By: Berman, et al. (Senate Sponsor - Estes) H.B. No. 164
(In the Senate - Received from the House May 16, 2005;
May 17, 2005, read first time and referred to Committee on Criminal
Justice; May 20, 2005, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 4, Nays 0;
May 20, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 164 By: Hinojosa
A BILL TO BE ENTITLED
AN ACT
relating to the civil and criminal consequences of engaging in
conduct related to the manufacture of methamphetamine and to the
distribution and retail sales of certain chemical substances.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 99.003, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 99.003. STRICT LIABILITY AND MINIMUM DAMAGES FOR
EXPOSURE. A person who manufactures methamphetamine is strictly
liable for any exposure by an individual to the manufacturing
process, including exposure to the methamphetamine itself or any of
the byproducts or waste products incident to the manufacture, for
the greater of:
(1) actual damages for personal injury, death, or
property damage as a result of the exposure; or
(2) $20,000 [$10,000] for each incident of exposure.
SECTION 2. Section 262.104, Family Code, is amended to read
as follows:
Sec. 262.104. TAKING POSSESSION OF A CHILD IN EMERGENCY
WITHOUT A COURT ORDER. (a) If there is no time to obtain a
temporary restraining order or attachment before taking possession
of a child consistent with the health and safety of that child, an
authorized representative of the Department of Family and
Protective [and Regulatory] Services, a law enforcement officer, or
a juvenile probation officer may take possession of a child without
a court order under the following conditions, only:
(1) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that there is an
immediate danger to the physical health or safety of the child;
(2) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that there is an immediate danger to the physical health or
safety of the child;
(3) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that the child
has been the victim of sexual abuse;
(4) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the child has been the victim of sexual abuse; or
(5) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the parent or person who has possession of the child is
currently using a controlled substance as defined by Chapter 481,
Health and Safety Code, and the use constitutes an immediate danger
to the physical health or safety of the child.
(b) An authorized representative of the Department of
Family and Protective Services, a law enforcement officer, or a
juvenile probation officer may take possession of a child under
Subsection (a) on personal knowledge or information furnished by
another, that has been corroborated by personal knowledge, that
would lead a person of ordinary prudence and caution to believe that
the parent or person who has possession of the child has permitted
the child to remain on premises used for the manufacture of
methamphetamine.
SECTION 3. Subchapter C, Chapter 481, Health and Safety
Code, is amended by adding Section 481.0721 to read as follows:
Sec. 481.0721. OVER-THE-COUNTER SALES OF EPHEDRINE,
PSEUDOEPHEDRINE, AND NORPSEUDOEPHEDRINE. (a) In this section,
"ephedrine," "pseudoephedrine," and "norpseudoephedrine" mean any
compound, mixture, or preparation containing any detectable amount
of that substance, including its salts, optical isomers, and salts
of optical isomers. The term does not include any compound,
mixture, or preparation that is in liquid, liquid capsule, or
liquid gel capsule form.
(b) A business establishment may engage in over-the-counter
sales of products containing ephedrine, pseudoephedrine, or
norpseudoephedrine only if the establishment:
(1) operates a pharmacy licensed by the Texas State
Board of Pharmacy;
(2) engages only in direct retail sales to patrons of
the establishment for the patrons' personal use; and
(3) complies with the requirements of this section.
(c) A business establishment that engages in
over-the-counter sales of products containing ephedrine,
pseudoephedrine, or norpseudoephedrine as the only active
ingredient shall maintain those products behind the pharmacy
counter.
(d) A business establishment that engages in
over-the-counter sales of products that contain ephedrine,
pseudoephedrine, or norpseudoephedrine combined with at least one
other active ingredient shall maintain those products:
(1) behind the pharmacy counter; or
(2) in a locked case within 30 feet and in a direct
line of sight from the pharmacy counter staffed by an employee of
the establishment.
(e) Before completing an over-the-counter sale of a product
containing ephedrine, pseudoephedrine, or norpseudoephedrine, a
business establishment shall:
(1) require the person purchasing the product to:
(A) display a driver's license or other form of
identification containing the person's photograph and date of
birth; and
(B) sign for the purchase;
(2) make a record of the sale, including the name and
date of birth of the person making the purchase, the date of
purchase, and the item and number of grams purchased; and
(3) take actions necessary to prevent a person who
makes over-the-counter purchases of one or more products containing
ephedrine, pseudoephedrine, or norpseudoephedrine from obtaining
from the establishment in a single transaction more than:
(A) two packages of those products; or
(B) six grams of ephedrine, pseudoephedrine,
norpseudoephedrine, or a combination of those substances.
(f) The business establishment shall maintain each record
made under Subsection (e)(2) for at least two years after the date
the record is made and shall make each record available on request
by the department or the Texas State Board of Pharmacy.
SECTION 4. Section 481.077(l), Health and Safety Code, is
amended to read as follows:
(l) This section does not apply to the sale or transfer of
any compound, mixture, or preparation containing [a nonnarcotic
product that:
[(1) includes:
[(A)] ephedrine,[;
[(B)] pseudoephedrine, or[;
[(C)] norpseudoephedrine that is in liquid,
liquid capsule, or liquid gel capsule form[; or
[(D) phenylpropanolamine; and
[(2) is sold with a prescription or over the counter in
accordance with a federal statute or rule].
SECTION 5. Subchapter C, Chapter 481, Health and Safety
Code, is amended by adding Section 481.0771 to read as follows:
Sec. 481.0771. RECORDS AND REPORTS ON PSEUDOEPHEDRINE.
(a) A wholesaler who sells, transfers, or otherwise furnishes a
product containing ephedrine, pseudoephedrine, or
norpseudoephedrine to a retailer shall:
(1) before delivering the product, obtain from the
retailer the retailer's address, area code, and telephone number;
and
(2) make an accurate and legible record of the
transaction and maintain the record for at least two years after the
date of the transaction.
(b) The wholesaler shall make all records available to the
director in accordance with department rule, including:
(1) the information required by Subsection (a)(1);
(2) the amount of the product containing ephedrine,
pseudoephedrine, or norpseudoephedrine delivered; and
(3) any other information required by the director.
(c) Not later than five business days after receipt of an
order for a product containing ephedrine, pseudoephedrine, or
norpseudoephedrine that requests delivery of a suspicious quantity
of the product as determined by department rule, a wholesaler shall
submit to the director a report of the order in accordance with
department rule.
(d) A wholesaler who, with reckless disregard for the duty
to report, fails to report as required by Subsection (c) may be
subject to disciplinary action in accordance with department rule.
SECTION 6. Section 481.124(b), Health and Safety Code, is
amended to read as follows:
(b) For purposes of this section, an intent to unlawfully
manufacture the controlled substance methamphetamine is presumed
if the actor possesses or transports:
(1) anhydrous ammonia in a container or receptacle
that is not designed and manufactured to lawfully hold or transport
anhydrous ammonia;
(2) lithium metal removed from a battery and immersed
in kerosene, mineral spirits, or similar liquid that prevents or
retards hydration; or
(3) in one container, vehicle, or building,
phenylacetic acid, or more than nine grams, three containers
packaged for retail sale, or 300 tablets or capsules of a product
containing ephedrine or pseudoephedrine, and:
(A) anhydrous ammonia;
(B) at least three of the following categories of
substances commonly used in the manufacture of methamphetamine:
(i) lithium or sodium metal or red
phosphorus, iodine, or iodine crystals;
(ii) lye, sulfuric acid, hydrochloric acid,
or muriatic acid;
(iii) an organic solvent, including ethyl
ether, alcohol, or acetone;
(iv) a petroleum distillate, including
naphtha, paint thinner, or charcoal lighter fluid; or
(v) aquarium, rock, or table salt; or
(C) at least three of the following items:
(i) an item of equipment subject to
regulation under Section 481.080, if the person is not registered
under Section 481.063; or
(ii) glassware, a plastic or metal
container, tubing, a hose, or other item specially designed,
assembled, or adapted for use in the manufacture, processing,
analyzing, storing, or concealing of methamphetamine.
SECTION 7. Subchapter D, Chapter 481, Health and Safety
Code, is amended by adding Section 481.1245 to read as follows:
Sec. 481.1245. OFFENSE: POSSESSION OR TRANSPORT OF
ANHYDROUS AMMONIA; USE OF OR TAMPERING WITH EQUIPMENT. (a) A
person commits an offense if the person:
(1) possesses or transports anhydrous ammonia in a
container or receptacle that is not designed or manufactured to
hold or transport anhydrous ammonia;
(2) uses, transfers, or sells a container or
receptacle that is designed or manufactured to hold anhydrous
ammonia without the express consent of the owner of the container or
receptacle; or
(3) tampers with equipment that is manufactured or
used to hold, apply, or transport anhydrous ammonia without the
express consent of the owner of the equipment.
(b) An offense under this section is a felony of the third
degree.
SECTION 8. Section 22.041, Penal Code, is amended by adding
Subsection (c-1) to read as follows:
(c-1) For purposes of Subsection (c), it is presumed that a
person engaged in conduct that places a child in imminent danger of
death, bodily injury, or physical or mental impairment if the
person manufactured the controlled substance methamphetamine in
the presence of the child.
SECTION 9. Chapter 504, Health and Safety Code, is
repealed.
SECTION 10. (a) Section 99.003, Civil Practice and
Remedies Code, as amended by this Act, applies only to a cause of
action that accrues on or after September 1, 2005. An action that
accrued before September 1, 2005, is governed by the law applicable
to the action immediately before September 1, 2005, and that law is
continued in effect for that purpose.
(b) The changes in law made by this Act in amending Section
481.124(b), Health and Safety Code, in adding Section 481.1245,
Health and Safety Code, and Section 22.041(c-1), Penal Code, and in
repealing Chapter 504, Health and Safety Code, apply only to an
offense committed on or after September 1, 2005. An offense
committed before September 1, 2005, is covered by the law in effect
when the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before September 1, 2005, if any element of the
offense was committed before that date.
(c) The director of the Department of Public Safety of the
State of Texas shall adopt any rules necessary to administer and
enforce Section 481.0771, Health and Safety Code, as added by this
Act, not later than September 1, 2005.
SECTION 11. This Act takes effect August 1, 2005, if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary to take effect on
that date, this Act takes effect September 1, 2005.
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