By: Estes S.B. No. 107
A BILL TO BE ENTITLED
relating to prohibiting over-the-counter sales of certain forms of
pseudoephedrine; providing administrative 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. PSEUDOEPHEDRINE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 486.001. DEFINITIONS. In this chapter:
(1) "Commissioner" means the commissioner of state
(2) "Council" means the State Health Services Council.
(3) "Department" means the Department of State Health
(4) "Pseudoephedrine" means any compound, mixture, or
preparation containing any detectable amount of pseudoephedrine,
including its salts, optical isomers, and salts of optical isomers.
The term does not include any compounds, mixtures, or preparations
that are in liquid, liquid capsule, or gel capsule form and in which
pseudoephedrine is not the only active ingredient.
(5) "Sale" includes a conveyance, exchange, barter, or
Sec. 486.002. APPLICABILITY. This chapter does not apply
to the sale of any product dispensed or delivered by a pharmacist
according to a prescription issued by a practitioner, as defined by
Section 481.002(39), for a valid medical purpose and in the course
of professional practice.
Sec. 486.003. RULES. The council shall adopt rules
necessary to implement and enforce this chapter.
[Sections 486.004-486.010 reserved for expansion]
SUBCHAPTER B. PROHIBITED SALES
Sec. 486.011. OVER-THE-COUNTER SALES OF PSEUDOEPHEDRINE. A
person may not engage in over-the-counter sales of pseudoephedrine.
[Sections 486.012-486.020 reserved for expansion]
SUBCHAPTER C. ADMINISTRATIVE PENALTY
Sec. 486.021. IMPOSITION OF PENALTY. The department may
impose an administrative penalty on a person who sells
pseudoephedrine in violation of this chapter.
Sec. 486.022. 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
(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. 486.023. 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. 486.024. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Before the 21st day after the date the person receives notice under
Section 486.023, 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. 486.025. 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. 486.026. 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
(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. 486.027. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
Before the 31st day after the date the order of the commissioner
under Section 486.026 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. 486.028. STAY OF ENFORCEMENT OF PENALTY. (a) Within
the period prescribed by Section 486.027, 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
(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. 486.029. 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. 486.030. 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
Sec. 486.031. 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
(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
Sec. 486.032. 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. 486.033. ADMINISTRATIVE PROCEDURE. A proceeding to
impose the penalty is considered to be a contested case under
Chapter 2001, Government Code.
SECTION 2. The State Health Services Council shall adopt
rules to implement and enforce Chapter 486, Health and Safety Code,
as added by this Act, not later than October 31, 2005.
SECTION 3. This Act takes effect September 1, 2005.