BILL ANALYSIS
Senate Research Center S.B. 1154
By: Carona
Transportation & Homeland Security
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
Texas, along with most states nationwide, is experiencing an increase in thefts of metals, such as copper, bronze, and brass. Copper in particular has become a prime target for thieves largely because the price of copper has increased significantly in the last year. Losses from copper theft include not only the value of the stolen copper, but also losses resulting from damage done during the process of extracting copper from property and equipment.
Several states are exploring ways to bring the problem under control. Texas provides for penalties for the offenses of theft and criminal mischief and the penalties can escalate to second and third degree felonies depending on the value of the property stolen or equipment or property damaged, but those penalties have not been sufficient to stem the tide of this type of crime.
The perpetrators of such crime often turn to secondhand dealers to sell the stolen metals. Chapter 1956 (Sales To Metal Dealers And Metal Recycling Entities), Occupations Code, provides requirements for purchases of secondhand metals by metal dealers and recycling entities that are intended to curtail sales of stolen metals. However, there are few records kept relating to the sale of secondhand metal, and the punishment for selling stolen metal is a Class B misdemeanor. These laws should be revamped in order to make it harder to sell the material.
S.B. 1154 requires additional information to be obtained from a seller of metals and maintained by the purchaser of the metals. This bill also increases the penalties for offenses created under the subchapter.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the Public Safety Commission in SECTION 2 (Sections 1956.013, 1956.014, and 1956.022, Occupations Code) and SECTION 6 of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the heading to Chapter 1956, Occupations Code as follows:
CHAPTER 1956. METAL RECYCLING ENTITIES
SECTION 2. Amends Chapter 1956, Occupations Code, by amending Subchapter A and adding Subchapters A-1, A-2, and A-3, as follows:
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1956.001. DEFINITIONS. Defines “commission,” “director,” “metal recycling entity” (recycling entity) and “regulated metal.” Redefines “aluminum material,” “bronze material,” “copper or brass material,” “personal identification document,” and “regulated material.” Applies said definitions to this entire chapter, rather than only this subchapter. Deletes existing text defining “secondhand metal dealer.”
Sec. 1956.002. EXCEPTION. Sets forth the actions to which this chapter does not apply. Makes conforming and nonsubstantive changes.
Sec. 1956.003. LOCAL LAW. (a) Authorizes a county, municipality, or political subdivision of this state to adopt a rule, charter, or ordinance or issue an order or impose standards that are more stringent than but do not conflict with this chapter or rules adopted under this chapter.
(b) Authorizes a county, municipality, or political subdivision of this state to issue a license or permit to a business to allow the business to act as a recycling entity in that county or municipality and to impose a fee not to exceed $250 for the issuance or renewal of the license or permit.
(b-1) Prohibits a municipality or political subdivision of this state, other than a county, from increasing the local license or permit fee imposed on a metal recycling facility to an amount that exceeds 25 percent of the fee charged by the municipality or political subdivision on January 1, 2007. Provides that this subsection expires January 1, 2010.
(c) Requires a county, municipality, or political subdivision of this state that issues a license or permit to a business as authorized under Subsection (b) to submit to the Department of Public Safety (DPS) in the manner required by DPS information on each business that is issued a license or permit.
(d) Prohibits a municipality or political subdivision of this state, other than a county, from increasing the local license or permit fee imposed on a metal recycling facility unless the increase is approved by the local governing body. Requires a request for an increase in the local license or permit fee to be based on the costs associated with law enforcement and administration of the licensing or permitting program. Requires the municipality or political subdivision to submit a report to DPS on the law enforcement and administrative costs associated with the fee increase.
(e) Authorizes a county to increase the local license or permit fee imposed on a metal recycling facility one additional time before the second anniversary of the date of the initial fee increase. Requires the increase to be based on the average cost charged by municipalities statewide.
[Reserves Sections 1956.004-1956.010 for expansion.]
SUBCHAPTER A-1. POWERS AND DUTIES
Sec. 1956.011. ADMINISTRATION OF CHAPTER. Requires DPS to administer this chapter.
Sec. 1956.012. DEPARTMENT STAFF. Authorizes DPS to employ administrative and clerical staff as necessary to carry out this chapter.
Sec. 1956.013. RULES. Authorizes the Public Safety Commission (commission) to adopt rules to administer this chapter, including certain rules relating to minimum requirements and forms.
Sec. 1956.014. FEES; REPORTS. (a) Requires the commission by rule to prescribe fees in reasonable amounts sufficient to cover the costs of administering this chapter, including certain fees set forth in this subsection.
(b) Prohibits the commission from imposing a fee for issuance of a certificate of registration that exceeds $250 annually. Requires DPS to report annually to the legislature, not later than December 1, any costs associated with administering this chapter that are not covered by the fees assessed under this chapter.
(c) Requires DPS to submit annually to both houses of the legislature a report on the number of metal recycling entities who have complied with the registration requirements under this chapter and the total number of metal recycling entities identified statewide. Requires the report to include the information on metal recycling entities submitted to DPS by municipalities, counties, and other political subdivisions of this state.
(d) Requires DPS to submit to both houses of the legislature a report on the actual costs incurred by the department in administering this chapter not later than March 1, 2008. Provides that this subsection expires January 1, 2009.
Sec. 1956.015. STATEWIDE ELECTRONIC REPORTING SYSTEM. (a) Requires DPS to establish a statewide electronic reporting system to track the sales of regulated metal reported to DPS under Section 1956.036.
(b) Requires DPS to post a summary of the reports provided to DPS under Section 1956.036 on its Internet website. Requires the summary to include by county or region the frequency with which a person presents regulated materials for sale to a recycling entity. Prohibits the summary from identifying any person to which the recycling entity sells the regulated materials.
(c) Provides that Subsection (b) does not apply to regulated material sold by a utility company, municipality, manufacturer, railroad, cemetery, cable or satellite entity, or other business entity that routinely has access to regulated metal.
(d) Requires DPS to maintain the confidentiality of information provided under this section that relates to the financial condition or business affairs of a recycling entity or that is otherwise commercially sensitive. Provides that the confidential information is not subject to disclosure under Chapter 552 (Public Information), Government Code.
[Reserves Sections 1956.016-1956.020 for expansion]
SUBCHAPTER A-2. CERTIFICATE OF REGISTRATION
Sec. 1956.021. REGISTRATION REQUIRED. Prohibits a person from acting as a recycling entity or representing to the public that the person is a recycling entity unless the person is registered under this chapter.
Sec. 1956.022. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. (a) Requires DPS to issue a certificate of registration (certificate) to an applicant who applies and pays a registration fee and presents any relevant evidence relating to the applicant's qualifications as required by commission rule.
(b) Authorizes the commission by rule to establish qualifications for the certificate holder under this chapter, which may include accepting copies of a license or permit issued by a county or municipality authorizing a recycling entity to conduct business in that county or municipality.
Sec. 1956.023. TERM OF CERTIFICATE. (a) Provides that a certificate is valid for two years after the date of issuance.
(b) Requires DPS to adopt a system under which certificates expire and are renewed on various dates.
(c) Requires DPS, not later than the 45th day before the date a person's certificate is scheduled to expire, to send written notice of the impending expiration to the person at the person's last known address according to DPS records.
(d) Prohibits a person whose certificate has expired from making a representation for which a certificate is required under Section 1956.021 or performing collections services until the certificate has been renewed.
Sec. 1956.024. RENEWAL OF CERTIFICATE. (a) Requires a person to submit an application for renewal in the manner prescribed by DPS to renew a certificate.
(b) Authorizes a person who is otherwise eligible to renew a certificate to renew an unexpired certificate by paying the required renewal fee to DPS before the certificate’s expiration date.
(c) Authorizes a person whose certificate has been expired for 90 days or less to renew the certificate by paying to DPS a renewal fee that is equal to 1-1/2 times the normally required renewal fee.
(d) Authorizes a person whose certificate has been expired for more than 90 days but less than one year to renew the certificate by paying to DPS a renewal fee that is equal to two times the normally required renewal fee.
(e) Prohibits a person whose certificate has been expired for one year or more from renewing the certificate. Requires the person to obtain a new certificate by complying with the requirements and procedures, including the examination requirements, for an original certificate.
[Reserves Sections 1956.025-1956.030 for expansion]
SUBCHAPTER A-3. PRACTICE BY CERTIFICATE HOLDERS
Sec. 1956.031. NOTICE TO SELLERS. Redesignated from Section 1956.003. Makes conforming changes.
Sec. 1956.032. INFORMATION PROVIDED BY SELLER. (a) Redesignated from Section 1956.004. Requires a person attempting to sell regulated material to a recycling entity to take certain actions set forth in this subsection, except as provided by Subsection (f).
(b) Makes conforming changes.
(c) Requires the recycling entity or the entity's agent to make a copy of the identification to be maintained by the entity in the entity's records, except as otherwise provided by Subsection (f). Makes conforming changes.
(d) Authorizes the recycling entity or the entity's agent for recordkeeping purposes to photograph the seller's entire face, not including any hat, and obtain the name of the seller's employer.
(e) Authorizes the recycling entity or the entity's agent for recordkeeping purposes to take a photograph of the motor vehicle of the seller in which the make, model, and license plate number of the motor vehicle are identifiable in lieu of the information required under Subsection (a)(3) (documentation that the person is lawfully entitled to sell the regulated material).
(f) Provides that the recycling entity is not required to make a copy of the identification as required under Subsection (c) or collect the information required under Subsection (a)(3) if certain conditions are met.
Sec. 1956.033. RECORD OF PURCHASE. Redesignated from Section 1956.005. Makes conforming changes.
Sec. 1956.034. PRESERVATION OF RECORDS. Redesignated from Section 1956.006. Makes conforming changes.
Sec. 1956.035. INSPECTION OF RECORDS BY PEACE OFFICER. Redesignated from Section 1956.007. Makes conforming changes.
Sec. 1956.036. FURNISHING OF REPORT TO DEPARTMENT. Redesignated from Section 1956.008. Makes conforming changes.
Sec. 1956.037. PLACEMENT OF ITEMS ON HOLD. (a) Redesignated from Section 1956.009. Prohibits a recycling entity from disposing of, processing, selling, or removing from the premises an item of regulated metal unless the entity acquired the item more than 72 hours, excluding weekends and holidays, before the disposal, processing, sale, or removal or the entity purchased the item from a manufacturing, industrial, commercial, retail, or other seller that sells regulated material in the ordinary course of its business.
(b) Redesignated from Subsection (a). Makes conforming changes.
(c) Redesignated from Subsection (b). Prohibits the entity, on receiving the notice, from processing or removing from the entity's premises the identified item before the 60th day, rather than 11th day, after the date the notice is issued unless the hold is released at an earlier time in writing by a peace officer of this state or a court order, except as provided by Subsection (e). Makes conforming changes.
(d) Redesignated from Subsection (c). Makes conforming changes.
(e) Prohibits a recycling entity, if a hold is placed on a purchase of regulated material, from disposing of, processing, selling, or removing from the premises any item from the purchased material unless the hold on the material is released.
Sec. 1956.038. PROHIBITED ACTS. Redesignated from Section 1956.010. Prohibits a person from displaying or providing to a recycling entity, with the intent to deceive, any information required under Section 1956.032 that the person knows is false or invalid.
Sec. 1956.039. HOURS FOR PURCHASING MATERIAL. (a) Authorizes a county, municipality, or political subdivision to establish the hours during which a recycling entity may purchase regulated material, subject to Subsection (b).
(b) Prohibits a recycling entity from purchasing from the general public regulated material more than 15 consecutive hours in one day or later than 9 p.m.
Sec. 1956.040. CRIMINAL PENALTY. (a) Redesignated from Section 1956.011. Provides that a person commits a Class A, rather than Class B, misdemeanor offense if the person knowingly violates Section 1956.038 unless it is shown on trial of the offense that the person has previously been convicted of a violation of this subchapter, in which event the offense is a state jail felony. Deletes existing text providing for the level of offense. Makes conforming changes.
(b) Provides that a person commits a Class A misdemeanor offense if the person knowingly buys stolen regulated material unless it is shown on trial of the offense that the person has previously been convicted under this subsection, in which event the offense is a state jail felony.
(c) Provides that a person commits a state jail felony offense if the person knowingly sells stolen regulated material unless it is shown on trial of the offense that the person has previously been convicted under this subsection, in which event the offense is a third degree felony.
(d) Authorizes a court, on the conviction of a recycling entity for an offense punishable under Subsection (b), in addition to imposing any other applicable penalty, to order that the entity cease doing business as a recycling entity for a period not to exceed 180 days from the date of the order for each violation that forms the basis of the conviction if it is shown on trial of the offense that the person has previously been convicted under this section. Makes conforming changes.
(e) Provides that if conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.
SECTION 3. Amends the heading to Subchapter C, Chapter 1956, Occupations Code, to read as follows:
SUBCHAPTER C. RESTRICTIONS ON SALE OF CERTAIN ITEMS
TO METAL RECYCLING ENTITIES
SECTION 4. Amends Chapter 1956, Occupations Code, by adding Subchapters D and E, as follows:
SUBCHAPTER D. DISCIPLINARY PROCEDURES
Sec. 1956.151. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION. Requires DPS to deny an application for a certificate of registration, suspend or revoke a certificate of registration, or reprimand a person who is registered under this chapter if the person takes certain actions set forth in this subsection.
Sec. 1956.152. INVESTIGATION. Authorizes DPS to investigate a person who engages in a practice that violates this chapter and a complaint filed with DPS against a person registered under this chapter, within the limits of available resources.
Sec. 1956.153. HEARING. (a) Entitles a person whose application for a certificate of registration is denied, whose certificate of registration is suspended or revoked, or who is reprimanded to a hearing before DPS if the person submits to DPS a written request for the hearing.
(b) Provides that a hearing is governed by DPS rules for a contested hearing and by Chapter 2001 (Administrative Procedure), Government Code.
[Reserves Sections 1956.154-1956.200 for expansion.]
SUBCHAPTER E. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1956.201. ENFORCEMENT PROCEEDINGS; INJUNCTION. (a) Authorizes DPS, the attorney general, or the district, county, or city attorney for the county or municipality in which an alleged violation of this chapter occurs, on receipt of a verified complaint, to bring an appropriate administrative or judicial proceeding to enforce this chapter or a rule adopted under this chapter.
(b) Authorizes the attorney general or an attorney representing the state to initiate an action for an injunction to prohibit a person from violating this chapter or a rule adopted under this chapter.
Sec. 1956.202. CIVIL PENALTY. (a) Provides that a person who violates this chapter or a rule adopted under this chapter is liable to this state for a civil penalty of not more than $1,000 for each violation, except as provided by Subsection (d).
(b) Requires the amount of the penalty to be based on certain factors set forth in this subsection.
(c) Authorizes the attorney general to sue to collect a civil penalty under this section and, in the suit, to recover, on behalf of the state, the reasonable expenses incurred in obtaining the penalty, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses.
(d) Prohibits a civil penalty from being assessed under this section for conduct described by Section 1956.038.
Sec. 1956.203. CRIMINAL PENALTY FOR CERTAIN SOLICITATION. Provides that a person commits a Class B misdemeanor offense if the person solicits the purchase of regulated material at a location other than a business location at which the material is produced as a by-product in the ordinary course of that business.
SECTION 5. Repealer: Section 1956.101(1) (definition of “aluminum material”), Occupations Code.
SECTION 6. (a) Requires the commission to adopt the rules necessary to implement the changes in law made by this Act to Chapter 1956, Occupations Code, not later than January 1, 2008.
(b) Requires DPS to establish the statewide reporting system to track the sales of regulated metal as required under Chapter 1956, Occupations Code, as amended by this Act, not later than April 1, 2008.
SECTION 7. Provides that a person is not required to hold a certificate of registration as a recycling entity under Chapter 1956, Occupations Code, as amended by this Act, before April 1, 2008, notwithstanding Section 1956.021, Occupations Code, as added by this Act.
SECTION 8. Makes application of this Act prospective.
SECTION 9. Effective date: September 1, 2007.