By Chavez H.B. No. 2950
77R4889 JD-D
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. Subchapters A, B, and C, Chapter 485, Health and
1-5 Safety Code, are amended to read as follows:
1-6 CHAPTER 485. ABUSABLE VOLATILE CHEMICALS
1-7 [GLUES AND AEROSOL PAINTS]
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 485.001. DEFINITIONS. In this chapter:
1-10 (1) "Abusable volatile chemical [glue or aerosol
1-11 paint]" means:
1-12 (A) a chemical, including [glue or] aerosol
1-13 paint, that [is]:
1-14 (i) [(A)] is packaged in a container
1-15 subject to [holding a pint or less by volume or less than two
1-16 pounds by 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 (ii) when inhaled, ingested, or otherwise
1-24 introduced into a person's body, may:
2-1 (a) affect the person's central
2-2 nervous system;
2-3 (b) create or induce in the person a
2-4 condition of intoxication, hallucination, or elation; or
2-5 (c) change, distort, or disturb the
2-6 person's eyesight, thinking process, balance, or coordination; and
2-7 (iii) is not:
2-8 (a) a pesticide subject to Chapter
2-9 76, Agriculture Code, or to the Federal Environmental Pesticide
2-10 Control Act of 1972 (7 U.S.C. Section 136 et seq.), as amended;
2-11 (b) a food, drug, or cosmetic
2-12 subject to Chapter 431 or to the Federal Food, Drug, and Cosmetic
2-13 Act (21 U.S.C. Section 301 et seq.), as amended; or
2-14 (c) a beverage subject to the
2-15 Federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.),
2-16 as amended; or
2-17 (B) nitrous oxide.
2-18 (2) "Aerosol paint" means an aerosolized paint
2-19 product, including a clear or pigmented lacquer or finish.
2-20 (3) "Board" means the Texas Board of Health.
2-21 (4) "Commissioner" means the commissioner of health.
2-22 (5) [(4)] "Deliver" means to make the actual or
2-23 constructive transfer from one person to another of an abusable
2-24 volatile chemical [glue or aerosol paint], regardless of whether
2-25 there is an agency relationship. The term includes an offer
2-26 [offering] to sell an abusable volatile chemical [glue or aerosol
2-27 paint].
3-1 (6) [(5)] "Delivery" means the act of delivering.
3-2 (7) [(6)] "Department" means the Texas Department of
3-3 Health.
3-4 [(7) "Glue" means an adhesive substance intended to be
3-5 used to join two surfaces.]
3-6 (8) "Inhalant paraphernalia" means equipment,
3-7 products, or materials of any kind that are used or intended for
3-8 use in inhaling, ingesting, or otherwise introducing into the human
3-9 body an abusable volatile chemical [glue or aerosol paint in
3-10 violation of Section 485.031]. The term includes:
3-11 (A) a can, tube, or other container used as the
3-12 original receptacle for an abusable volatile chemical [glue or
3-13 aerosol paint]; or
3-14 (B) a can, tube, balloon, bag, fabric, bottle,
3-15 or other container used to contain, concentrate, or hold in
3-16 suspension an abusable volatile chemical [glue or aerosol paint,]
3-17 or vapors of the chemical [glue or paint].
3-18 (9) "Sell" includes a conveyance, exchange, barter, or
3-19 trade.
3-20 SUBCHAPTER B. ADDITIVES, SALES PERMITS, AND SIGNS
3-21 Sec. 485.011. ADDITIVES. (a) The board [commissioner] by
3-22 rule shall:
3-23 (1) approve and designate additive materials to be
3-24 included in abusable volatile chemicals [glue or aerosol paint];
3-25 and
3-26 (2) prescribe the proportions of additive materials to
3-27 be placed in abusable volatile chemicals [glue or aerosol paint].
4-1 (b) The rules must be designed to safely and effectively
4-2 discourage intentional abuse by inhalation of abusable volatile
4-3 chemicals [glue or aerosol paint] at the lowest practicable cost to
4-4 the manufacturers and distributors of the chemicals [glue or
4-5 paint].
4-6 Sec. 485.012. PERMIT REQUIRED. A person may not sell an
4-7 abusable volatile chemical [glue or aerosol paint] at retail unless
4-8 the person or the person's employer holds [has], at the time of the
4-9 sale, a volatile chemical [glue and paint] sales permit for the
4-10 location of the sale.
4-11 Sec. 485.013. ISSUANCE AND RENEWAL OF PERMIT. (a) To be
4-12 eligible for the issuance or renewal of a volatile chemical [glue
4-13 and paint] sales permit, a person must:
4-14 (1) hold [have] a sales tax permit that has been
4-15 issued to the person;
4-16 (2) complete and return to the department an
4-17 application as required by the department; and
4-18 (3) pay to the department the [a $25] application fee
4-19 established under Section 485.014 for each location at which an
4-20 abusable volatile chemical [glue and aerosol paint] may be sold by
4-21 the person holding [on obtaining] a volatile chemical [glue and
4-22 paint] sales permit.
4-23 (b) The board [department] shall adopt rules as necessary to
4-24 administer this chapter, including application procedures and
4-25 procedures by which the department shall give each permit holder
4-26 [permittee] reasonable notice of permit expiration and renewal
4-27 requirements.
5-1 (c) The department shall issue or deny a permit and notify
5-2 the applicant of the department's action not later than the 60th
5-3 day after the date on which the department receives the complete
5-4 application and appropriate fee. If the department denies an
5-5 application, the department shall include in the notice the reasons
5-6 for the denial.
5-7 (d) A permit issued or renewed under this chapter is valid
5-8 for one year from the date of issuance or renewal.
5-9 (e) A permit is not valid if the permit holder has been
5-10 convicted more than once in the preceding year of an offense [that
5-11 is] committed:
5-12 (1) at a [the] location for which the permit is
5-13 issued; and
5-14 (2) under Section [484.005(a),] 485.031, 485.032,
5-15 485.033, or 485.034.
5-16 (f) A permit issued by the department is the property of the
5-17 department and must be surrendered on demand by the department.
5-18 (g) The department shall prepare an annual roster of permit
5-19 holders.
5-20 (h) The department shall monitor and enforce compliance with
5-21 this chapter.
5-22 Sec. 485.014. FEE. The board by rule may establish fees in
5-23 amounts not to exceed $50 for the issuance of a permit under this
5-24 chapter.
5-25 Sec. 485.015 [485.014]. PERMIT AVAILABLE FOR INSPECTION. A
5-26 permit holder must have the volatile chemical [glue and paint]
5-27 sales permit or a copy of the permit available for inspection by
6-1 the public at each location [the place] where the permit holder
6-2 sells an abusable volatile chemical [glue and aerosol paint].
6-3 Sec. 485.016 [485.015]. REFUSAL TO ISSUE OR RENEW PERMIT. A
6-4 proceeding for the failure to issue or renew a volatile chemical
6-5 [glue and paint] sales permit under Section 485.013 or for an
6-6 appeal from that proceeding is governed by the contested case
6-7 provisions of Chapter 2001, Government Code.
6-8 Sec. 485.017 [485.016]. DISPOSITION OF FUNDS; EDUCATION AND
6-9 PREVENTION PROGRAMS. (a) The department shall [receive and]
6-10 account for all amounts [funds] received under Section 485.014
6-11 [485.013] and send those amounts [the funds as they are received]
6-12 to the comptroller.
6-13 (b) The comptroller shall deposit the amounts received under
6-14 Subsection (a) in the state treasury [those funds] to the credit of
6-15 a separate account in the general revenue fund to be known as the
6-16 inhalant abuse prevention account. Money in the account may [to]
6-17 be used only by the department to:
6-18 (1) administer, monitor, and enforce this chapter; and
6-19 (2) finance statewide education projects concerning
6-20 the hazards of abusable volatile chemicals [glue or aerosol paint]
6-21 and the prevention of inhalant abuse.
6-22 [(c) The department shall enter into a memorandum of
6-23 understanding with the Texas Commission on Alcohol and Drug Abuse
6-24 to implement the education and prevention programs.]
6-25 Sec. 485.018 [485.017]. SIGNS. A business establishment
6-26 that sells an abusable volatile chemical [glue or aerosol paint] at
6-27 retail shall display a conspicuous sign, in English and Spanish,
7-1 that states the following:
7-2 It is unlawful for a person to sell or deliver an
7-3 abusable volatile chemical [glue or aerosol paint] to a
7-4 person under 18 years of age. Except in limited
7-5 situations, such an offense is a state jail [3rd
7-6 degree] felony.
7-7 It is also unlawful for a person to abuse a volatile
7-8 chemical [glue or aerosol paint] by inhaling,
7-9 ingesting, applying, using, or possessing with intent
7-10 to inhale, ingest, apply, or use a volatile chemical
7-11 [glue or aerosol paint] in a manner designed to affect
7-12 the central nervous system. Such an offense is a
7-13 Class B misdemeanor.
7-14 Sec. 485.019 [485.018]. PROHIBITED ORDINANCE AND RULE.
7-15 (a) A political subdivision or an agency of this [the] state may
7-16 not enact an ordinance or rule that requires a business
7-17 establishment to display an abusable volatile chemical [glue or
7-18 aerosol paint] in a manner that makes the chemical [glue or paint]
7-19 accessible to patrons of the business only with the assistance of
7-20 personnel of the business.
7-21 (b) This section does not apply to an ordinance or rule that
7-22 was enacted before September 1, 1989.
7-23 Sec. 485.020 [485.019]. RESTRICTION OF ACCESS TO AEROSOL
7-24 PAINT. (a) A business establishment that holds a permit under
7-25 Section 485.012 and that displays aerosol paint shall display the
7-26 paint:
7-27 (1) in a place that is in the line of sight of a
8-1 cashier or in the line of sight from a workstation normally
8-2 continuously occupied during business hours;
8-3 (2) in a manner that makes the paint accessible to a
8-4 patron of the business establishment only with the assistance of an
8-5 employee of the establishment; or
8-6 (3) in an area electronically protected, or viewed by
8-7 surveillance equipment that is monitored, during business hours.
8-8 (b) This section does not apply to a business establishment
8-9 that has in place a computerized checkout system at the point of
8-10 sale for merchandise that alerts the cashier that a person
8-11 purchasing aerosol paint must be over 18 years of age.
8-12 (c) A court may issue a warning to a business establishment
8-13 or impose a civil penalty of $50 on the business establishment for
8-14 a first violation of this section. After receiving a warning or
8-15 penalty for the first violation, the business establishment is
8-16 liable to the state for a civil penalty of $100 for each subsequent
8-17 violation.
8-18 (d) For the third violation of this section in a calendar
8-19 year, a court may issue an injunction prohibiting the business
8-20 establishment from selling aerosol paint for a period of not more
8-21 than two years. A business establishment that violates the
8-22 injunction is liable to the state for a civil penalty of $100, in
8-23 addition to any other penalty authorized by law, for each day the
8-24 violation continues.
8-25 (e) If a business establishment fails to pay a civil penalty
8-26 under this section, the court may issue an injunction prohibiting
8-27 the establishment from selling aerosol paint until the
9-1 establishment pays the penalty, attorney's fees, and court costs.
9-2 (f) The district or county attorney for the county in which
9-3 a violation of this section is alleged to have occurred, or the
9-4 attorney general, if requested by the district or county attorney
9-5 for that county, may file suit for the issuance of a warning, the
9-6 collection of a penalty, or the issuance of an injunction.
9-7 (g) A penalty collected under this section shall be sent to
9-8 the comptroller for deposit in the state treasury to the credit of
9-9 the general revenue fund.
9-10 (h) This section applies only to a business establishment
9-11 that is located in a county with a population of 75,000 or more.
9-12 SUBCHAPTER C. CRIMINAL PENALTIES
9-13 Sec. 485.031. POSSESSION AND USE. (a) A person commits an
9-14 offense if the person inhales, ingests, applies, uses, or possesses
9-15 an abusable volatile chemical [glue or aerosol paint] with intent
9-16 to inhale, ingest, apply, or use the chemical [abusable glue or
9-17 aerosol paint] in a manner:
9-18 (1) contrary to directions for use, cautions, or
9-19 warnings appearing on a label of a container of the chemical [glue
9-20 or paint]; and
9-21 (2) designed to:
9-22 (A) affect the person's central nervous system;
9-23 (B) create or induce a condition of
9-24 intoxication, hallucination, or elation; or
9-25 (C) change, distort, or disturb the person's
9-26 eyesight, thinking process, balance, or coordination.
9-27 (b) An offense under this section is a Class B misdemeanor.
10-1 Sec. 485.032. MANUFACTURE AND DELIVERY. (a) A person
10-2 commits an offense if the person intentionally manufactures,
10-3 delivers, or possesses with intent to manufacture or deliver an
10-4 abusable volatile chemical [glue or aerosol paint] that does not
10-5 contain additive material in accordance with rules adopted by the
10-6 board [commissioner].
10-7 (b) It is an affirmative defense to prosecution under this
10-8 section that the abusable volatile chemical [glue or aerosol paint]
10-9 is packaged in bulk quantity containers, each of which holds at
10-10 least two gallons, and is intended for ultimate use only by
10-11 industrial or commercial enterprises.
10-12 (c) An offense under this section is a Class A misdemeanor.
10-13 Sec. 485.033. DELIVERY TO A MINOR. (a) A person commits an
10-14 offense if the person [intentionally, knowingly, or] recklessly
10-15 delivers an abusable volatile chemical [glue or aerosol paint] to a
10-16 person who is younger than 18 years of age.
10-17 (b) It is a defense to prosecution under this section that:
10-18 (1) the abusable volatile chemical [glue or aerosol
10-19 paint] that was delivered contains additive material that
10-20 effectively discourages intentional abuse by inhalation and [or] is
10-21 in compliance with rules adopted by the board [commissioner] under
10-22 Section 485.011; or
10-23 (2) the person making the delivery is not the
10-24 manufacturer of the chemical and the manufacturer of the chemical
10-25 failed to label the chemical in a manner that provided notice that
10-26 the chemical was vapor harmful.
10-27 (c) It is an affirmative defense to prosecution under this
11-1 section that:
11-2 (1) the person making the delivery is an adult having
11-3 supervisory responsibility over the person younger than 18 years of
11-4 age and:
11-5 (A) the adult permits the use of the abusable
11-6 volatile chemical [glue or aerosol paint] only under the adult's
11-7 direct supervision and in the adult's presence and only for its
11-8 intended purpose; and
11-9 (B) the adult removes the chemical [substance]
11-10 from the person younger than 18 years of age on completion of that
11-11 use; or
11-12 (2) the person to whom the abusable volatile chemical
11-13 [glue or aerosol paint] was delivered presented to the defendant an
11-14 apparently valid Texas driver's license or an identification
11-15 certificate [card], issued by the Department of Public Safety of
11-16 the State of Texas and containing a physical description consistent
11-17 with the person's appearance, that purported to establish that the
11-18 person was 18 years of age or older.
11-19 (d) Except as provided by Subsections (e) and (f), an
11-20 offense under this section is a state jail felony.
11-21 (e) An offense under this section is a Class B misdemeanor
11-22 if it is shown on the trial of the defendant that at the time of
11-23 the delivery the defendant or the defendant's employer held [had] a
11-24 volatile chemical [glue and paint] sales permit for the location of
11-25 the sale.
11-26 (f) An offense under this section is a Class A misdemeanor
11-27 if it is shown on the trial of the defendant that at the time of
12-1 the delivery the defendant or the defendant's employer:
12-2 (1) did not hold [have] a volatile chemical [glue and
12-3 paint] sales permit but did hold [have] a sales tax permit for the
12-4 location of the sale; and
12-5 (2) had not been convicted previously under this
12-6 section for an offense committed after January 1, 1988.
12-7 Sec. 485.034. INHALANT PARAPHERNALIA. (a) A person commits
12-8 an offense if the person [intentionally or] knowingly uses or
12-9 possesses with intent to use inhalant paraphernalia to inhale,
12-10 ingest, or otherwise introduce into the human body an abusable
12-11 volatile chemical [glue or aerosol paint] in violation of Section
12-12 485.031.
12-13 (b) A person commits an offense if the person:
12-14 (1) knowingly [or intentionally]:
12-15 (A) delivers or sells inhalant paraphernalia;
12-16 (B) possesses, with intent to deliver or sell,
12-17 inhalant paraphernalia; or
12-18 (C) manufactures, with intent to deliver or
12-19 sell, inhalant paraphernalia; and
12-20 (2) at the time of the act described by Subdivision
12-21 (1), knows that the person who receives or is intended to receive
12-22 the paraphernalia intends that it be used to inhale, ingest, apply,
12-23 use, or otherwise introduce into the human body a [substance
12-24 containing a] volatile chemical in violation of Section 485.031.
12-25 (c) An offense under Subsection (a) is a Class B
12-26 misdemeanor, and an offense under Subsection (b) is a Class A
12-27 misdemeanor.
13-1 Sec. 485.035. FAILURE TO POST SIGN. (a) A person commits
13-2 an offense if the person sells an abusable volatile chemical [glue
13-3 or aerosol paint] in a business establishment and the person does
13-4 not display the [a] sign [as] required by Section 485.018
13-5 [485.017].
13-6 (b) An offense under this section is a Class C misdemeanor.
13-7 Sec. 485.036. SALE WITHOUT PERMIT. (a) A person commits an
13-8 offense if the person sells an abusable volatile chemical [glue or
13-9 aerosol paint] in violation of Section 485.012 and the purchaser is
13-10 18 years of age or older.
13-11 (b) An offense under this section is a Class B misdemeanor.
13-12 Sec. 485.037. PROOF OF OFFER TO SELL. Proof of an offer to
13-13 sell an abusable volatile chemical [glue or aerosol paint] must be
13-14 corroborated by a person other than the offeree or by evidence
13-15 other than a statement of the offeree.
13-16 Sec. 485.038. SUMMARY FORFEITURE. An abusable volatile
13-17 chemical [glue, aerosol paint,] or inhalant paraphernalia seized as
13-18 a result of an offense under this chapter is subject to summary
13-19 forfeiture and to destruction or disposition in the same manner as
13-20 controlled substance property under Subchapter E, Chapter 481.
13-21 Sec. 485.039. PREPARATORY OFFENSES. Title 4, Penal Code,
13-22 applies to an offense under this subchapter.
13-23 SECTION 2. Chapter 484, Health and Safety Code, is repealed.
13-24 SECTION 3. (a) The changes in law made by this Act apply
13-25 only to an offense committed on or after the effective date of this
13-26 Act. An offense committed before the effective date of this Act is
13-27 covered by the law in effect when the offense was committed, and
14-1 the former law is continued in effect for that purpose. For
14-2 purposes of this subsection, an offense was committed before the
14-3 effective date of this Act if any element of the offense occurred
14-4 before that date.
14-5 (b) The changes in law made by this Act relating to a civil
14-6 or administrative penalty apply only to a violation of Chapter 485,
14-7 Health and Safety Code, as amended by this Act, or a rule of the
14-8 Texas Board of Health adopted under that chapter, as amended by
14-9 this Act, that occurs on or after the effective date of this Act.
14-10 A violation that occurred before the effective date of this Act is
14-11 covered by the law in effect when the violation occurred, and the
14-12 former law is continued in effect for that purpose. For purposes
14-13 of this subsection, a violation occurred before the effective date
14-14 of this Act if any element of the violation occurred before that
14-15 date.
14-16 (c) The change in law made by this Act relating to the
14-17 issuance of a permit applies only to a permit that is issued under
14-18 Chapter 485, Health and Safety Code, by the Texas Department of
14-19 Health on or after the effective date of this Act. A permit that
14-20 was issued by the Texas Department of Health before the effective
14-21 date of this Act remains in effect until the permit expires, is
14-22 surrendered by the holder, or is revoked or suspended by the
14-23 department.
14-24 SECTION 4. This Act takes effect September 1, 2001.