec. 485.002. RULES. The board may adopt rules necessary to
4-6 comply with any labeling requirements concerning precautions
4-7 against inhalation of an abusable volatile chemical established
4-8 under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
4-9 et seq.), as amended, or under regulations adopted under that Act.
4-10 SUBCHAPTER B. [ADDITIVES,] SALES PERMITS[,] AND SIGNS
4-11 Sec. 485.011. [ADDITIVES. (a) The commissioner by rule
4-12 shall:]
4-13 [(1) approve and designate additive materials to be
4-14 included in abusable glue or aerosol paint; and]
4-15 [(2) prescribe the proportions of additive materials
4-16 to be placed in abusable glue or aerosol paint.]
4-17 [(b) The rules must be designed to safely and effectively
4-18 discourage intentional abuse by inhalation of abusable glue or
4-19 aerosol paint at the lowest practicable cost to the manufacturers
4-20 and distributors of the glue or paint.]
4-21 [Sec. 485.012.] PERMIT REQUIRED. A person may not sell an
4-22 abusable volatile chemical [glue or aerosol paint] at retail unless
4-23 the person or the person's employer holds [has], at the time of the
4-24 sale, a volatile chemical [glue and paint] sales permit for the
4-25 location of the sale.
4-26 Sec. 485.012 [485.013]. ISSUANCE AND RENEWAL OF PERMIT.
4-27 (a) To be eligible for the issuance or renewal of a volatile
5-1 chemical [glue and paint] sales permit, a person must:
5-2 (1) hold [have] a sales tax permit that has been
5-3 issued to the person;
5-4 (2) complete and return to the department an
5-5 application as required by the department; and
5-6 (3) pay to the department the [a $25] application fee
5-7 established under Section 485.013 for each location at which an
5-8 abusable volatile chemical [glue and aerosol paint] may be sold by
5-9 the person holding [on obtaining] a volatile chemical [glue and
5-10 paint] sales permit.
5-11 (b) The board [department] shall adopt rules as necessary to
5-12 administer this chapter, including application procedures and
5-13 procedures by which the department shall give each permit holder
5-14 [permittee] reasonable notice of permit expiration and renewal
5-15 requirements.
5-16 (c) The department shall issue or deny a permit and notify
5-17 the applicant of the department's action not later than the 60th
5-18 day after the date on which the department receives the complete
5-19 application and appropriate fee. If the department denies an
5-20 application, the department shall include in the notice the reasons
5-21 for the denial.
5-22 (d) A permit issued or renewed under this chapter is valid
5-23 for one year from the date of issuance or renewal.
5-24 (e) A permit is not valid if the permit holder has been
5-25 convicted more than once in the preceding year of an offense [that
5-26 is] committed:
5-27 (1) at a [the] location for which the permit is
6-1 issued; and
6-2 (2) under Section [484.005(a),] 485.031, 485.032, or
6-3 485.033[, or 485.034].
6-4 (f) A permit issued by the department is the property of the
6-5 department and must be surrendered on demand by the department.
6-6 (g) The department shall prepare an annual roster of permit
6-7 holders.
6-8 (h) The department shall monitor and enforce compliance with
6-9 this chapter.
6-10 Sec. 485.013. FEE. The board by rule may establish fees in
6-11 amounts not to exceed $50 for the issuance of a permit under this
6-12 chapter.
6-13 Sec. 485.014. PERMIT AVAILABLE FOR INSPECTION. A permit
6-14 holder must have the volatile chemical [glue and paint] sales
6-15 permit or a copy of the permit available for inspection by the
6-16 public at each location [the place] where the permit holder sells
6-17 an abusable volatile chemical [glue and aerosol paint].
6-18 Sec. 485.015. REFUSAL TO ISSUE OR RENEW PERMIT. A
6-19 proceeding for the failure to issue or renew a volatile chemical
6-20 [glue and paint] sales permit under Section 485.012 [485.013] or
6-21 for an appeal from that proceeding is governed by the contested
6-22 case provisions of Chapter 2001, Government Code.
6-23 Sec. 485.016. DISPOSITION OF FUNDS; EDUCATION AND PREVENTION
6-24 PROGRAMS. (a) The department shall [receive and] account for all
6-25 amounts [funds] received under Section 485.013 and send those
6-26 amounts [the funds as they are received] to the comptroller.
6-27 (b) The comptroller shall deposit the amounts received under
7-1 Subsection (a) in the state treasury [those funds] to the credit of
7-2 the general revenue fund to be used only by the department to:
7-3 (1) administer, monitor, and enforce this chapter; and
7-4 (2) finance statewide education projects concerning
7-5 the hazards of abusable volatile chemicals [glue or aerosol paint]
7-6 and the prevention of inhalant abuse.
7-7 [(c) The department shall enter into a memorandum of
7-8 understanding with the Texas Commission on Alcohol and Drug Abuse
7-9 to implement the education and prevention programs.]
7-10 Sec. 485.017. SIGNS. A business establishment that sells an
7-11 abusable volatile chemical [glue or aerosol paint] at retail shall
7-12 display a conspicuous sign, in English and Spanish, that states the
7-13 following:
7-14 It is unlawful for a person to sell or deliver an
7-15 abusable volatile chemical [glue or aerosol paint] to a
7-16 person under 18 years of age. Except in limited
7-17 situations, such an offense is a state jail [3rd
7-18 degree] felony.
7-19 It is also unlawful for a person to abuse a volatile
7-20 chemical [glue or aerosol paint] by inhaling,
7-21 ingesting, applying, using, or possessing with intent
7-22 to inhale, ingest, apply, or use a volatile chemical
7-23 [glue or aerosol paint] in a manner designed to affect
7-24 the central nervous system. Such an offense is a
7-25 Class B misdemeanor.
7-26 Sec. 485.018. PROHIBITED ORDINANCE AND RULE. (a) A
7-27 political subdivision or an agency of this [the] state may not
8-1 enact an ordinance or rule that requires a business establishment
8-2 to display an abusable volatile chemical [glue or aerosol paint] in
8-3 a manner that makes the chemical [glue or paint] accessible to
8-4 patrons of the business only with the assistance of personnel of
8-5 the business.
8-6 (b) This section does not apply to an ordinance or rule that
8-7 was enacted before September 1, 1989.
8-8 Sec. 485.019. RESTRICTION OF ACCESS TO AEROSOL PAINT.
8-9 (a) A business establishment that holds a permit under Section
8-10 485.012 and that displays aerosol paint shall display the paint:
8-11 (1) in a place that is in the line of sight of a
8-12 cashier or in the line of sight from a workstation normally
8-13 continuously occupied during business hours;
8-14 (2) in a manner that makes the paint accessible to a
8-15 patron of the business establishment only with the assistance of an
8-16 employee of the establishment; or
8-17 (3) in an area electronically protected, or viewed by
8-18 surveillance equipment that is monitored, during business hours.
8-19 (b) This section does not apply to a business establishment
8-20 that has in place a computerized checkout system at the point of
8-21 sale for merchandise that alerts the cashier that a person
8-22 purchasing aerosol paint must be over 18 years of age.
8-23 (c) A court may issue a warning to a business establishment
8-24 or impose a civil penalty of $50 on the business establishment for
8-25 a first violation of this section. After receiving a warning or
8-26 penalty for the first violation, the business establishment is
8-27 liable to the state for a civil penalty of $100 for each subsequent
9-1 violation.
9-2 (d) For the third violation of this section in a calendar
9-3 year, a court may issue an injunction prohibiting the business
9-4 establishment from selling aerosol paint for a period of not more
9-5 than two years. A business establishment that violates the
9-6 injunction is liable to the state for a civil penalty of $100, in
9-7 addition to any other penalty authorized by law, for each day the
9-8 violation continues.
9-9 (e) If a business establishment fails to pay a civil penalty
9-10 under this section, the court may issue an injunction prohibiting
9-11 the establishment from selling aerosol paint until the
9-12 establishment pays the penalty, attorney's fees, and court costs.
9-13 (f) The district or county attorney for the county in which
9-14 a violation of this section is alleged to have occurred, or the
9-15 attorney general, if requested by the district or county attorney
9-16 for that county, may file suit for the issuance of a warning, the
9-17 collection of a penalty, or the issuance of an injunction.
9-18 (g) A penalty collected under this section shall be sent to
9-19 the comptroller for deposit in the state treasury to the credit of
9-20 the general revenue fund.
9-21 (h) This section applies only to a business establishment
9-22 that is located in a county with a population of 75,000 or more.
9-23 SUBCHAPTER C. CRIMINAL PENALTIES
9-24 Sec. 485.031. POSSESSION AND USE. (a) A person commits an
9-25 offense if the person inhales, ingests, applies, uses, or possesses
9-26 an abusable volatile chemical [glue or aerosol paint] with intent
9-27 to inhale, ingest, apply, or use the chemical [abusable glue or
10-1 aerosol paint] in a manner:
10-2 (1) contrary to directions for use, cautions, or
10-3 warnings appearing on a label of a container of the chemical [glue
10-4 or paint]; and
10-5 (2) designed to:
10-6 (A) affect the person's central nervous system;
10-7 (B) create or induce a condition of
10-8 intoxication, hallucination, or elation; or
10-9 (C) change, distort, or disturb the person's
10-10 eyesight, thinking process, balance, or coordination.
10-11 (b) An offense under this section is a Class B misdemeanor.
10-12 Sec. 485.032. [MANUFACTURE AND DELIVERY. (a) A person
10-13 commits an offense if the person intentionally manufactures,
10-14 delivers, or possesses with intent to manufacture or deliver
10-15 abusable glue or aerosol paint that does not contain additive
10-16 material in accordance with rules adopted by the commissioner.]
10-17 [(b) It is an affirmative defense to prosecution under this
10-18 section that the abusable glue or aerosol paint is packaged in bulk
10-19 quantity containers, each of which holds at least two gallons, and
10-20 is intended for ultimate use only by industrial or commercial
10-21 enterprises.]
10-22 [(c) An offense under this section is a Class A misdemeanor.]
10-23 [Sec. 485.033.] DELIVERY TO A MINOR. (a) A person commits
10-24 an offense if the person [intentionally,] knowingly[, or
10-25 recklessly] delivers an abusable volatile chemical [glue or aerosol
10-26 paint] to a person who is younger than 18 years of age.
10-27 (b) It is a defense to prosecution under this section that:
11-1 (1) the abusable volatile chemical [glue or aerosol
11-2 paint] that was delivered contains additive material that
11-3 effectively discourages intentional abuse by inhalation; or
11-4 (2) the person making the delivery is not the
11-5 manufacturer of the chemical and the manufacturer of the chemical
11-6 failed to label the chemical with the statement of principal hazard
11-7 on the principal display panel "VAPOR HARMFUL" or other labeling
11-8 requirement subsequently established under the Federal Hazardous
11-9 Substances Act (15 U.S.C. Section 1261 et seq.), as amended, or
11-10 regulations subsequently adopted under that Act [is in compliance
11-11 with rules adopted by the commissioner under Section 485.011].
11-12 (c) It is an affirmative defense to prosecution under this
11-13 section that:
11-14 (1) the person making the delivery is an adult having
11-15 supervisory responsibility over the person younger than 18 years of
11-16 age and:
11-17 (A) the adult permits the use of the abusable
11-18 volatile chemical [glue or aerosol paint] only under the adult's
11-19 direct supervision and in the adult's presence and only for its
11-20 intended purpose; and
11-21 (B) the adult removes the chemical [substance]
11-22 from the person younger than 18 years of age on completion of that
11-23 use; or
11-24 (2) the person to whom the abusable volatile chemical
11-25 [glue or aerosol paint] was delivered presented to the defendant an
11-26 apparently valid Texas driver's license or an identification
11-27 certificate [card], issued by the Department of Public Safety of
12-1 the State of Texas and containing a physical description consistent
12-2 with the person's appearance, that purported to establish that the
12-3 person was 18 years of age or older.
12-4 (d) Except as provided by Subsections (e) and (f), an
12-5 offense under this section is a state jail felony.
12-6 (e) An offense under this section is a Class B misdemeanor
12-7 if it is shown on the trial of the defendant that at the time of
12-8 the delivery the defendant or the defendant's employer held [had] a
12-9 volatile chemical [glue and paint] sales permit for the location of
12-10 the sale.
12-11 (f) An offense under this section is a Class A misdemeanor
12-12 if it is shown on the trial of the defendant that at the time of
12-13 the delivery the defendant or the defendant's employer:
12-14 (1) did not hold [have] a volatile chemical [glue and
12-15 paint] sales permit but did hold [have] a sales tax permit for the
12-16 location of the sale; and
12-17 (2) had not been convicted previously under this
12-18 section for an offense committed after January 1, 1988.
12-19 Sec. 485.033 [485.034]. INHALANT PARAPHERNALIA. (a) A
12-20 person commits an offense if the person [intentionally or]
12-21 knowingly uses or possesses with intent to use inhalant
12-22 paraphernalia to inhale, ingest, or otherwise introduce into the
12-23 human body an abusable volatile chemical [glue or aerosol paint] in
12-24 violation of Section 485.031.
12-25 (b) A person commits an offense if the person:
12-26 (1) knowingly [or intentionally]:
12-27 (A) delivers or sells inhalant paraphernalia;
13-1 (B) possesses, with intent to deliver or sell,
13-2 inhalant paraphernalia; or
13-3 (C) manufactures, with intent to deliver or
13-4 sell, inhalant paraphernalia; and
13-5 (2) at the time of the act described by Subdivision
13-6 (1), knows that the person who receives or is intended to receive
13-7 the paraphernalia intends that it be used to inhale, ingest, apply,
13-8 use, or otherwise introduce into the human body a [substance
13-9 containing a] volatile chemical in violation of Section 485.031.
13-10 (c) An offense under Subsection (a) is a Class B
13-11 misdemeanor, and an offense under Subsection (b) is a Class A
13-12 misdemeanor.
13-13 Sec. 485.034 [485.035]. FAILURE TO POST SIGN. (a) A person
13-14 commits an offense if the person sells an abusable volatile
13-15 chemical [glue or aerosol paint] in a business establishment and
13-16 the person does not display the [a] sign [as] required by Section
13-17 485.017.
13-18 (b) An offense under this section is a Class C misdemeanor.
13-19 Sec. 485.035 [485.036]. SALE WITHOUT PERMIT. (a) A person
13-20 commits an offense if the person sells an abusable volatile
13-21 chemical [glue or aerosol paint] in violation of Section 485.011
13-22 [485.012] and the purchaser is 18 years of age or older.
13-23 (b) An offense under this section is a Class B misdemeanor.
13-24 Sec. 485.036 [485.037]. PROOF OF OFFER TO SELL. Proof of an
13-25 offer to sell an abusable volatile chemical [glue or aerosol paint]
13-26 must be corroborated by a person other than the offeree or by
13-27 evidence other than a statement of the offeree.
14-1 Sec. 485.037 [485.038]. SUMMARY FORFEITURE. An abusable
14-2 volatile chemical [glue, aerosol paint,] or inhalant paraphernalia
14-3 seized as a result of an offense under this chapter is subject to
14-4 summary forfeiture and to destruction or disposition in the same
14-5 manner as controlled substance property under Subchapter E, Chapter
14-6 481.
14-7 Sec. 485.038 [485.039]. PREPARATORY OFFENSES. Title 4,
14-8 Penal Code, applies to an offense under this subchapter.
14-9 SECTION 3. Section 565.001(a), Occupations Code, is amended
14-10 to read as follows:
14-11 (a) The board may discipline an applicant for or the holder
14-12 of a license to practice pharmacy if the board finds that the
14-13 applicant or license holder has:
14-14 (1) violated this subtitle or a board rule adopted
14-15 under this subtitle;
14-16 (2) engaged in unprofessional conduct as defined by
14-17 board rule;
14-18 (3) engaged in gross immorality as defined by board
14-19 rule;
14-20 (4) developed an incapacity that prevents the
14-21 applicant or license holder from practicing pharmacy with
14-22 reasonable skill, competence, and safety to the public;
14-23 (5) engaged in fraud, deceit, or misrepresentation, as
14-24 defined by board rule, in practicing pharmacy or in seeking a
14-25 license to practice pharmacy;
14-26 (6) been convicted of a misdemeanor involving moral
14-27 turpitude or a felony;
15-1 (7) developed a drug or alcohol dependency;
15-2 (8) failed to maintain records required by this
15-3 subtitle or failed to maintain complete and accurate records of
15-4 purchases or disposals of drugs listed in Chapter 481 or 483,
15-5 Health and Safety Code, or the Comprehensive Drug Abuse Prevention
15-6 and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
15-7 (9) violated any provision of:
15-8 (A) Chapter 481 or 483, Health and Safety Code,
15-9 or the Comprehensive Drug Abuse Prevention and Control Act of 1970
15-10 (21 U.S.C. Section 801 et seq.), or rules relating to one of those
15-11 laws; or
15-12 (B) Section 485.031, 485.032, 485.033, or
15-13 485.034[, or 485.035], Health and Safety Code; [or]
15-14 [(C) a rule adopted under Section 485.011,
15-15 Health and Safety Code;]
15-16 (10) aided or abetted an unlicensed person in the
15-17 practice of pharmacy if the pharmacist knew or reasonably should
15-18 have known that the person was unlicensed at the time;
15-19 (11) refused entry into a pharmacy for an inspection
15-20 authorized by this subtitle if the pharmacist received notification
15-21 from which the pharmacist knew or reasonably should have known that
15-22 the attempted inspection was authorized;
15-23 (12) violated any pharmacy or drug statute or rule of
15-24 this state, another state, or the United States;
15-25 (13) been negligent in the practice of pharmacy;
15-26 (14) failed to submit to an examination after hearing
15-27 and being ordered to do so by the board under Section 565.052;
16-1 (15) dispensed a prescription drug while acting
16-2 outside the usual course and scope of professional practice; or
16-3 (16) had a license to practice pharmacy issued by
16-4 another state canceled, revoked, surrendered, or suspended for
16-5 conduct substantially equivalent to conduct described under this
16-6 subsection.
16-7 SECTION 4. Chapter 484, Health and Safety Code, is repealed.
16-8 SECTION 5. (a) The changes in law made by this Act apply
16-9 only to an offense committed on or after the effective date of this
16-10 Act. An offense committed before the effective date of this Act is
16-11 covered by the law in effect when the offense was committed, and
16-12 the former law is continued in effect for that purpose. For
16-13 purposes of this subsection, an offense was committed before the
16-14 effective date of this Act if any element of the offense occurred
16-15 before that date.
16-16 (b) The change in law made by this Act relating to the
16-17 issuance of a permit applies only to a permit that is issued under
16-18 Chapter 485, Health and Safety Code, by the Texas Department of
16-19 Health on or after the effective date of this Act. A permit that
16-20 was issued by the Texas Department of Health before the effective
16-21 date of this Act remains in effect until the permit expires, is
16-22 surrendered by the holder, or is revoked or suspended by the
16-23 department.
16-24 SECTION 6. This Act takes effect September 1, 2001.