82R1306 MAW-D

By: Cook H.B. No. 87

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 amending Subdivisions (1) and (10) and adding Subdivisions (1-a) and (8-a) to read as follows:

(1) "Air conditioning and refrigeration contracting company" has the meaning assigned by Section 1302.002.

(1-a) "Aluminum material" means a product made from aluminum, an aluminum alloy, or an aluminum by-product. The term includes aluminum wiring and an aluminum beer keg but does not include another type of aluminum can used to contain a food or beverage.

(8-a) "Refrigerant" has the meaning assigned by Section 1302.002.

(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, tubing, or rods for central 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 not attached to a vehicle;

(P) fire hydrants;

(Q) metal bleachers or other seating facilities used in recreational areas or sporting arenas;

(R) any metal item clearly and conspicuously marked with any form of the name, initials, or logo of a governmental entity, utility, cemetery, or railroad;

(S) insulated utility, communications, or electrical wire that has been burned wholly or partly to remove the insulation;

(T) backflow valves; and

(U) metal in the form of commonly recognized products of the industrial metals recycling process, including bales, briquettes, billets, sows, ingots, pucks, and chopped or shredded metals.

SECTION 2. The heading to Section 1956.003, Occupations Code, is amended to read as follows:

Sec. 1956.003. LOCAL LAW; CRIMINAL PENALTY.

SECTION 3. Section 1956.003, Occupations Code, is amended by adding Subsections (a-1), (f), and (g) to read as follows:

(a-1) A county, municipality, or other political subdivision may require the record of purchase described under Section 1956.033 to contain a clear and legible thumbprint of a seller of regulated material.

(f) A person commits an offense if the person operates a metal recycling entity and does not hold a license or permit required by a county, municipality, or other political subdivision as authorized under Subsection (b).

(g) An offense under Subsection (f) is a Class C misdemeanor unless it is shown on the trial of the offense that the person has been previously convicted under Subsection (f), in which event the offense is a Class A misdemeanor.

SECTION 4. Section 1956.015, Occupations Code, is amended by amending Subsection (d) and adding Subsection (e) to read as follows:

(d) Information provided under this section is not subject to disclosure under Chapter 552, Government Code. Except as provided by Subsection (b), the [The] department shall maintain the confidentiality of information provided under this section [that relates to the financial condition or business affairs of a metal recycling entity or that is otherwise commercially sensitive. The confidential information is not subject to disclosure under Chapter 552, Government Code].

(e) The department may enter into contracts relating to the operation of the statewide electronic reporting system established by this section. A contract under this subsection must:

(1) require that any contractor, subcontractor, or third party that has access to, comes into possession of, or otherwise obtains information provided under this section maintain the confidentiality of the information provided under this section; and

(2) provide that the department may terminate the contract of any contractor, subcontractor, or third party who violates the confidentiality provision required by Subdivision (1).

SECTION 5. Subchapter A-1, Chapter 1956, Occupations Code, is amended by adding Section 1956.016 to read as follows:

Sec. 1956.016. REGISTRATION DATABASE. The department shall make available on its Internet website a publicly accessible list of all registered metal recycling entities.

SECTION 6. Section 1956.032, Occupations Code, is amended to read as follows:

Sec. 1956.032. INFORMATION PROVIDED BY SELLER. (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:

(A) the make, model, color, and license plate number, and the state of issuance, of the motor vehicle used to transport the regulated material; and

(B) a description and any license plate number of any trailer used to transport the regulated material; [and]

(3) if the regulated material includes condensing or evaporator coils, tubing, or rods for central heating or air conditioning units, display to the metal recycling entity:

(A) the person's air conditioning and refrigeration contractor license issued under Subchapter F or G, Chapter 1302;

(B) the person's air conditioning and refrigeration technician registration issued under Subchapter K, Chapter 1302; or

(C) documentation showing that the refrigerant from the regulated material has been recovered and recycled by an air conditioning and refrigeration contracting company that meets the requirements of Section 1302.252;

(4) if the regulated material includes insulated utility, communications, or electrical wire that has been burned wholly or partly to remove the insulation, display to the metal recycling entity documentation from the fire department of a county, municipality, or other political subdivision stating that the material was salvaged from a fire in that county, municipality, or political subdivision; and

(5) 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.

(b) A person required by a municipality to prepare a signed statement consisting of the information required by Subsection (a)(5) [(a)(3)] may use the statement required by the municipality to comply with Subsection (a)(5) [(a)(3)].

(c) The metal recycling entity [or the entity's agent] shall visually verify the accuracy of the personal identification document presented by the seller at the time of the purchase of regulated material and make a copy of the document [identification] to be maintained by the entity in the entity's records, except as otherwise provided by Subsection (f).

(d) Unless exempt as provided by Section 1956.0335, the [The] metal recycling entity shall obtain a digital or video [or the entity's agent for recordkeeping purposes may] photograph that accurately depicts the seller's entire face, not including any hat, and obtain the name of the seller's employer.

(e) Unless exempt as provided by Section 1956.0335, the [The] metal recycling entity shall obtain a digital or video [or the entity's agent for recordkeeping purposes may take a] photograph that accurately depicts:

(1) [of] the motor vehicle of the seller in which the make, model, color, and license plate number of the motor vehicle are identifiable; and

(2) the model and any license plate number of any trailer attached to the seller's motor vehicle [in lieu of the information required under Subsection (a)(3)].

(f) The metal 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)(5) [(a)(3)] if:

(1) the seller signs the written statement as required under Subsection (a)(5) [(a)(3)];

(2) the seller has previously provided the information required under Subsections [Subsection] (a) and (c); and

(3) the previously provided information has not changed.

(g) Notwithstanding Section 1956.002, a person attempting to sell regulated material who represents that the person is a metal recycling entity shall provide a copy of the certificate of registration issued under Section 1956.022 in addition to the information required under Subsection (a).

SECTION 7. 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 of regulated material 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) regulated metal].

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

(1) the name and address of the metal recycling entity;

(2) the [place and] date of the purchase;

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

[(3) the] identifying number displayed on [of] the seller's personal identification document and a copy of the seller's personal identification document as required under Section 1956.032;

(4) as applicable:

(A) the identifying number of the seller's air conditioning and refrigeration contractor license displayed under Section 1956.032(a)(3)(A);

(B) a copy of the seller's air conditioning and refrigeration technician registration displayed under Section 1956.032(a)(3)(B);

(C) a copy of the documentation described by Section 1956.032(a)(3)(C); or

(D) a copy of the documentation described by Section 1956.032(a)(4);

(5) a digital or video photograph that accurately depicts each item of regulated material purchased unless the metal recycling entity is exempt as provided by Section 1956.0335;

(6) a description made in accordance with the custom of the trade of the type and quantity of regulated material purchased;

(7) copies of the photographs described by Sections 1956.032(d) and (e) unless the metal recycling entity is exempt as provided by Section 1956.0335;

(8) a copy of the seller's thumbprint if required by a county, municipality, or other political subdivision as provided by Section 1956.003(a-1); and

(9) [(5)] the information required by Section 1956.032(a)(5) [1956.032(a)(3)].

SECTION 8. Subchapter A-3, Chapter 1956, Occupations Code, is amended by adding Section 1956.0335 to read as follows:

Sec. 1956.0335. EXEMPTION FROM PHOTOGRAPH REQUIREMENT. A metal recycling entity is exempt from the requirements of Sections 1956.032(d) and (e) and 1956.033(b)(5) and (7) if:

(1) the entity annually submits to the department:

(A) an application requesting an exception to the requirements; and

(B) an affidavit stating that the entity does not have an available means of obtaining a digital or video photograph; and

(2) the department approves the entity's application under this section.

SECTION 9. Section 1956.034, Occupations Code, is amended to read as follows:

Sec. 1956.034. PRESERVATION OF RECORDS; UNAUTHORIZED USE OF INFORMATION. (a) 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.

(b) The records may be maintained in an electronic medium or through other recordkeeping technology. If a record is not maintained in a hard copy format, the metal recycling entity must provide a legible hard copy of the record on request of a peace officer under Section 1956.035.

(c) The records must be kept in the office or place of business where the purchase was made.

(d) Except as authorized by this chapter, a person commits an offense if the person releases or discloses information regarding a seller of regulated material that is contained in a record required by Section 1956.032 or 1956.033.

(e) An offense under Subsection (d) is a Class A misdemeanor unless it is shown on trial of the offense that the person has previously been convicted under Subsection (d), in which event the offense is a state jail felony.

SECTION 10. Section 1956.036, Occupations Code, is amended by amending Subsections (a) and (b) and adding Subsection (d) to read as follows:

(a) Except as provided by Subsections [Subsection] (b) and (d), not later than 48 hours [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 48 hours [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.

(d) A metal recycling entity may submit the transaction report required under Subsection (a) by facsimile if:

(1) the entity annually submits to the department:

(A) an application requesting an exception to the electronic reporting requirement; and

(B) an affidavit stating that the entity does not have an available and reliable means of submitting the transaction report electronically; and

(2) the department approves the entity's application under this subsection.

SECTION 11. 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 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 12. Section 1956.038, Occupations Code, is amended to read as follows:

Sec. 1956.038. PROHIBITED ACTS. (a) A person may not, with the intent to deceive:

(1) display to a metal recycling entity a false or invalid personal identification document in connection with the person's attempted sale of regulated material;

(2) make a false, material statement or representation to a metal recycling entity in connection with:

(A) that person's execution of a written statement required by Section 1956.032(a)(5) [1956.032(a)(3)]; or

(B) the entity's efforts to obtain the information required under Section 1956.033(b); [or]

(3) display or provide to a metal recycling entity any information required under Section 1956.032 that the person knows is false or invalid; or

(4) display another individual's personal identification document in connection with the sale of regulated material.

(b) A metal recycling entity may pay for a purchase of regulated metal only as follows:

(1) by check issued to the seller not earlier than the fifth day after the date of the purchase; or

(2) by cash not earlier then the 10th day after the date of the purchase.

(c) A metal recycling entity may not pay cash for a purchase of regulated material unless the entity is registered under Subchapter A-2.

(d) Notwithstanding Section 1956.003(a) or any other law, a county, municipality, or other political subdivision may not adopt a rule, charter, or ordinance or issue an order or impose standards that limit the use of cash by a metal recycling entity in a manner more restrictive than that provided by Subsections (b) and (c).

(e) A metal recycling entity that purchases regulated material with cash in violation of Subsection (c) may not pay cash for a purchase of regulated material before the second anniversary of the date the entity registers under Subchapter A-2.

SECTION 13. Section 1956.040, Occupations Code, is amended by adding Subsections (a-1), (a-2), (a-3), and (b-1) and amending Subsection (b) to read as follows:

(a-1) A person commits an offense if the person knowingly violates Section 1956.021, 1956.023(d), 1956.036(a), or 1956.039. An offense under this subsection is a misdemeanor punishable by a fine not to exceed $10,000, unless it is shown on trial of the offense that the person has previously been convicted of a violation of this subsection, in which event the offense is a state jail felony.

(a-2) It is an affirmative defense to prosecution of a violation of Section 1956.021 or 1956.023(d) that the person made a diligent effort to obtain or renew a certificate of registration at the time of the violation.

(a-3) The clerk of the court shall remit a fine collected for conviction of an offense under Subsection (a-1) to the comptroller in the manner provided for the remission of fees to the comptroller under Subchapter B, Chapter 133, Local Government Code. The comptroller shall deposit proceeds received under this subsection to the credit of an account in the general revenue fund, and those proceeds may be appropriated only to the department and used to:

(1) finance the department's administration of Subchapters A, A-1, A-2, and A-3; and

(2) fund grants distributed under the prevention of scrap metal theft grant program established under Subchapter N, Chapter 411, Government Code.

(b) A person commits an offense if the person knowingly buys:

(1) stolen regulated material;

(2) insulated utility, communications, or electrical wire that has been burned wholly or partly to remove the insulation, unless the wire is accompanied by documentation from the fire department of a county, municipality, or other political subdivision stating that the material was salvaged from a fire in that county, municipality, or political subdivision; or

(3) condensing or evaporator coils, tubing, rods, or other components of a central air conditioning unit that have been altered to resemble components of a portable or self-contained ductless air conditioning product that has a cooling capacity of three tons or less.

(b-1) An offense under Subsection (b) [this subsection] is a Class A misdemeanor unless it is shown on trial of the offense that the person has previously been convicted under Subsection (b) [this subsection], in which event the offense is a state jail felony.

SECTION 14. Section 1956.103(a), Occupations Code, is amended to read as follows:

(a) A person may not sell or otherwise transfer to a metal recycling entity:

(1) a lead-acid battery, fuel tank, or PCB-containing capacitor that is included with another type of scrap, used, or obsolete metal without first obtaining from the metal recycling entity a written and signed acknowledgment that the scrap, used, or obsolete metal includes one or more lead-acid batteries, fuel tanks, or PCB-containing capacitors;

(2) any of the following items that contain or enclose a lead-acid battery, fuel tank, or PCB-containing capacitor or of which a lead-acid battery, fuel tank, or PCB-containing capacitor is a part:

(A) a motor vehicle;

(B) a motor vehicle that has been junked, flattened, dismantled, or changed so that it has lost its character as a motor vehicle;

(C) an appliance; or

(D) any other item of scrap, used, or obsolete metal; [or]

(3) a motor vehicle or a motor vehicle that has been junked, flattened, dismantled, or changed so that it has lost its character as a motor vehicle if the motor vehicle includes, contains, or encloses a tire or scrap tire; or

(4) a metal alcoholic beverage keg, regardless of condition, unless the seller is the manufacturer of the keg, the brewer or distiller of the beverage that was contained in the keg, or an authorized representative of the manufacturer, brewer, or distiller.

SECTION 15. 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 16. 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, 1956.023(d), 1956.036(a), 1956.038, or 1956.039.

SECTION 17. Chapter 411, Government Code, is amended by adding Subchapter N to read as follows:

SUBCHAPTER N. PREVENTION OF SCRAP METAL THEFT GRANT PROGRAM

Sec. 411.421. DEFINITION. In this subchapter, "regulated material" has the meaning assigned by Section 1956.001, Occupations Code.

Sec. 411.422. GRANTS TO FUND SCRAP METAL THEFT PREVENTION. (a) From fines collected and distributed to the department under Sections 1956.040(a-1) and (a-3), Occupations Code, the commission by rule shall establish and implement a grant program to provide funding to assist local law enforcement agencies in preventing the theft of regulated material.

(b) To be eligible for a grant, a recipient must be a local law enforcement agency that has established a program designed to prevent the theft of regulated material.

(c) Rules adopted under this section must:

(1) include accountability measures for grant recipients and provisions for loss of eligibility for grant recipients that fail to comply with the measures; and

(2) require grant recipients to provide to the department information on program outcomes.

SECTION 18. 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;

(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; or

(C) the property stolen is a driver's license, commercial driver's license, or personal identification certificate issued by this state or another state;

(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 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, including property that is a military grave marker;

(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 tubing, rods, water gate stems, wire, or cable that consists of at least 50 percent]:

(i) aluminum;

(ii) bronze; [or]

(iii) copper; or

(iv) brass;

(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) 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) 10 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 19. (a) Notwithstanding Subsection (c) of this section, 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.

(c) The enhancement of the punishment of an offense provided under Section 1956.003(g) or 1956.040(a-1), Occupations Code, as added by this Act, applies only to an offense committed on or after January 1, 2012. For purposes of this subsection, an offense is committed before January 1, 2012, if any element of the offense occurs before that date. An offense committed before January 1, 2012, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

SECTION 20. This Act takes effect September 1, 2011.