81R5683 TRH-D
By: Herrero H.B. No. 2925
A BILL TO BE ENTITLED
AN ACT
relating to protections provided by the Department of Agriculture
for certain consumers; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 13.001(a)(3), Agriculture Code, is
amended to read as follows:
(3) "Pump" means a [gasoline, kerosene, or diesel fuel
measuring or dispensing] device used to measure or dispense any
motor fuel, as defined by Section 162.001, Tax Code.
SECTION 2. Section 13.007(a), Agriculture Code, is amended
to read as follows:
(a) A person who violates this chapter or a rule adopted
under this chapter is liable to the state for a civil penalty not to
exceed $10,000 [$500] for each violation. Each day a violation
continues may be considered a separate violation for purposes of a
civil penalty assessment.
SECTION 3. Section 13.039, Agriculture Code, is amended to
read as follows:
Sec. 13.039. TESTING OF PACKAGE BY INSPECTOR [SEALER]. (a)
An inspector [A sealer] appointed under Subchapter C of this
chapter shall from time to time weigh or measure a package, or an
amount of any commodity, that is kept or offered for sale, sold, or
in the process of delivery, in order to determine:
(1) if the commodity is of the amount or quantity
represented; or
(2) if the commodity is being offered for sale or sold
in accordance with law.
(b) If an inspector [a sealer] finds that a package or any
lot of a commodity contains less of the commodity than the amount
represented, the inspector [sealer] may seize the package or the
commodity as evidence.
(c) A person commits an offense if the person or the
person's employee or agent refuses to exhibit a commodity being
sold or offered for sale at a given weight or quantity, or
ordinarily sold in that manner, to an inspector [a sealer] for
testing and proving as to quantity.
SECTION 4. Sections 13.101(a) and (d), Agriculture Code,
are amended to read as follows:
(a) At least once every four years, or more often as
required by the department, a weight or measure shall be inspected
and tested for correctness by an inspector [a sealer] if it:
(1) is kept for sale, sold, or used by a proprietor,
agent, lessee, or employee in proving the weight or measure,
including the size, quantity, extent, or area, of any item; or
(2) is purchased, offered, or submitted by a
proprietor, agent, lessee, or employee for sale, hire, or award.
(d) Unless the department requires an additional
inspection, a weight or measure that is inspected and found correct
by an inspector [a sealer] may be kept for use, used, kept or
offered for sale, or sold without further testing.
SECTION 5. Section 13.1011(a), Agriculture Code, is amended
to read as follows:
(a) A person who operates a pump, scale, or bulk or
liquefied petroleum gas metering device for a commercial
transaction shall [must] register annually with the department.
SECTION 6. Section 13.1012(e), Agriculture Code, is amended
to read as follows:
(e) The department may conduct an inspection of an
applicant's or registrant's:
(1) facilities;
(2) inspecting and testing equipment and procedures;
(3) repair and calibration equipment, records, and
procedures; and
(4) transportation equipment.
SECTION 7. Section 13.102, Agriculture Code, is amended to
read as follows:
Sec. 13.102. REGISTRATION [INSPECTION SEAL] REQUIRED
[PRIOR TO SALE]. (a) A person shall register a weight or measure
with the department if the person uses the weight or measure in:
(1) buying or selling a commodity or item;
(2) computing a charge for services rendered on the
basis of weight or measure; or
(3) determining a weight or measure, if a charge is
made for that determination.
(b) Except as provided by Subsection [(b) or] (c) or (d) of
this section, a person may not sell a weight or measure unless it
bears a valid registration tag issued by the department [inspection
seal as to its correctness].
(c) [(b)] A weight or measure that has been tested[,
sealed,] and certified correct by the National Institute of
Standards and Technology may be kept or offered for sale or sold
without being registered [sealed] under this subchapter.
(d) [(c)] A weight or measure that after sale must be
assembled before use may be kept or offered for sale or sold without
first being registered [sealed] under this subchapter but, unless
otherwise approved by the department, must be tested and
registered [sealed] under this subchapter before use for weighing
or measuring.
SECTION 8. Section 13.104, Agriculture Code, is amended to
read as follows:
Sec. 13.104. STATE INSPECTORS [SEALERS]. (a) The
commissioner may appoint employees of the department, or a person
licensed by the department under Subchapter H [deputies], as
provided for by appropriation, [and inspectors, lecturers, and
other employees of the department] to serve as state inspectors
[sealers] of weights and measures.
(b) The jurisdiction of a state inspector [sealer] is
coextensive with the limits of the state. A state inspector
[sealer] is entitled to inspect and test weights and measures in any
district or locality designated by the department.
(c) A deputy appointed to serve as state sealer is entitled
to reimbursement for actual traveling expenses while traveling on
the business of the state.
SECTION 9. The heading to Section 13.108, Agriculture Code,
is amended to read as follows:
Sec. 13.108. POWERS AND DUTIES OF INSPECTORS [SEALERS].
SECTION 10. Section 13.108(a), Agriculture Code, is amended
to read as follows:
(a) In addition to inspecting and [,] testing[, and sealing]
weights and measures, each inspector [sealer] and deputy inspector
[sealer] shall:
(1) preserve all copies of the standards used in
conducting tests and keep the standards in safe and good order when
not in use;
(2) keep a record of all work performed, including
inspections made, and the name and post office address of each
party:
(A) for whom a measurement, test weight, or
inspection is made;
(B) whose weight or measure is condemned; or
(C) who is prosecuted; and
(3) keep a record of all violations of this chapter and
report those violations to the department.
SECTION 11. Section 13.109, Agriculture Code, is amended to
read as follows:
Sec. 13.109. RULES GOVERNING INSPECTORS [SEALERS]. The
department shall issue instructions and adopt rules governing state
inspectors [sealers] as necessary to carry out the purposes of this
chapter.
SECTION 12. The heading to Section 13.110, Agriculture
Code, is amended to read as follows:
Sec. 13.110. INSPECTING[,] AND TESTING[, AND SEALING].
SECTION 13. Section 13.110(a), Agriculture Code, is amended
to read as follows:
(a) In accordance with this subchapter, each inspector
[sealer] may inspect and test all weights and measures used in the
locality to which the inspector [sealer] is assigned.
SECTION 14. Sections 13.111(a) and (b), Agriculture Code,
are amended to read as follows:
(a) If, in the judgment of the inspector [sealer], a weight
or measure found to be incorrect is not capable of being repaired,
the inspector [sealer] may condemn, seize, and destroy the weight
or measure.
(b) If, in the judgment of the inspector [sealer], an
incorrect weight or measure is capable of being repaired, the
inspector [sealer] shall place on the weight or measure a tag or
other mark with the words "Out of Order." The owner or user of the
weight or measure may have it repaired within 30 days, but may not
use or dispose of it until it is reinspected and approved by an
inspector [sealed]. After repair, the owner or user shall notify
the inspector [sealer] and the inspector [sealer] shall reinspect
the weight or measure. If it is found to be correct, the inspector
[sealer] shall remove the out-of-order tag [and seal the weight or
measure as provided by Section 13.110 of this code].
SECTION 15. Sections 13.113(a), (c), and (e), Agriculture
Code, are amended to read as follows:
(a) The standards of weights and measures received from the
United States and certified by the National Institute of Standards
and Technology are the state's standards by which all state and
local standards of weights and measures are tried, authenticated,
and proved[, and sealed].
(c) In addition to the standards kept by the state, the
department shall maintain a complete set of copies of the original
standards for use in adjusting local standards or in the
performance of other official duties. The department may purchase
additional sets of standards as necessary for use by state
inspectors [sealers].
(e) The department shall inspect and correct the standards
used by a local inspector [sealer] at least once every year [two
years]. The department shall keep a record of the inspection and
character of weights and measures inspected under this subsection.
The city shall pay all expenses incurred in inspections under this
subsection.
SECTION 16. Section 13.116, Agriculture Code, is amended to
read as follows:
Sec. 13.116. USE OR SALE OF UNREGISTERED [UNSEALED] WEIGHT
OR MEASURE. (a) A person commits an offense if the person or the
person's servant or agent:
(1) offers or exposes for sale, hire, or award or sells
an unregistered [unsealed] weight or measure;
(2) uses an unregistered [unsealed] weight or measure
in:
(A) buying or selling a commodity or item;
(B) computing a charge for services rendered on
the basis of weight or measure; or
(C) determining a weight or measure, if a charge
is made for that determination; or
(3) possesses an unregistered [unsealed] weight or
measure.
(b) In this section, a weight or measure is unregistered
[unsealed] if it has not been registered [sealed] within the past
year in accordance with this subchapter.
SECTION 17. Section 13.117, Agriculture Code, is amended to
read as follows:
Sec. 13.117. REFUSING TO PERMIT TEST OF WEIGHT OR MEASURE. A
person commits an offense if the person neglects or refuses to
exhibit a weight or measure under the person's control or in the
person's possession to the department or an inspector [a sealer]
for inspection or examination as required by law.
SECTION 18. Section 13.118, Agriculture Code, is amended to
read as follows:
Sec. 13.118. HINDERING INSPECTOR [SEALER]. A person
commits an offense if the person hinders or obstructs in any way the
department or an inspector [a sealer] in the performance of
official duties.
SECTION 19. Section 13.119, Agriculture Code, is amended to
read as follows:
Sec. 13.119. REMOVAL OF REGISTRATION [SEALER'S] TAG. A
person commits an offense if the person removes or obliterates a tag
or device placed on a weight or measure under this chapter [Section
13.110 or 13.111 of this code].
SECTION 20. Sections 13.401(a), (b), and (d), Agriculture
Code, are amended to read as follows:
(a) A person who has a license issued under this subchapter
has all of the powers and duties of an inspector [a sealer] under
this chapter except for:
(1) testing of a package under Section 13.039;
(2) peace officer status under Section 13.108(b); and
(3) entering premises or conducting a stop under
Section 13.108(c).
(b) It is a defense to prosecution under Section 13.117 or
13.118 that the inspector [sealer] is acting under the authority of
a license issued under this subchapter.
(d) Unless appointed an inspector [a sealer] under
Subchapter C, a person may not perform the functions of an inspector
[a sealer] without a license issued under this subchapter.
SECTION 21. Subchapter B, Chapter 17, Agriculture Code, is
amended by adding Section 17.056 to read as follows:
Sec. 17.056. MINIMUM MOTOR FUEL QUALITY STANDARDS. A
dealer, distributor, jobber, supplier, or wholesaler may only sell
or offer for sale motor fuel that complies with:
(1) the minimum standards for water content
established by the National Institute of Standards and Technology,
as those standards existed on September 1, 2009; and
(2) the minimum standards for fuel quality and
composition established by the American Society for Testing and
Materials, as those standards existed on September 1, 2009.
SECTION 22. Section 17.102, Agriculture Code, is amended to
read as follows:
Sec. 17.102. TESTING; RULES RELATING TO TESTING FREQUENCY.
To determine compliance with the standards and enforce rules
adopted under Sections 17.051, 17.052, 17.053, 17.055, 17.056,
[and] 17.103, and 17.105, the commissioner or an authorized
representative of the commissioner may test any motor fuel sold in
this state, regardless of the existence of a complaint about the
fuel. This section does not prohibit the commissioner from
adopting rules relating to the frequency of testing motor fuels. In
adopting the rules, the commissioner shall consider:
(1) the nature of the violation;
(2) the history of past violations; and
(3) available funds under Section 17.104(d).
SECTION 23. Section 17.104(a), Agriculture Code, is amended
to read as follows:
(a) The commissioner may adopt rules consistent with this
chapter for the regulation of the sale of motor fuels, including
motor fuels that contain [containing] ethanol and methanol.
SECTION 24. Subchapter C, Chapter 17, Agriculture Code, is
amended by adding Section 17.105 to read as follows:
Sec. 17.105. TESTING OF MOTOR FUEL QUALITY. The
commissioner may conduct testing, at any location where motor fuel
is refined, distributed, or sold, to verify that the motor fuel
complies with the minimum standards required by Section 17.056.
SECTION 25. Subchapter D, Chapter 17, Agriculture Code, is
amended by adding Section 17.156 to read as follows:
Sec. 17.156. STOP-SALE ORDER. (a) If the department has
reason to believe that motor fuel is in violation of this subchapter
or a rule adopted under this subchapter, the department may issue
and enforce a written order to stop the sale of the motor fuel. The
department shall present the order to the dealer, distributor,
jobber, supplier, or wholesaler who is in control of the motor fuel
at the time the motor fuel is tested. The person who receives the
order may not sell the motor fuel until discharged by a court under
Subsection (b) or until the department determines that the motor
fuel is in compliance with this subchapter and department rules.
(b) The person who is in control of motor fuel prohibited
from sale by the order is entitled to bring suit against the
department in the county where the motor fuel is located for a
judgment as to the justification for the order and for discharge of
the motor fuel from the order in accordance with the findings of the
court.
(c) This section does not limit the authority of the
department to proceed under another section of this subchapter.
SECTION 26. The following provisions of the Agriculture
Code are repealed:
(1) Section 13.004;
(2) Section 13.104(c); and
(3) Section 13.110(b).
SECTION 27. (a) Not later than January 1, 2010, the
Department of Agriculture shall adopt rules, procedures, and forms
for the registration of a weight and measure as required by Section
13.102, Agriculture Code, as amended by this Act.
(b) The department may not enforce Section 13.102,
Agriculture Code, as amended by this Act, until the rules,
procedures, and forms adopted under Subsection (a) of this section
take effect.
SECTION 28. This Act takes effect September 1, 2009.