By: Van de Putte, et al. S.B. No. 112
A BILL TO BE ENTITLED
AN ACT
relating to the civil and criminal consequences of engaging in
certain conduct related to the manufacture of methamphetamine and
to the distribution and retail sales of pseudoephedrine.
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. Subsection (b), Section 481.124, 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 4. 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
pseudoephedrine to a retailer shall:
(1) before delivering the pseudoephedrine, 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 pseudoephedrine delivered; and
(3) any other information required by the director.
(c) Not later than five business days after receipt of an
order for pseudoephedrine that requests delivery of a suspicious
quantity of pseudoephedrine 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 5. 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 6. (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) Subsection (b), Section 481.124, Health and Safety
Code, as amended by this Act, and Subsection (c-1), Section 22.041,
Penal Code, as added by this Act, 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 7. This Act takes effect immediately 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 for immediate effect, this
Act takes effect September 1, 2005.