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A BILL TO BE ENTITLED
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AN ACT
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relating to registration and regulation of metal recycling |
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entities; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Chapter 1956, Occupations Code, |
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is amended to read as follows: |
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CHAPTER 1956. [SALES TO METAL DEALERS AND] |
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METAL RECYCLING ENTITIES |
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SECTION 2. Chapter 1956, Occupations Code, is amended by |
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amending Subchapter A and adding Subchapters A-1, A-2, and A-3 to |
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read as follows: |
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SUBCHAPTER A. GENERAL PROVISIONS [SALE OF ALUMINUM, BRONZE, OR
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COPPER OR BRASS MATERIAL TO SECONDHAND METAL DEALERS] |
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Sec. 1956.001. DEFINITIONS. In this chapter [subchapter]: |
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(1) "Aluminum material" means a product made from |
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aluminum, an aluminum alloy, or an aluminum by-product. The term |
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includes aluminum wiring and an aluminum beer keg but does not |
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include another type of aluminum can used to contain a food or |
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beverage. |
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(2) "Bronze material" means: |
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(A) a cemetery vase, receptacle, or memorial made |
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from bronze; |
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(B) bronze statuary; or |
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(C) material readily identifiable as bronze, |
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including bronze wiring. |
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(3) "Commission" means the Public Safety Commission. |
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(4) "Copper or brass material" means: |
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(A) insulated or noninsulated copper wire or |
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cable of the type used by a public utility or common carrier that |
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consists of at least 50 percent copper; [or] |
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(B) a copper or brass item of a type commonly used |
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in construction or by a public utility; or |
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(C) copper pipe or copper tubing. |
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(5) [(4)] "Department" means the Texas Department of |
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Public Safety. |
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(6) "Director" means the public safety director. |
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(7) "Metal recycling entity" means a business that is |
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operated from a fixed location and is predominantly engaged in: |
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(A) performing the manufacturing process by |
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which scrap, used, or obsolete ferrous or nonferrous metal is |
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converted into raw material products consisting of prepared grades |
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and having an existing or potential economic value, by a method that |
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in part requires the use of powered tools and equipment, including |
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processes that involve processing, sorting, cutting, classifying, |
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cleaning, baling, wrapping, shredding, shearing, or changing the |
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physical form of that metal; |
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(B) the use of raw material products described |
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under Paragraph (A) in the manufacture of producer or consumer |
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goods; or |
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(C) purchasing or otherwise acquiring scrap, |
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used, or obsolete ferrous or nonferrous metals for the eventual use |
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of the metal for the purposes described by Paragraph (A) or (B). |
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(8) [(5)] "Personal identification document" means: |
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(A) a driver's license; |
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(B) a military identification card; |
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(C) a passport issued by the United States or by |
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another country and recognized by the United States; or |
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(D) a personal identification certificate issued |
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by the department under Section 521.101, Transportation Code, or a |
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corresponding card or certificate issued by another state. |
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(9) [(6)] "Regulated material" means: |
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(A) aluminum material; |
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(B) bronze material; [or] |
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(C) copper or brass material; or |
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(D) regulated metal. |
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(10) "Regulated metal" means metal items regulated |
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under this chapter in accordance with department rules, including: |
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(A) manhole covers; |
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(B) guardrails; |
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(C) compressed cylinders; |
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(D) beer kegs made from metal other than |
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aluminum; |
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(E) historical markers or cemetery vases, |
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receptacles, or memorials made from metal other than aluminum; |
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(F) unused rebar; |
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(G) street signs; |
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(H) drain gates; |
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(I) safes; |
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(J) communication, transmission, and service |
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wire or cable; |
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(K) condensing or evaporator coils for heating or |
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air conditioning units; |
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(L) electric light poles, including the fixtures |
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and hardware; |
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(M) aluminum or stainless steel containers |
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designed to hold propane for fueling forklifts; and |
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(N) metal railroad equipment, including tie |
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plates, signal houses, control boxes, signs, signals, traffic |
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devices, traffic control devices, traffic control signals, switch |
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plates, e-clips, and rail tie functions |
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[(7) "Secondhand metal dealer" means:
|
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[(A)
an auto wrecker, a scrap metal processor, or
|
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another person or organization that purchases, collects, or
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solicits regulated material; or
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[(B)
a person who operates or maintains a scrap
|
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metal yard or other place in which scrap metal or cast-off regulated
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material is collected or kept for shipment, sale, or transfer]. |
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Sec. 1956.002. EXCEPTION. This chapter [subchapter] does |
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not apply to: |
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(1) a purchase of regulated material from a |
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manufacturing, industrial, [or other] commercial, retail, or other |
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seller [vendor] that sells regulated material in the ordinary |
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course of the seller's [vendor's] business; or |
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(2) a purchase of regulated material by a manufacturer |
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whose primary business is the manufacture of iron and steel |
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products made from melting scrap iron and scrap steel. |
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Sec. 1956.003. LOCAL LAW. (a) A county, municipality, or |
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political subdivision of this state may adopt a rule, charter, or |
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ordinance or issue an order or impose standards that are more |
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stringent than but do not conflict with this chapter or rules |
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adopted under this chapter. |
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(b) A county, municipality, or political subdivision of |
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this state may issue a license or permit to a business to allow the |
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business to act as a metal recycling entity in that county or |
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municipality and may impose a fee not to exceed $250 for the |
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issuance or renewal of the license or permit. |
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(c) A county, municipality, or political subdivision of |
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this state that issues a license or permit to a business as |
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authorized under Subsection (b) shall submit to the department in |
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the manner required by the department information on each business |
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that is issued a license or permit. |
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[Sections 1956.004-1956.010 reserved for expansion] |
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SUBCHAPTER A-1. POWERS AND DUTIES |
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Sec. 1956.011. ADMINISTRATION OF CHAPTER. The department |
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shall administer this chapter. |
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Sec. 1956.012. DEPARTMENT STAFF. The department may employ |
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administrative and clerical staff as necessary to carry out this |
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chapter. |
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Sec. 1956.013. RULES. The commission may adopt rules to |
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administer this chapter, including rules: |
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(1) establishing minimum requirements for |
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registration under this chapter; and |
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(2) adopting forms required by this chapter. |
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Sec. 1956.014. FEES. The commission by rule shall |
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prescribe fees in reasonable amounts sufficient to cover the costs |
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of administering this chapter, including fees for: |
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(1) an initial application for a certificate of |
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registration; |
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(2) issuance of a certificate of registration; |
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(3) issuance of a renewal certificate of registration; |
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and |
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(4) issuance of a duplicate certificate of |
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registration or duplicate renewal certificate of registration. |
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Sec. 1956.015. STATEWIDE ELECTRONIC REPORTING SYSTEM. |
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(a) The department shall establish a statewide electronic |
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reporting system to track the sales of regulated metal reported to |
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the department under Section 1956.036. |
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(b) The department shall post a summary of the reports |
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provided to the department under Section 1956.036 on the |
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department's Internet website. The summary must include by county |
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or region the frequency with which a person presents regulated |
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materials for sale to a metal recycling entity. The summary may not |
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identify any person to which the metal recycling entity sells the |
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regulated materials. |
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(c) Subsection (b) does not apply to regulated material sold |
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by a utility company, municipality, manufacturer, railroad, |
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cemetery, cable or satellite entity, or other business entity that |
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routinely has access to regulated metal. |
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(d) The department shall maintain the confidentiality of |
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information provided under this section that relates to the |
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financial condition or business affairs of a metal recycling entity |
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or that is otherwise commercially sensitive. The confidential |
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information is not subject to disclosure under Chapter 552, |
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Government Code. |
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[Sections 1956.016-1956.020 reserved for expansion] |
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SUBCHAPTER A-2. CERTIFICATE OF REGISTRATION |
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Sec. 1956.021. REGISTRATION REQUIRED. A person may not act |
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as a metal recycling entity or represent to the public that the |
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person is a metal recycling entity unless the person is registered |
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under this chapter. |
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Sec. 1956.022. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. |
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(a) The department shall issue a certificate of registration to an |
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applicant who: |
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(1) applies and pays a registration fee; and |
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(2) presents any relevant evidence relating to the |
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applicant's qualifications as required by commission rule. |
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(b) The commission by rule may establish qualifications for |
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the holder of a certificate of registration under this chapter, |
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which may include accepting copies of a license or permit issued by |
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a county or municipality authorizing a metal recycling entity to |
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conduct business in that county or municipality. |
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Sec. 1956.023. TERM OF CERTIFICATE. (a) A certificate of |
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registration is valid for two years after the date of issuance. |
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(b) The department shall adopt a system under which |
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certificates of registration expire and are renewed on various |
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dates. |
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(c) Not later than the 45th day before the date a person's |
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certificate of registration is scheduled to expire, the department |
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shall send written notice of the impending expiration to the person |
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at the person's last known address according to the records of the |
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department. |
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(d) A person whose certificate of registration has expired |
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may not make a representation for which a certificate of |
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registration is required under Section 1956.021 or perform |
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collections services until the certificate has been renewed. |
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Sec. 1956.024. RENEWAL OF CERTIFICATE. (a) To renew a |
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certificate of registration, a person must submit an application |
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for renewal in the manner prescribed by the department. |
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(b) A person who is otherwise eligible to renew a |
|
certificate of registration may renew an unexpired certificate by |
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paying the required renewal fee to the department before the |
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expiration date of the certificate. |
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(c) A person whose certificate of registration has been |
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expired for 90 days or less may renew the certificate by paying to |
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the department a renewal fee that is equal to 1-1/2 times the |
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normally required renewal fee. |
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(d) A person whose certificate of registration has been |
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expired for more than 90 days but less than one year may renew the |
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certificate by paying to the department a renewal fee that is equal |
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to two times the normally required renewal fee. |
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(e) A person whose certificate of registration has been |
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expired for one year or more may not renew the certificate. The |
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person may obtain a new certificate of registration by complying |
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with the requirements and procedures, including the examination |
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requirements, for an original certificate. |
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[Sections 1956.025-1956.030 reserved for expansion] |
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SUBCHAPTER A-3. PRACTICE BY CERTIFICATE HOLDERS |
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Sec. 1956.031 [1956.003]. NOTICE TO SELLERS. (a) A metal |
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recycling entity [secondhand metal dealer] shall at all times |
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maintain in a prominent place in the entity's [dealer's] place of |
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business, in open view to a seller of regulated material, a notice |
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in two-inch lettering that: |
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(1) includes the following language: |
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"A PERSON ATTEMPTING TO SELL ANY REGULATED MATERIAL MUST |
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PRESENT SUFFICIENT IDENTIFICATION AND WRITTEN PROOF OF OWNERSHIP |
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REQUIRED BY STATE LAW." |
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"WARNING: STATE LAW PROVIDES A CRIMINAL PENALTY FOR A PERSON |
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WHO INTENTIONALLY PROVIDES A FALSE DOCUMENT OF IDENTIFICATION OR |
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OTHER FALSE INFORMATION TO A METAL RECYCLING ENTITY [SECONDHAND
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METAL DEALER] WHILE ATTEMPTING TO SELL ANY REGULATED MATERIAL."; |
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and |
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(2) states the metal recycling entity's [secondhand
|
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metal dealer's] usual business hours. |
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(b) The notice required by this section may be contained on |
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a sign that contains another notice if the metal recycling entity |
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[secondhand metal dealer] is required to display another notice |
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under applicable law. |
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Sec. 1956.032 [1956.004]. INFORMATION PROVIDED BY SELLER. |
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(a) A person attempting to sell regulated material to a metal |
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recycling entity [secondhand metal dealer] shall: |
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(1) display to the metal recycling entity [secondhand
|
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metal dealer] the person's personal identification document [or
|
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sign a statement that the person does not possess such a document]; |
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and |
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(2) either: |
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(A) present written documentation evidencing |
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that the person is the legal owner or is lawfully entitled to sell |
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the regulated material; or |
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(B) sign a written statement provided by the |
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metal recycling entity [secondhand metal dealer] that the person is |
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the legal owner of or is lawfully entitled to sell the regulated |
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material offered for sale. |
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(b) A person required by a municipality to prepare a signed |
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statement consisting of the information required by Subsection |
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(a)(2) [(a)(1) or (2)] may use the statement required by the |
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municipality to comply with Subsection (a)(2) [(a)(1) or (2)]. |
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(c) The metal recycling entity [secondhand metal dealer] or |
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the entity's [dealer's] agent shall visually verify the accuracy of |
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the identification presented by the seller at the time of the |
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purchase of regulated material and retain a copy of the |
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identification in the entity's records. |
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Sec. 1956.033 [1956.005]. RECORD OF PURCHASE. (a) Each |
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metal recycling entity [A secondhand metal dealer] in this state |
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shall keep an accurate electronic record or an accurate and legible |
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written record of each purchase made in the course of the entity's |
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[dealer's] business from an individual of: |
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(1) copper or brass material [in excess of 50 pounds]; |
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(2) bronze material; [or] |
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(3) aluminum material; or |
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(4) regulated metal [in excess of 40 pounds]. |
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(b) The record must be in English and include: |
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(1) the place and date of the purchase; |
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(2) the name and address of each individual from whom |
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the regulated material is purchased or obtained; |
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(3) the identifying number of the seller's personal |
|
identification document; |
|
(4) a description made in accordance with the custom |
|
of the trade of the type and quantity of regulated material |
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purchased; and |
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(5) the statement required by Section 1956.032(a)(2) |
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[1956.004(a)(2)]. |
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Sec. 1956.034 [1956.006]. PRESERVATION OF RECORDS. A metal |
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recycling entity [secondhand metal dealer] shall preserve each |
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record required by Section 1956.033 [1956.005] until the third |
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anniversary of the date the record was made. |
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Sec. 1956.035 [1956.007]. INSPECTION OF RECORDS BY PEACE |
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OFFICER. (a) On request, a metal recycling entity [secondhand
|
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metal dealer] shall permit a peace officer of this state to inspect, |
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during the entity's [dealer's] usual business hours: |
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(1) a record required by Section 1956.033 [1956.005]; |
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or |
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(2) regulated material in the entity's [dealer's] |
|
possession. |
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(b) The inspecting officer shall inform the entity [dealer] |
|
of the officer's status as a peace officer. |
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Sec. 1956.036 [1956.008]. FURNISHING OF REPORT TO |
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DEPARTMENT. (a) Except as provided by Subsection (b), not later |
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than the seventh day after the date of the purchase or other |
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acquisition of material for which a record is required under |
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Section 1956.033 [1956.005], a metal recycling entity [secondhand
|
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metal dealer] shall mail to or file with the department a report |
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containing the information required to be recorded under that |
|
section. |
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(b) If a metal recycling entity [secondhand metal dealer] |
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purchases bronze material that is a cemetery vase, receptacle, |
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memorial, or statuary or a pipe that can reasonably be identified as |
|
aluminum irrigation pipe, the entity [dealer] shall: |
|
(1) not later than the close of business on the |
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entity's [dealer's] first working day after the purchase date, |
|
[orally] notify the department; and |
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(2) not later than the fifth day after the purchase |
|
date, mail to or file with the department a report containing the |
|
information required to be recorded under Section 1956.033 |
|
[1956.005]. |
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(c) Subsection (b) does not apply to a purchase from: |
|
(1) the manufacturer or fabricator of the material or |
|
pipe; |
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(2) a seller bearing a bill of sale for the material or |
|
pipe; or |
|
(3) the owner of the material or pipe. |
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Sec. 1956.037 [1956.009]. PLACEMENT OF ITEMS ON HOLD. |
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(a) A metal recycling entity may not dispose of, process, sell, or |
|
remove from the premises an item of regulated metal unless: |
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(1) the entity acquired the item more than 72 hours |
|
before the disposal, processing, sale, or removal; or |
|
(2) 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. |
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(b) A peace officer who has reasonable suspicion to believe |
|
that an item of regulated material in the possession of a metal |
|
recycling entity [secondhand metal dealer] is stolen may place the |
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item on hold by issuing to the entity [dealer] a written notice |
|
that: |
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(1) specifically identifies the item alleged to be |
|
stolen and subject to the hold; and |
|
(2) informs the entity [dealer] of the requirements of |
|
Subsection (c) [(b)]. |
|
(c) [(b)] On receiving the notice, the entity [dealer] may |
|
not, except as provided by Subsection (e), process or remove from |
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the entity's [dealer's] premises the identified item before the |
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60th [11th] day after the date the notice is issued unless the hold |
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is released at an earlier time in writing by a peace officer of this |
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state or a court order. |
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(d) [(c)] After the holding period expires, the entity |
|
[dealer] may dispose of the item unless disposition violates a |
|
court order. |
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(e) If a hold is placed on a purchase of regulated material, |
|
a metal recycling entity may not dispose of, process, sell, or |
|
remove from the premises any item from the purchased material |
|
unless the hold on the material is released. |
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Sec. 1956.038 [1956.010]. PROHIBITED ACTS. A person may |
|
not, with the intent to deceive: |
|
(1) display to a metal recycling entity [secondhand
|
|
metal dealer] a false or invalid personal identification document |
|
in connection with the person's attempted sale of regulated |
|
material; or |
|
(2) make a false, material statement or representation |
|
to a metal recycling entity [secondhand metal dealer] in connection |
|
with: |
|
(A) that person's execution of a written |
|
statement required by Section 1956.032(a)(2) [1956.004(a)(1) or
|
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(2)]; or |
|
(B) the entity's [dealer's] efforts to obtain the |
|
information required under Section 1956.033(b) [1956.005(b)]. |
|
Sec. 1956.039. HOURS FOR PURCHASING MATERIAL. (a) Subject |
|
to Subsection (b), a county, municipality, or political subdivision |
|
may establish the hours during which a metal recycling entity may |
|
purchase regulated material. |
|
(b) A metal recycling entity may not purchase from the |
|
general public regulated material: |
|
(1) more than 15 consecutive hours in one day; or |
|
(2) later than 9 p.m. |
|
[Sec.
1956.011.
CRIMINAL PENALTY. (a)
A person commits an
|
|
offense if the person knowingly violates this subchapter.
|
|
[(b)
Except as provided by Subsection (c), an offense under
|
|
this section is a Class B misdemeanor.
|
|
[(c)
An offense under this section is a Class A misdemeanor
|
|
if the person has been convicted of a violation of this subchapter
|
|
within the 36 months preceding the date of the offense.
|
|
[(d)
On the conviction of a secondhand metal dealer for an
|
|
offense punishable under Subsection (c), a court, in addition to
|
|
imposing any other applicable penalty, may order that the dealer
|
|
cease doing business as a secondhand metal dealer for a period not
|
|
to exceed 30 days from the date of the order for each violation that
|
|
forms the basis of the conviction.] |
|
SECTION 3. Chapter 1956, Occupations Code, is amended by |
|
adding Subchapters D and E to read as follows: |
|
SUBCHAPTER D. DISCIPLINARY PROCEDURES |
|
Sec. 1956.151. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION. |
|
The department shall 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: |
|
(1) obtains a certificate of registration by means of |
|
fraud, misrepresentation, or concealment of a material fact; |
|
(2) sells, barters, or offers to sell or barter a |
|
certificate of registration; |
|
(3) violates a rule adopted under this chapter; or |
|
(4) violates Section 1956.021. |
|
Sec. 1956.152. INVESTIGATION. Within the limits of |
|
available resources, the department may investigate: |
|
(1) a person who engages in a practice that violates |
|
this chapter; and |
|
(2) a complaint filed with the department against a |
|
person registered under this chapter. |
|
Sec. 1956.153. HEARING. (a) A person whose application |
|
for a certificate of registration is denied, whose certificate of |
|
registration is suspended or revoked, or who is reprimanded is |
|
entitled to a hearing before the department if the person submits to |
|
the department a written request for the hearing. |
|
(b) A hearing is governed by department rules for a |
|
contested hearing and by Chapter 2001, Government Code. |
|
[Sections 1956.154-1956.200 reserved for expansion] |
|
SUBCHAPTER E. OTHER PENALTIES AND ENFORCEMENT PROVISIONS |
|
Sec. 1956.201. ENFORCEMENT PROCEEDINGS; INJUNCTION. |
|
(a) The department, the attorney general, or the district, county, |
|
or city attorney for the county or municipality in which an alleged |
|
violation of this chapter occurs may, on receipt of a verified |
|
complaint, bring an appropriate administrative or judicial |
|
proceeding to enforce this chapter or a rule adopted under this |
|
chapter. |
|
(b) The attorney general or an attorney representing the |
|
state may 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) 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. |
|
(b) The amount of the penalty shall be based on: |
|
(1) the seriousness of the violation; |
|
(2) the history of previous violations; |
|
(3) the amount necessary to deter a future violation; |
|
and |
|
(4) any other matter that justice may require. |
|
(c) The attorney general may sue to collect a civil penalty |
|
under this section. In the suit the attorney general may 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. |
|
Sec. 1956.203. CRIMINAL PENALTY FOR OPERATING AS MOBILE |
|
METAL RECYCLING ENTITY. (a) A person commits an offense if the |
|
person from a non-fixed or mobile location operates as a metal |
|
recycling entity by engaging in an activity described by Section |
|
1956.001(7)(A), (B), or (C). |
|
(b) An offense under this section is a Class B misdemeanor. |
|
SECTION 4. Subdivision (1), Section 1956.101, Occupations |
|
Code, is repealed. |
|
SECTION 5. (a) Not later than January 1, 2008, the Public |
|
Safety Commission shall adopt the rules necessary to implement the |
|
changes in law made by this Act to Chapter 1956, Occupations Code. |
|
(b) Not later than April 1, 2008, the Department of Public |
|
Safety of the State of Texas shall establish the statewide |
|
reporting system to track the sales of regulated metal as required |
|
under Chapter 1956, Occupations Code, as amended by this Act. |
|
SECTION 6. Notwithstanding Section 1956.021, Occupations |
|
Code, as added by this Act, a person is not required to hold a |
|
certificate of registration as a metal recycling entity under |
|
Chapter 1956, Occupations Code, as amended by this Act, before |
|
April 1, 2008. |
|
SECTION 7. The change in law made by this Act applies only |
|
to an offense committed on or after the effective date of this Act. |
|
An offense committed before that date is governed by the law in |
|
effect when the offense was committed, and the former law is |
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continued in effect for that purpose. For purposes of this section, |
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an offense was committed before the effective date of this Act if |
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any element of the offense was committed before that date. |
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SECTION 8. This Act takes effect September 1, 2007. |
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COMMITTEE AMENDMENT NO. |
1 |
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Amend S.B. No. 642 (Senate Engrossment) as follows: |
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(1) In SECTION 2 of the bill, in proposed Subdivision (10), |
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Section 1956.001, Occupations Code (page 3, lines 15 and 16), |
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strike "metal items regulated under this chapter in accordance with |
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department rules, including". |
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(2) In SECTION 2 of the bill, strike added Paragraph (C), |
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Subdivision (10), Section 1956.001, Occupations Code (page 3, line |
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19), and substitute the following: |
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(C) metal cylinders designed to contain |
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compressed air, oxygen, gases, or liquids; |
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(3) In SECTION 2 of the bill, strike added Paragraph (L), |
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Subdivision (10), Section 1956.001, Occupations Code (page 4, lines |
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5-6), and substitute the following: |
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(L) utility structures, including the fixtures |
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and hardware; |
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(4) In SECTION 2 of the bill, at the end of amended |
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Subdivision (1), Section 1956.002, Occupations Code (page 4, line |
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25), strike "or". |
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(5) In SECTION 2 of the bill, in amended Subdivision (2), |
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Section 1956.002, Occupations Code (page 5, line 1), strike "steel" |
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and substitute the following: |
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steel; or |
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(3) the transport or hauling of recyclable materials |
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to or from the metal recycling entity |
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(6) In SECTION 2 of the bill, in amended Subsection (a), |
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Section 1956.036, Occupations Code (page 12, line 7), between |
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"shall" and "mail", insert "send by facsimile or electronic". |
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(7) In SECTION 2 of the bill, in amended Subsection (a), |
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Section 1956.037, Occupations Code (page 13, line 3), following "72 |
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hours", insert ", excluding weekends and holidays,". |
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(8) In SECTION 3 of the bill, strike proposed Subsection |
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(a), Section 1956.203, Occupations Code (page 17, lines 13 through |
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16), and substitute the following: |
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(a) A person commits an offense if the person solicits the |
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purchase of regulated material at a location other than a business |
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location at which the material is produced as a by-product in the |
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ordinary course of that business. |
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80R19422 YDB-DDarby |