81R5216 JAM-F

By: Driver H.B. No. 4454

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of metal recycling entities; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1956.001, Occupations Code, is amended by adding Subdivision (7-a) and amending Subdivisions (9) and (10) to read as follows:

(7-a) "Nickel alloy material" means any nonferrous metal alloy whose main constituent is nickel, including bars, pipe, rods, tubing, and wire.

(9) "Regulated material" means:

(A) aluminum material;

(B) bronze material;

(C) copper or brass material; [or]

(D) nickel alloy material; or

(E) regulated metal.

(10) "Regulated metal" means:

(A) manhole covers;

(B) guardrails;

(C) metal cylinders designed to contain compressed air, oxygen, gases, or liquids;

(D) beer kegs made from metal other than aluminum;

(E) historical markers or cemetery vases, receptacles, or memorials made from metal other than aluminum;

(F) unused rebar;

(G) street signs;

(H) drain gates;

(I) safes;

(J) communication, transmission, and service wire or cable;

(K) condensing or evaporator coils for heating or air conditioning units;

(L) utility structures, including the fixtures and hardware;

(M) aluminum or stainless steel containers designed to hold propane for fueling forklifts; [and]

(N) metal railroad equipment, including tie plates, signal houses, control boxes, signs, signals, traffic devices, traffic control devices, traffic control signals, switch plates, e-clips, and rail tie functions;

(O) catalytic converters;

(P) back flow valves; and

(Q) fire hydrant operating nuts.

SECTION 2. Section 1956.002, Occupations Code, is amended to read as follows:

Sec. 1956.002. EXCEPTION; REPORTING REQUIREMENTS. (a) This chapter does not apply to[:

[(1) a purchase of regulated material from a public utility or a manufacturing, industrial, commercial, retail, or other seller that sells regulated material in the ordinary course of the seller's business;

[(2) a purchase of regulated material by a manufacturer whose primary business is the manufacture of iron and steel products made from melting scrap iron and scrap steel; or

[(3)] the transport or hauling of recyclable materials to or from the metal recycling entity.

(b) The reporting requirements under Section 1956.036 do not apply to a purchase of regulated material:

(1) from a public utility or a manufacturing, industrial, commercial, retail, or other seller that sells regulated material in the ordinary course of the seller's business; or

(2) by a manufacturer whose primary business is the manufacture of iron and steel products made from melting scrap iron and scrap steel.

SECTION 3. Section 1956.032(a), Occupations Code, is amended to read as follows:

(a) Except as provided by Subsection (f), a person attempting to sell regulated material to a metal recycling entity shall:

(1) display to the metal recycling entity the person's personal identification document;

(2) provide to the metal recycling entity the make, model, and license plate number of the motor vehicle used to transport the regulated material and the name of the state issuing the license plate; and

(3) either:

(A) present written documentation evidencing that the person is the legal owner or is lawfully entitled to sell the regulated material; or

(B) sign a written statement provided by the metal recycling entity that the person is the legal owner of or is lawfully entitled to sell the regulated material offered for sale.

SECTION 4. Section 1956.033, Occupations Code, is amended to read as follows:

Sec. 1956.033. RECORD OF PURCHASE. (a) Each metal recycling entity in this state shall keep an accurate electronic record or an accurate and legible written record of each purchase made in the course of the entity's business from an individual of:

(1) copper or brass material;

(2) bronze material;

(3) aluminum material; [or]

(4) nickel alloy material; or

(5) regulated metal.

(b) The record must be in English and include:

(1) the place and date of the purchase;

(2) the name and address of each individual from whom the regulated material is purchased or obtained;

(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 purchased; and

(5) the information required by Sections 1956.032(a)(2) and (3) [Section 1956.032(a)(3)].

SECTION 5. Section 1956.034, Occupations Code, is amended to read as follows:

Sec. 1956.034. PRESERVATION OF RECORDS. A metal recycling entity shall preserve each record required by Sections 1956.032 and 1956.033 until the third anniversary of the date the record was made. The records must be kept:

(1) on the premises of the metal recycling entity; and

(2) in an easily retrievable format.

SECTION 6. Section 1956.036, Occupations Code, is amended to read as follows:

Sec. 1956.036. FURNISHING OF REPORT TO DEPARTMENT. (a) Except as provided by Subsection (b), not later than the close of business on the [seventh] day after the date of the purchase or other acquisition of material for which a record is required under Section 1956.033, a metal recycling entity shall send an electronic transaction report to the department via the department's Internet website. The [by facsimile or electronic mail to or file with the department a] report must contain [containing] the information required to be recorded under Section 1956.033 [that section].

(b) If a metal recycling entity purchases bronze material that is a cemetery vase, receptacle, memorial, or statuary or a pipe that can reasonably be identified as aluminum irrigation pipe, the entity shall:

(1) not later than the close of business on the [entity's first working day after the] purchase date, notify the department by telephone; and

(2) not later than the close of business on the [fifth] day after the purchase date, submit to the department electronically via the department's Internet website [mail to or file with the department] a report containing the information required to be recorded under Section 1956.033.

(c) Subsection (b) does not apply to a purchase from:

(1) the manufacturer or fabricator of the material or pipe; or

(2) a seller bearing a bill of sale for the material or pipe[; or

[(3) the owner of the material or pipe].

SECTION 7. Section 1956.037(a), Occupations Code, is amended to read as follows:

(a) A metal recycling entity may not dispose of, process, sell, or remove from the premises an item of regulated material [metal] unless:

(1) the entity acquired the item more than five days [72 hours], excluding weekends and holidays, 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.

SECTION 8. Subchapter A-3, Chapter 1956, Occupations Code, is amended by adding Sections 1956.0391 and 1956.0392 to read as follows:

Sec. 1956.0391. PURCHASE FROM MINOR. (a) A dealer may not purchase regulated material from a person younger than 18 years of age unless the seller delivers to the dealer before the purchase a written statement from the seller's parent or legal guardian consenting to the transaction.

(b) The dealer shall retain the statement with the records required to be kept under this subchapter.

Sec. 1956.0392. INSULATED WIRE. (a) A metal recycling entity may not purchase or otherwise receive wire that has been burned in whole or in part to remove the insulation.

(b) A metal recycling entity may not remove the insulation from wire unless the entity acquired the wire more than five days, excluding weekends and holidays, before the removal.

SECTION 9. Section 1956.040(a), Occupations Code, is amended to read as follows:

(a) A person commits an offense if the person knowingly violates Section 1956.021, Section 1956.023(d), or this subchapter [1956.038]. An offense under this subsection is a Class A misdemeanor 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.

SECTION 10. Section 1956.151, Occupations Code, is amended to read as follows:

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 provision of this chapter or a rule adopted under this chapter; or

(4) violates Section 1956.021.

SECTION 11. Section 1956.202(d), Occupations Code, is amended to read as follows:

(d) A civil penalty may not be assessed under this section for conduct described by Section 1956.021, Section 1956.023(d), or Subchapter A-3 [1956.038].

SECTION 12. Section 31.03(e), Penal Code, is amended to read as follows:

(e) Except as provided by Subsection (f), an offense under this section is:

(1) a Class C misdemeanor if the value of the property stolen is less than:

(A) $50; or

(B) $20 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06;

(2) a Class B misdemeanor if:

(A) the value of the property stolen is:

(i) $50 or more but less than $500; or

(ii) $20 or more but less than $500 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06; or

(B) the value of the property stolen is less than:

(i) $50 and the defendant has previously been convicted of any grade of theft; or

(ii) $20, the defendant has previously been convicted of any grade of theft, and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06;

(3) a Class A misdemeanor if the value of the property stolen is $500 or more but less than $1,500;

(4) a state jail felony if:

(A) the value of the property stolen is $1,500 or more but less than $20,000, or the property is less than 10 head of cattle, horses, or exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, or any part thereof under the value of $20,000, or less than 100 head of sheep, swine, or goats or any part thereof under the value of $20,000;

(B) regardless of value, the property is stolen from the person of another or from a human corpse or grave;

(C) the property stolen is a firearm, as defined by Section 46.01;

(D) the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft;

(E) the property stolen is an official ballot or official carrier envelope for an election; or

(F) the value of the property stolen is less than $20,000 and the property stolen [is insulated or noninsulated wire or cable that] consists of at least 50 percent:

(i) aluminum;

(ii) bronze; [or]

(iii) copper;

(iv) brass; or

(v) nickel alloy;

(5) a felony of the third degree if the value of the property stolen is $20,000 or more but less than $100,000, or the property is:

(A) 10 or more head of cattle, horses, or exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, stolen during a single transaction and having an aggregate value of less than $100,000; or

(B) 100 or more head of sheep, swine, or goats stolen during a single transaction and having an aggregate value of less than $100,000;

(6) a felony of the second degree if the value of the property stolen is $100,000 or more but less than $200,000; or

(7) a felony of the first degree if the value of the property stolen is $200,000 or more.

SECTION 13. Section 1956.014(d), Occupations Code, is repealed.

SECTION 14. (a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before that date.

(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

SECTION 15. This Act takes effect September 1, 2009.