1-1 By: Chavez, Coleman (Senate Sponsor - Nelson) H.B. No. 2950
1-2 (In the Senate - Received from the House May 9, 2001;
1-3 May 10, 2001, read first time and referred to Committee on Business
1-4 and Commerce; May 11, 2001, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the regulation of certain abusable volatile chemicals.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. The heading to Chapter 485, Health and Safety
1-11 Code, is amended to read as follows:
1-12 CHAPTER 485. ABUSABLE VOLATILE CHEMICALS
1-13 [GLUES AND AEROSOL PAINTS]
1-14 SECTION 2. Subchapters A, B, and C, Chapter 485, Health and
1-15 Safety Code, are amended to read as follows:
1-16 SUBCHAPTER A. GENERAL PROVISIONS
1-17 Sec. 485.001. DEFINITIONS. In this chapter:
1-18 (1) "Abusable volatile chemical [glue or aerosol
1-19 paint]" means:
1-20 (A) a chemical, including [glue or] aerosol
1-21 paint, that [is]:
1-22 (i) is [(A)] packaged in a container
1-23 subject to [holding a pint or less by volume or less than two
1-24 pounds by weight; and]
1-25 [(B) labeled in accordance with] the labeling
1-26 requirements concerning precautions against inhalation established
1-27 under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
1-28 et seq.), as amended, and [under] regulations adopted under that
1-29 Act and is labeled with the statement of principal hazard on the
1-30 principal display panel "VAPOR HARMFUL" or other labeling
1-31 requirement subsequently established under that Act or those
1-32 regulations;
1-33 (ii) when inhaled, ingested, or otherwise
1-34 introduced into a person's body, may:
1-35 (a) affect the person's central
1-36 nervous system;
1-37 (b) create or induce in the person a
1-38 condition of intoxication, hallucination, or elation; or
1-39 (c) change, distort, or disturb the
1-40 person's eyesight, thinking process, balance, or coordination; and
1-41 (iii) is not:
1-42 (a) a pesticide subject to Chapter
1-43 76, Agriculture Code, or to the Federal Environmental Pesticide
1-44 Control Act of 1972 (7 U.S.C. Section 136 et seq.), as amended;
1-45 (b) a food, drug, or cosmetic
1-46 subject to Chapter 431 or to the Federal Food, Drug, and Cosmetic
1-47 Act (21 U.S.C. Section 301 et seq.), as amended; or
1-48 (c) a beverage subject to the
1-49 Federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.),
1-50 as amended; or
1-51 (B) nitrous oxide that is not:
1-52 (i) a pesticide subject to Chapter 76,
1-53 Agriculture Code, or to the Federal Environmental Pesticide Control
1-54 Act of 1972 (7 U.S.C. Section 136 et seq.), as amended;
1-55 (ii) a food, drug, or cosmetic subject to
1-56 Chapter 431 or to the Federal Food, Drug, and Cosmetic Act (21
1-57 U.S.C. Section 301 et seq.), as amended; or
1-58 (iii) a beverage subject to the Federal
1-59 Alcohol Administration Act (27 U.S.C. Section 201 et seq.), as
1-60 amended.
1-61 (2) "Aerosol paint" means an aerosolized paint
1-62 product, including a clear or pigmented lacquer or finish.
1-63 (3) "Board" means the Texas Board of Health.
1-64 (4) "Commissioner" means the commissioner of health.
2-1 (5) [(4)] "Deliver" means to make the actual or
2-2 constructive transfer from one person to another of an abusable
2-3 volatile chemical [glue or aerosol paint], regardless of whether
2-4 there is an agency relationship. The term includes an offer
2-5 [offering] to sell an abusable volatile chemical [glue or aerosol
2-6 paint].
2-7 (6) [(5)] "Delivery" means the act of delivering.
2-8 (7) [(6)] "Department" means the Texas Department of
2-9 Health.
2-10 [(7) "Glue" means an adhesive substance intended to be
2-11 used to join two surfaces.]
2-12 (8) "Inhalant paraphernalia" means equipment[,
2-13 products,] or materials of any kind that are [used or] intended for
2-14 use in inhaling, ingesting, or otherwise introducing into the human
2-15 body an abusable volatile chemical [glue or aerosol paint in
2-16 violation of Section 485.031]. The term includes[:]
2-17 [(A) a can, tube, or other container used as the
2-18 original receptacle for an abusable glue or aerosol paint; or]
2-19 [(B)] a [can,] tube, balloon, bag, fabric,
2-20 bottle, or other container used to [contain,] concentrate[,] or
2-21 hold in suspension an abusable volatile chemical [glue or aerosol
2-22 paint,] or vapors of the chemical [glue or paint].
2-23 (9) "Sell" includes a conveyance, exchange, barter, or
2-24 trade.
2-25 Sec. 485.002. RULES. The board may adopt rules necessary to
2-26 comply with any labeling requirements concerning precautions
2-27 against inhalation of an abusable volatile chemical established
2-28 under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
2-29 et seq.), as amended, or under regulations adopted under that Act.
2-30 SUBCHAPTER B. [ADDITIVES,] SALES PERMITS[,] AND SIGNS
2-31 Sec. 485.011. [ADDITIVES. (a) The commissioner by rule
2-32 shall:]
2-33 [(1) approve and designate additive materials to be
2-34 included in abusable glue or aerosol paint; and]
2-35 [(2) prescribe the proportions of additive materials
2-36 to be placed in abusable glue or aerosol paint.]
2-37 [(b) The rules must be designed to safely and effectively
2-38 discourage intentional abuse by inhalation of abusable glue or
2-39 aerosol paint at the lowest practicable cost to the manufacturers
2-40 and distributors of the glue or paint.]
2-41 [Sec. 485.012.] PERMIT REQUIRED. A person may not sell an
2-42 abusable volatile chemical [glue or aerosol paint] at retail unless
2-43 the person or the person's employer holds [has], at the time of the
2-44 sale, a volatile chemical [glue and paint] sales permit for the
2-45 location of the sale.
2-46 Sec. 485.012 [485.013]. ISSUANCE AND RENEWAL OF PERMIT.
2-47 (a) To be eligible for the issuance or renewal of a volatile
2-48 chemical [glue and paint] sales permit, a person must:
2-49 (1) hold [have] a sales tax permit that has been
2-50 issued to the person;
2-51 (2) complete and return to the department an
2-52 application as required by the department; and
2-53 (3) pay to the department the [a $25] application fee
2-54 established under Section 485.013 for each location at which an
2-55 abusable volatile chemical [glue and aerosol paint] may be sold by
2-56 the person holding [on obtaining] a volatile chemical [glue and
2-57 paint] sales permit.
2-58 (b) The board [department] shall adopt rules as necessary to
2-59 administer this chapter, including application procedures and
2-60 procedures by which the department shall give each permit holder
2-61 [permittee] reasonable notice of permit expiration and renewal
2-62 requirements.
2-63 (c) The department shall issue or deny a permit and notify
2-64 the applicant of the department's action not later than the 60th
2-65 day after the date on which the department receives the complete
2-66 application and appropriate fee. If the department denies an
2-67 application, the department shall include in the notice the reasons
2-68 for the denial.
2-69 (d) A permit issued or renewed under this chapter is valid
3-1 for one year from the date of issuance or renewal.
3-2 (e) A permit is not valid if the permit holder has been
3-3 convicted more than once in the preceding year of an offense [that
3-4 is] committed:
3-5 (1) at a [the] location for which the permit is
3-6 issued; and
3-7 (2) under Section [484.005(a),] 485.031, 485.032, or
3-8 485.033[, or 485.034].
3-9 (f) A permit issued by the department is the property of the
3-10 department and must be surrendered on demand by the department.
3-11 (g) The department shall prepare an annual roster of permit
3-12 holders.
3-13 (h) The department shall monitor and enforce compliance with
3-14 this chapter.
3-15 Sec. 485.013. FEE. The board by rule may establish fees in
3-16 amounts not to exceed $25 for the issuance of a permit under this
3-17 chapter.
3-18 Sec. 485.014. PERMIT AVAILABLE FOR INSPECTION. A permit
3-19 holder must have the volatile chemical [glue and paint] sales
3-20 permit or a copy of the permit available for inspection by the
3-21 public at each location [the place] where the permit holder sells
3-22 an abusable volatile chemical [glue and aerosol paint].
3-23 Sec. 485.015. REFUSAL TO ISSUE OR RENEW PERMIT. A
3-24 proceeding for the failure to issue or renew a volatile chemical
3-25 [glue and paint] sales permit under Section 485.012 [485.013] or
3-26 for an appeal from that proceeding is governed by the contested
3-27 case provisions of Chapter 2001, Government Code.
3-28 Sec. 485.016. DISPOSITION OF FUNDS; EDUCATION AND PREVENTION
3-29 PROGRAMS. (a) The department shall [receive and] account for all
3-30 amounts [funds] received under Section 485.013 and send those
3-31 amounts [the funds as they are received] to the comptroller.
3-32 (b) The comptroller shall deposit the amounts received under
3-33 Subsection (a) in the state treasury [those funds] to the credit of
3-34 the general revenue fund to be used only by the department to:
3-35 (1) administer, monitor, and enforce this chapter; and
3-36 (2) finance statewide education projects concerning
3-37 the hazards of abusable volatile chemicals [glue or aerosol paint]
3-38 and the prevention of inhalant abuse.
3-39 [(c) The department shall enter into a memorandum of
3-40 understanding with the Texas Commission on Alcohol and Drug Abuse
3-41 to implement the education and prevention programs.]
3-42 Sec. 485.017. SIGNS. A business establishment that sells an
3-43 abusable volatile chemical [glue or aerosol paint] at retail shall
3-44 display a conspicuous sign, in English and Spanish, that states the
3-45 following:
3-46 It is unlawful for a person to sell or deliver an
3-47 abusable volatile chemical [glue or aerosol paint] to a
3-48 person under 18 years of age. Except in limited
3-49 situations, such an offense is a state jail [3rd
3-50 degree] felony.
3-51 It is also unlawful for a person to abuse a volatile
3-52 chemical [glue or aerosol paint] by inhaling,
3-53 ingesting, applying, using, or possessing with intent
3-54 to inhale, ingest, apply, or use a volatile chemical
3-55 [glue or aerosol paint] in a manner designed to affect
3-56 the central nervous system. Such an offense is a
3-57 Class B misdemeanor.
3-58 Sec. 485.018. PROHIBITED ORDINANCE AND RULE. (a) A
3-59 political subdivision or an agency of this [the] state may not
3-60 enact an ordinance or rule that requires a business establishment
3-61 to display an abusable volatile chemical [glue or aerosol paint] in
3-62 a manner that makes the chemical [glue or paint] accessible to
3-63 patrons of the business only with the assistance of personnel of
3-64 the business.
3-65 (b) This section does not apply to an ordinance or rule that
3-66 was enacted before September 1, 1989.
3-67 Sec. 485.019. RESTRICTION OF ACCESS TO AEROSOL PAINT.
3-68 (a) A business establishment that holds a permit under Section
3-69 485.012 and that displays aerosol paint shall display the paint:
4-1 (1) in a place that is in the line of sight of a
4-2 cashier or in the line of sight from a workstation normally
4-3 continuously occupied during business hours;
4-4 (2) in a manner that makes the paint accessible to a
4-5 patron of the business establishment only with the assistance of an
4-6 employee of the establishment; or
4-7 (3) in an area electronically protected, or viewed by
4-8 surveillance equipment that is monitored, during business hours.
4-9 (b) This section does not apply to a business establishment
4-10 that has in place a computerized checkout system at the point of
4-11 sale for merchandise that alerts the cashier that a person
4-12 purchasing aerosol paint must be over 18 years of age.
4-13 (c) A court may issue a warning to a business establishment
4-14 or impose a civil penalty of $50 on the business establishment for
4-15 a first violation of this section. After receiving a warning or
4-16 penalty for the first violation, the business establishment is
4-17 liable to the state for a civil penalty of $100 for each subsequent
4-18 violation.
4-19 (d) For the third violation of this section in a calendar
4-20 year, a court may issue an injunction prohibiting the business
4-21 establishment from selling aerosol paint for a period of not more
4-22 than two years. A business establishment that violates the
4-23 injunction is liable to the state for a civil penalty of $100, in
4-24 addition to any other penalty authorized by law, for each day the
4-25 violation continues.
4-26 (e) If a business establishment fails to pay a civil penalty
4-27 under this section, the court may issue an injunction prohibiting
4-28 the establishment from selling aerosol paint until the
4-29 establishment pays the penalty, attorney's fees, and court costs.
4-30 (f) The district or county attorney for the county in which
4-31 a violation of this section is alleged to have occurred, or the
4-32 attorney general, if requested by the district or county attorney
4-33 for that county, may file suit for the issuance of a warning, the
4-34 collection of a penalty, or the issuance of an injunction.
4-35 (g) A penalty collected under this section shall be sent to
4-36 the comptroller for deposit in the state treasury to the credit of
4-37 the general revenue fund.
4-38 (h) This section applies only to a business establishment
4-39 that is located in a county with a population of 75,000 or more.
4-40 SUBCHAPTER C. CRIMINAL PENALTIES
4-41 Sec. 485.031. POSSESSION AND USE. (a) A person commits an
4-42 offense if the person inhales, ingests, applies, uses, or possesses
4-43 an abusable volatile chemical [glue or aerosol paint] with intent
4-44 to inhale, ingest, apply, or use the chemical [abusable glue or
4-45 aerosol paint] in a manner:
4-46 (1) contrary to directions for use, cautions, or
4-47 warnings appearing on a label of a container of the chemical [glue
4-48 or paint]; and
4-49 (2) designed to:
4-50 (A) affect the person's central nervous system;
4-51 (B) create or induce a condition of
4-52 intoxication, hallucination, or elation; or
4-53 (C) change, distort, or disturb the person's
4-54 eyesight, thinking process, balance, or coordination.
4-55 (b) An offense under this section is a Class B misdemeanor.
4-56 Sec. 485.032. [MANUFACTURE AND DELIVERY. (a) A person
4-57 commits an offense if the person intentionally manufactures,
4-58 delivers, or possesses with intent to manufacture or deliver
4-59 abusable glue or aerosol paint that does not contain additive
4-60 material in accordance with rules adopted by the commissioner.]
4-61 [(b) It is an affirmative defense to prosecution under this
4-62 section that the abusable glue or aerosol paint is packaged in bulk
4-63 quantity containers, each of which holds at least two gallons, and
4-64 is intended for ultimate use only by industrial or commercial
4-65 enterprises.]
4-66 [(c) An offense under this section is a Class A misdemeanor.]
4-67 [Sec. 485.033.] DELIVERY TO A MINOR. (a) A person commits
4-68 an offense if the person [intentionally,] knowingly[, or
4-69 recklessly] delivers an abusable volatile chemical [glue or aerosol
5-1 paint] to a person who is younger than 18 years of age.
5-2 (b) It is a defense to prosecution under this section that:
5-3 (1) the abusable volatile chemical [glue or aerosol
5-4 paint] that was delivered contains additive material that
5-5 effectively discourages intentional abuse by inhalation; or
5-6 (2) the person making the delivery is not the
5-7 manufacturer of the chemical and the manufacturer of the chemical
5-8 failed to label the chemical with the statement of principal hazard
5-9 on the principal display panel "VAPOR HARMFUL" or other labeling
5-10 requirement subsequently established under the Federal Hazardous
5-11 Substances Act (15 U.S.C. Section 1261 et seq.), as amended, or
5-12 regulations subsequently adopted under that Act [is in compliance
5-13 with rules adopted by the commissioner under Section 485.011].
5-14 (c) It is an affirmative defense to prosecution under this
5-15 section that:
5-16 (1) the person making the delivery is an adult having
5-17 supervisory responsibility over the person younger than 18 years of
5-18 age and:
5-19 (A) the adult permits the use of the abusable
5-20 volatile chemical [glue or aerosol paint] only under the adult's
5-21 direct supervision and in the adult's presence and only for its
5-22 intended purpose; and
5-23 (B) the adult removes the chemical [substance]
5-24 from the person younger than 18 years of age on completion of that
5-25 use; or
5-26 (2) the person to whom the abusable volatile chemical
5-27 [glue or aerosol paint] was delivered presented to the defendant an
5-28 apparently valid Texas driver's license or an identification
5-29 certificate [card], issued by the Department of Public Safety of
5-30 the State of Texas and containing a physical description consistent
5-31 with the person's appearance, that purported to establish that the
5-32 person was 18 years of age or older.
5-33 (d) Except as provided by Subsections (e) and (f), an
5-34 offense under this section is a state jail felony.
5-35 (e) An offense under this section is a Class B misdemeanor
5-36 if it is shown on the trial of the defendant that at the time of
5-37 the delivery the defendant or the defendant's employer held [had] a
5-38 volatile chemical [glue and paint] sales permit for the location of
5-39 the sale.
5-40 (f) An offense under this section is a Class A misdemeanor
5-41 if it is shown on the trial of the defendant that at the time of
5-42 the delivery the defendant or the defendant's employer:
5-43 (1) did not hold [have] a volatile chemical [glue and
5-44 paint] sales permit but did hold [have] a sales tax permit for the
5-45 location of the sale; and
5-46 (2) had not been convicted previously under this
5-47 section for an offense committed after January 1, 1988.
5-48 Sec. 485.033 [485.034]. INHALANT PARAPHERNALIA. (a) A
5-49 person commits an offense if the person [intentionally or]
5-50 knowingly uses or possesses with intent to use inhalant
5-51 paraphernalia to inhale, ingest, or otherwise introduce into the
5-52 human body an abusable volatile chemical [glue or aerosol paint] in
5-53 violation of Section 485.031.
5-54 (b) A person commits an offense if the person:
5-55 (1) knowingly [or intentionally]:
5-56 (A) delivers or sells inhalant paraphernalia;
5-57 (B) possesses, with intent to deliver or sell,
5-58 inhalant paraphernalia; or
5-59 (C) manufactures, with intent to deliver or
5-60 sell, inhalant paraphernalia; and
5-61 (2) at the time of the act described by Subdivision
5-62 (1), knows that the person who receives or is intended to receive
5-63 the paraphernalia intends that it be used to inhale, ingest, apply,
5-64 use, or otherwise introduce into the human body a [substance
5-65 containing a] volatile chemical in violation of Section 485.031.
5-66 (c) An offense under Subsection (a) is a Class B
5-67 misdemeanor, and an offense under Subsection (b) is a Class A
5-68 misdemeanor.
5-69 Sec. 485.034 [485.035]. FAILURE TO POST SIGN. (a) A person
6-1 commits an offense if the person sells an abusable volatile
6-2 chemical [glue or aerosol paint] in a business establishment and
6-3 the person does not display the [a] sign [as] required by Section
6-4 485.017.
6-5 (b) An offense under this section is a Class C misdemeanor.
6-6 Sec. 485.035 [485.036]. SALE WITHOUT PERMIT. (a) A person
6-7 commits an offense if the person sells an abusable volatile
6-8 chemical [glue or aerosol paint] in violation of Section 485.011
6-9 [485.012] and the purchaser is 18 years of age or older.
6-10 (b) An offense under this section is a Class B misdemeanor.
6-11 Sec. 485.036 [485.037]. PROOF OF OFFER TO SELL. Proof of an
6-12 offer to sell an abusable volatile chemical [glue or aerosol paint]
6-13 must be corroborated by a person other than the offeree or by
6-14 evidence other than a statement of the offeree.
6-15 Sec. 485.037 [485.038]. SUMMARY FORFEITURE. An abusable
6-16 volatile chemical [glue, aerosol paint,] or inhalant paraphernalia
6-17 seized as a result of an offense under this chapter is subject to
6-18 summary forfeiture and to destruction or disposition in the same
6-19 manner as controlled substance property under Subchapter E, Chapter
6-20 481.
6-21 Sec. 485.038 [485.039]. PREPARATORY OFFENSES. Title 4,
6-22 Penal Code, applies to an offense under this subchapter.
6-23 SECTION 3. Section 565.001(a), Occupations Code, is amended
6-24 to read as follows:
6-25 (a) The board may discipline an applicant for or the holder
6-26 of a license to practice pharmacy if the board finds that the
6-27 applicant or license holder has:
6-28 (1) violated this subtitle or a board rule adopted
6-29 under this subtitle;
6-30 (2) engaged in unprofessional conduct as defined by
6-31 board rule;
6-32 (3) engaged in gross immorality as defined by board
6-33 rule;
6-34 (4) developed an incapacity that prevents the
6-35 applicant or license holder from practicing pharmacy with
6-36 reasonable skill, competence, and safety to the public;
6-37 (5) engaged in fraud, deceit, or misrepresentation, as
6-38 defined by board rule, in practicing pharmacy or in seeking a
6-39 license to practice pharmacy;
6-40 (6) been convicted of a misdemeanor involving moral
6-41 turpitude or a felony;
6-42 (7) developed a drug or alcohol dependency;
6-43 (8) failed to maintain records required by this
6-44 subtitle or failed to maintain complete and accurate records of
6-45 purchases or disposals of drugs listed in Chapter 481 or 483,
6-46 Health and Safety Code, or the Comprehensive Drug Abuse Prevention
6-47 and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
6-48 (9) violated any provision of:
6-49 (A) Chapter 481 or 483, Health and Safety Code,
6-50 or the Comprehensive Drug Abuse Prevention and Control Act of 1970
6-51 (21 U.S.C. Section 801 et seq.), or rules relating to one of those
6-52 laws; or
6-53 (B) Section 485.031, 485.032, 485.033, or
6-54 485.034[, or 485.035], Health and Safety Code; [or]
6-55 [(C) a rule adopted under Section 485.011,
6-56 Health and Safety Code;]
6-57 (10) aided or abetted an unlicensed person in the
6-58 practice of pharmacy if the pharmacist knew or reasonably should
6-59 have known that the person was unlicensed at the time;
6-60 (11) refused entry into a pharmacy for an inspection
6-61 authorized by this subtitle if the pharmacist received notification
6-62 from which the pharmacist knew or reasonably should have known that
6-63 the attempted inspection was authorized;
6-64 (12) violated any pharmacy or drug statute or rule of
6-65 this state, another state, or the United States;
6-66 (13) been negligent in the practice of pharmacy;
6-67 (14) failed to submit to an examination after hearing
6-68 and being ordered to do so by the board under Section 565.052;
6-69 (15) dispensed a prescription drug while acting
7-1 outside the usual course and scope of professional practice; or
7-2 (16) had a license to practice pharmacy issued by
7-3 another state canceled, revoked, surrendered, or suspended for
7-4 conduct substantially equivalent to conduct described under this
7-5 subsection.
7-6 SECTION 4. Chapter 484, Health and Safety Code, is repealed.
7-7 SECTION 5. (a) The changes in law made by this Act apply
7-8 only to an offense committed on or after the effective date of this
7-9 Act. An offense committed before the effective date of this Act is
7-10 covered by the law in effect when the offense was committed, and
7-11 the former law is continued in effect for that purpose. For
7-12 purposes of this subsection, an offense was committed before the
7-13 effective date of this Act if any element of the offense occurred
7-14 before that date.
7-15 (b) The change in law made by this Act relating to the
7-16 issuance of a permit applies only to a permit that is issued under
7-17 Chapter 485, Health and Safety Code, by the Texas Department of
7-18 Health on or after the effective date of this Act. A permit that
7-19 was issued by the Texas Department of Health before the effective
7-20 date of this Act remains in effect until the permit expires, is
7-21 surrendered by the holder, or is revoked or suspended by the
7-22 department.
7-23 SECTION 6. This Act takes effect September 1, 2001.
7-24 * * * * *