By: Van de Putte, et al. S.B. No. 112
(In the Senate - Filed November 23, 2004; February 1, 2005,
read first time and referred to Committee on Criminal Justice;
May 2, 2005, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; May 2, 2005, sent
to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 112 By: Hinojosa
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; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CIVIL AND CRIMINAL CONSEQUENCES OF ENGAGING IN CERTAIN
CONDUCT RELATED TO THE MANUFACTURE OF METHAMPHETAMINE
SECTION 1.01. 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 1.02. 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 1.03. 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.
ARTICLE 2. DISTRIBUTION AND RETAIL SALES OF PSEUDOEPHEDRINE
SECTION 2.01. Subtitle B, Title 6, Health and Safety Code,
is amended by adding Chapter 468 to read as follows:
CHAPTER 468. METHAMPHETAMINE WATCH PROGRAM
Sec. 468.001. DEFINITIONS. In this chapter:
(1) "Department" means the Department of State Health
Services.
(2) "Program" means the methamphetamine watch program
established under this chapter.
(3) "Retailer" means a business establishment in this
state that engages in over-the-counter retail sales of any product
containing pseudoephedrine.
Sec. 468.002. ESTABLISHMENT OF METHAMPHETAMINE WATCH
PROGRAM. The department shall establish a methamphetamine watch
program to:
(1) inform retailers of the problems associated with
the illicit manufacture and use of methamphetamine in this state;
(2) establish procedures and develop forms for
retailers and other persons to use in reporting to the department
any incidents of theft, suspicious purchases, or other transactions
involving products used in the illicit manufacture of
methamphetamine;
(3) increase community awareness of methamphetamine;
(4) encourage retailers, law enforcement, state and
local agencies, and other persons to cooperate in efforts to reduce
the diversion of legitimate products for use in the illicit
manufacture of methamphetamine; and
(5) assist local communities in addressing problems
created by the illicit manufacture and use of methamphetamine.
Sec. 468.003. GOOD FAITH REPORTING; LIMITATION ON
LIABILITY. (a) In consultation with the Department of Public
Safety and local law enforcement agencies, the department shall
establish guidelines for retailers and retail personnel to follow
in making good faith reports of thefts, suspicious purchases, or
other transactions involving products used in the illicit
manufacture of methamphetamine. The guidelines must be designed to
ensure that:
(1) reports are made to law enforcement agencies only
under circumstances that are believed to reasonably justify a
criminal investigation; and
(2) a person is not encouraged to maintain any record
of purchases that are made or other transactions that occur for
apparently legitimate purposes.
(b) The department shall involve retailers in determining
the manner in which to implement the guidelines established under
Subsection (a).
(c) A person is not liable for damages, other than economic
damages, from an act relating to the reporting of information made
in good faith and in accordance with the guidelines established
under this section.
Sec. 468.004. FALSE REPORT; PENALTY. (a) A person commits
an offense if the person knowingly makes a report or causes a report
to be made to a law enforcement agency of a theft, suspicious
purchase, or other transaction involving a product used in the
manufacture of methamphetamine and the person knows the report is
false.
(b) An offense under this section is a Class C misdemeanor.
Sec. 468.005. GRANT PROGRAM. (a) The department shall
implement a grant program for public and private organizations to
engage in initiatives designed to support the methamphetamine watch
program established under this chapter. The grant recipient may
use grant money only to pay for an activity directly related to the
purpose of an initiative described by this subsection.
(b) The department may accept gifts, grants, donations, and
other contributions for the purpose of the grant program.
SECTION 2.02. 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 submit to the director in
accordance with department rule a monthly report that includes:
(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 2.03. 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. (a) In this chapter:
(1) "Commissioner" means the commissioner of state
health services.
(2) "Council" means the State Health Services Council.
(3) "Department" means the Department of State Health
Services.
(4) "Driver's license" and "personal identification
certificate" have the meanings assigned by Chapter 521,
Transportation Code.
(5) "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 unless
pseudoephedrine is the only active ingredient.
(6) "Sale" includes a conveyance, exchange, barter, or
trade.
(b) A term that is used in this chapter but is not defined by
Subsection (a) has the meaning assigned by Section 481.002.
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 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.
Sec. 486.004. STATEWIDE UNIFORMITY. (a) To ensure uniform
and equitable implementation and enforcement throughout this
state, this chapter constitutes the whole field of regulation
regarding over-the-counter sales of products that contain
pseudoephedrine.
(b) This chapter preempts and supersedes a local ordinance,
rule, or regulation adopted by a political subdivision of this
state pertaining to over-the-counter sales of products that contain
pseudoephedrine.
[Sections 486.005-486.010 reserved for expansion]
SUBCHAPTER B. SALES OF PSEUDOEPHEDRINE
Sec. 486.011. SALES OF SINGLE-ENTITY PRODUCTS. A business
establishment that engages in over-the-counter sales of products
that contain pseudoephedrine as the only active ingredient shall
display the pseudoephedrine behind a counter, in a locked case, or
in a location accessible to a patron of the establishment only with
the assistance of an employee of the establishment.
Sec. 486.012. SALES OF PRODUCTS WITH ADDITIONAL ACTIVE
INGREDIENTS. A business establishment that engages in
over–the–counter sales of products that contain pseudoephedrine
combined with at least one other active ingredient shall:
(1) display those products behind a counter, in a
locked case, or in a location accessible to a patron of the
establishment only with the assistance of an employee of the
establishment;
(2) establish procedures to ensure that before
completing a sale of any of those products, the establishment:
(A) requires a person purchasing the product to
display a driver's license, personal identification certificate,
or another form of identification containing the person's
photograph and to sign for the product; and
(B) makes a record of the sale, including the
name of the person purchasing the product, the number of the
person's driver's license, personal identification certificate, or
other form of identification, and the date of purchase in a log
designated for that purpose; or
(3) adopt policies for the establishment to do at
least two of the following:
(A) maintain those products under video
surveillance in accordance with Section 486.013;
(B) maintain the products within 30 feet and in a
direct line of sight from a cash register or counter continually
staffed by at least one employee of the establishment;
(C) use shelving that restricts access so that:
(i) packages containing the products may be
removed from a shelf only one at a time; and
(ii) after a package containing any of
those products is removed from a shelf, a delay of not less than 15
seconds occurs before another package may be removed from the
shelf; or
(D) employ a reliable anti-theft device that uses
package tags and detection alarms designed to prevent theft of a
package containing any of those products.
Sec. 486.013. VIDEO SURVEILLANCE. A business establishment
that maintains products containing pseudoephedrine under video
surveillance shall:
(1) provide written notice to patrons, in conspicuous
locations proximate to the products, that the patrons are under
video surveillance;
(2) use equipment designed to ensure that a one-second
video image is continually recorded not less frequently than every
10 seconds;
(3) place the video recorder in a secure strategic
location to ensure that a person examining the products or removing
a package containing the products from the shelves clearly appears
in the video images;
(4) make the recorded video images available to the
department, a peace officer, or a law enforcement agency
immediately on request; and
(5) preserve the recorded video images for not less
than 72 hours.
Sec. 486.014. REQUIRED PERSONNEL TRAINING. (a) A business
establishment that engages in over-the-counter sales of products
containing pseudoephedrine shall provide personnel training about
the use of those products in the illicit manufacture of
methamphetamine. The training may be conducted by an individual
instructor or by a computer-based program.
(b) An establishment that provides training under
Subsection (a) shall require each employee who handles sales of
products containing pseudoephedrine to submit to the
establishment, not later than 30 days after the date on which the
employee begins to handle sales of the products, a form signed by
the employee stating that the employee:
(1) understands that products containing
pseudoephedrine may be used in the illicit manufacture of
methamphetamine and that methamphetamine may cause harm to
individuals, families, and communities;
(2) is aware that state law regulates the sale of the
products;
(3) is familiar with the employee's responsibilities
in connection with enforcement of state laws regulating the sale of
the products; and
(4) has completed a training program provided by the
establishment regarding the matters described by Subdivisions
(1)–(3).
(c) On receipt of a form submitted under Subsection (b), the
establishment shall date the form and shall maintain the form
during the employee's term of employment and for a period of not
less than 30 days after completion of employment. The
establishment shall make the form available to the department, a
peace officer, or a law enforcement agency on request.
[Sections 486.015-486.020 reserved for expansion]
SUBCHAPTER C. ADMINISTRATIVE PENALTY
Sec. 486.021. IMPOSITION OF PENALTY. The department may
impose an administrative penalty on a person who violates 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
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. 486.023. 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;
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
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. 486.027. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
Before the 31st day after the date the order 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 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 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) Following receipt of a copy of an affidavit under
Subsection (a)(2), the commissioner may file with the court, before
the sixth day after the date of receipt, 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
owed.
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
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. 486.032. 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.
ARTICLE 3. TRANSITION LANGUAGE AND EFFECTIVE DATE
SECTION 3.01. 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.
SECTION 3.02. Subsection (b), Section 481.124, Health and
Safety Code, as amended by this Act, applies 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.
SECTION 3.03. (a) The Department of State Health Services
shall take all action necessary to establish the methamphetamine
watch program as required by Chapter 468, Health and Safety Code, as
added by this Act, not later than September 1, 2005.
(b) Section 468.003, Health and Safety Code, as added by
this Act, applies only to a cause of action that accrues on or after
the effective date of this Act. An action that accrued before the
effective date of this Act is governed by the law applicable to the
action immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
(c) Section 468.003, Health and Safety Code, as added by
this Act, is an exercise of authority under Subsection (c), Section
66, Article III, Texas Constitution, and takes effect only if this
Act receives a vote of three-fifths of all the members elected to
each house, as provided by Subsection (e), Section 66 of that
article.
(d) The Department of State Health Services shall take all
action necessary to begin implementation of the grant program
required under Section 468.005, Health and Safety Code, as added by
this Act, not later than September 1, 2005.
SECTION 3.04. 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 3.05. 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 September 1, 2005.
SECTION 3.06. 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.
* * * * *