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78R2818 JD-D
By: Uresti H.B. No. 340
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of dextromethorphan; providing
administrative, civil, and criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle C, Title 6, Health and Safety Code, is
amended by adding Chapter 486 to read as follows:
CHAPTER 486. DEXTROMETHORPHAN
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 486.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Commissioner" means the commissioner of public
health.
(3) "Deliver" means an actual or constructive transfer
from one person to another, regardless of whether there is an agency
relationship. The term includes an offer to sell.
(4) "Delivery" means the act of delivering.
(5) "Department" means the Texas Department of Health.
(6) "Dextromethorphan" includes a product containing
any detectable amount of dextromethorphan.
(7) "Sell" includes a conveyance, exchange, barter, or
trade.
Sec. 486.002. RULES. The board shall adopt rules necessary
to implement and enforce this chapter.
[Sections 486.003-486.010 reserved for expansion]
SUBCHAPTER B. SALES OF DEXTROMETHORPHAN AND SIGNS
Sec. 486.011. SIGNS. A business establishment that sells
dextromethorphan at retail shall display a conspicuous sign, in
English and Spanish, that states the following:
"It is unlawful for a person to sell or deliver a product
containing dextromethorphan to a person younger than 18 years of
age. Except in limited situations, such an offense is a Class B
misdemeanor.
It is also unlawful for a person younger than 18 years of age
to abuse a product containing dextromethorphan by ingesting, using,
or possessing with intent to ingest or use the product in a manner
designed to affect the central nervous system. Such an offense is a
Class B misdemeanor."
Sec. 486.012. RESTRICTION OF ACCESS TO DEXTROMETHORPHAN.
(a) A business establishment that displays dextromethorphan shall
display the dextromethorphan in a manner that makes the
dextromethorphan accessible to a patron of the business
establishment only with the assistance of an employee of the
establishment.
(b) A court may issue a warning to a business establishment
or impose a civil penalty of $50 on the business establishment for a
first violation of this section. After receiving a warning or
penalty for the first violation, the business establishment is
liable to the state for a civil penalty of $100 for each subsequent
violation.
(c) For the third violation of this section in a calendar
year, a court may issue an injunction prohibiting the business
establishment from selling dextromethorphan for a period of not
more than two years. A business establishment that violates the
injunction is liable to the state for a civil penalty of $100, in
addition to any other penalty authorized by law, for each day the
violation continues.
(d) If a business establishment fails to pay a civil penalty
under this section, the court may issue an injunction prohibiting
the establishment from selling dextromethorphan until the
establishment pays the penalty, attorney's fees, and court costs.
(e) The district or county attorney for the county in which
a violation of this section is alleged to have occurred, or the
attorney general, if requested by the district or county attorney
for that county, may file suit for the issuance of a warning, the
collection of a penalty, or the issuance of an injunction.
Sec. 486.013. COMPUTERIZED CHECKOUT SYSTEMS. If a business
establishment that sells dextromethorphan at retail has in place a
computerized checkout system at the point of sale for merchandise,
the system must alert the cashier that a person purchasing
dextromethorphan must be 18 years of age or older.
[Sections 486.014-486.030 reserved for expansion]
SUBCHAPTER C. CRIMINAL PENALTIES
Sec. 486.031. POSSESSION AND USE OF DEXTROMETHORPHAN BY
MINOR. (a) A person commits an offense if the person:
(1) is younger than 18 years of age; and
(2) ingests, uses, or possesses dextromethorphan with
intent to ingest or use the dextromethorphan in a manner:
(A) contrary to directions for use, cautions, or
warnings appearing on a label of a container of the
dextromethorphan; and
(B) designed to:
(i) affect the person's central nervous
system;
(ii) create or induce a condition of
intoxication, hallucination, or elation; or
(iii) change, distort, or disturb the
person's eyesight, thinking process, balance, or coordination.
(b) An offense under this section is a Class B misdemeanor.
Sec. 486.032. DELIVERY TO A MINOR. (a) A person commits an
offense if the person knowingly delivers dextromethorphan to a
person who is younger than 18 years of age.
(b) It is an affirmative defense to prosecution under this
section that:
(1) the person making the delivery is an adult having
supervisory responsibility over the person younger than 18 years of
age and:
(A) the adult permits the use of the
dextromethorphan only:
(i) under the adult's direct supervision;
(ii) in the adult's presence;
(iii) for its intended purpose; and
(iv) according to the directions for use,
cautions, or warnings appearing on a label of the container of the
dextromethorphan; and
(B) the adult removes the dextromethorphan from
the person younger than 18 years of age on completion of that use;
or
(2) the person to whom the dextromethorphan was
delivered presented to the defendant an apparently valid driver's
license or personal identification certificate, issued by the Texas
Department of Public Safety and containing a physical description
consistent with the person's appearance, that purported to
establish that the person was 18 years of age or older.
(c) Except as provided by Subsection (d), an offense under
this section is a Class B misdemeanor.
(d) An offense under this section is a felony of the third
degree if it is shown on the trial of the defendant that at the time
of the delivery the defendant or the defendant's employer did not
hold a sales tax permit for the location of the sale.
Sec. 486.033. FAILURE TO POST SIGN. (a) A person commits an
offense if the person sells dextromethorphan in a business
establishment and the person does not display the sign required by
Section 486.011.
(b) An offense under this section is a Class C misdemeanor.
Sec. 486.034. PROOF OF OFFER TO SELL. Proof of an offer to
sell dextromethorphan must be corroborated by a person other than
the offeree or by evidence other than a statement of the offeree.
Sec. 486.035. SUMMARY FORFEITURE. Dextromethorphan seized
as a result of an offense under this chapter is subject to summary
forfeiture and to destruction or disposition in the same manner as
controlled substance property under Subchapter E, Chapter 481.
Sec. 486.036. PREPARATORY OFFENSES. Title 4, Penal Code,
applies to an offense under this subchapter.
[Sections 486.037-486.050 reserved for expansion]
SUBCHAPTER D. ADMINISTRATIVE PENALTY
Sec. 486.051. IMPOSITION OF PENALTY. The department may
impose an administrative penalty on a person who sells
dextromethorphan at retail who violates this chapter or a rule or
order adopted under this chapter.
Sec. 486.052. AMOUNT OF PENALTY. (a) The amount of the
penalty may not exceed $1,000 for each violation, and each day a
violation continues or occurs is a separate violation for purposes
of imposing a penalty. The total amount of the penalty assessed for
a violation continuing or occurring on separate days under this
subsection may not exceed $5,000.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the threat to health or safety caused by the
violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) whether the violator demonstrated good faith,
including when applicable whether the violator made good faith
efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 486.053. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the department initially determines that a violation
occurred, the department shall give written notice of the report by
certified mail to the person.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 486.054. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Before the 21st day after the date the person receives notice under
Section 486.053, the person in writing may:
(1) accept the determination and recommended penalty
of the department; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty or if the person fails to respond to the notice, the
commissioner by order shall approve the determination.
Sec. 486.055. HEARING. (a) If the person requests a
hearing, the commissioner shall refer the matter to the State
Office of Administrative Hearings, which shall promptly set a
hearing date and give written notice of the time and place of the
hearing to the person. An administrative law judge of the State
Office of Administrative Hearings shall conduct the hearing.
(b) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the commissioner a
proposal for a decision about the occurrence of the violation and
the amount of a proposed penalty.
Sec. 486.056. DECISION BY COMMISSIONER. (a) Based on the
findings of fact, conclusions of law, and proposal for a decision,
the commissioner by order may:
(1) find that a violation occurred and impose a
penalty; or
(2) find that a violation did not occur.
(b) The notice of the commissioner's order under Subsection
(a) that is sent to the person in the manner provided by Chapter
2001, Government Code, must include a statement of the right of the
person to judicial review of the order.
Sec. 486.057. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
Before the 31st day after the date the order of the commissioner
under Section 486.056 that imposes an administrative penalty
becomes final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review of the
commissioner's order contesting the occurrence of the violation,
the amount of the penalty, or both.
Sec. 486.058. STAY OF ENFORCEMENT OF PENALTY. (a) Within
the period prescribed by Section 486.057, a person who files a
petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the commissioner's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) sending a copy of the affidavit to the
commissioner by certified mail.
(b) If the commissioner receives a copy of an affidavit
under Subsection (a)(2), the commissioner may file with the court,
before the 6th day after the date the copy is received, a contest to
the affidavit. The court shall hold a hearing on the facts alleged
in the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the penalty or to give
a supersedeas bond.
Sec. 486.059. COLLECTION OF PENALTY. (a) If the person
does not pay the penalty and the enforcement of the penalty is not
stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 486.060. DECISION BY COURT. (a) If the court sustains
the finding that a violation occurred, the court may uphold or
reduce the amount of the penalty and order the person to pay the
full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 486.061. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the penalty and if the amount of the penalty is
reduced or the penalty is not upheld by the court, the court shall
order, when the court's judgment becomes final, that the
appropriate amount plus accrued interest be remitted to the person
before the 31st day after the date that the judgment of the court
becomes final.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
Sec. 486.062. RELEASE OF BOND. (a) If the person gave a
supersedeas bond and the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, the
release of the bond.
(b) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 486.063. ADMINISTRATIVE PROCEDURE. A proceeding to
impose the penalty is considered to be a contested case under
Chapter 2001, Government Code.
SECTION 2. (a) This Act takes effect September 1, 2003.
(b) Chapter 486, Health and Safety Code, as added by this
Act, applies only to conduct engaged in or an offense committed on
or after September 1, 2003.
(c) Conduct engaged in or an offense committed before
September 1, 2003, is covered by the law in effect when the conduct
was engaged in or the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this
subsection, an offense was committed before September 1, 2003, if
any element of the offense was committed before that date.