H.B. No. 2925
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), Agriculture Code, is amended
to read as follows:
(a) In this chapter:
(1) "Weight or measure of a commodity" means the
weight or measure of a commodity as determined by a weighing or
measuring device [includes a weight, scale, beam, or measure of any
kind; an instrument or mechanical device for weighing or measuring;
and an appliance or accessory connected with an instrument or
mechanical device for weighing or measuring].
(2) "Sell" includes barter or exchange.
(3) "Weighing or measuring device" ["Pump"] means:
(A) a scale; or
(B) a mechanical or electronic device used to
dispense or deliver a commodity by weight, volume, flow rate, or
other measure [a gasoline, kerosene, or diesel fuel measuring or
dispensing device].
SECTION 2. Section 13.002(a), Agriculture Code, is amended
to read as follows:
(a) The department shall enforce the provisions of this
chapter and shall supervise all weighing or measuring devices
[weights and measures] sold or offered for sale in this state. The
department may purchase apparatus as necessary for the
administration of this chapter.
SECTION 3. Sections 13.021(a), (c), and (d), Agriculture
Code, are amended to read as follows:
(a) The legal standard for the weight or measure of a
commodity [of weights and measures] in this state is the standard
weight or measure [of weights and measures] adopted and used by the
government of the United States for that commodity. If the United
States does not provide a standard [of] weight or measure for a
commodity, the standard for that commodity is that established by
this subchapter.
(c) Except as otherwise provided by an express contract, a
contract for work or sales by weight or measure of a commodity shall
be construed in accordance with the standards of this subchapter.
(d) The standards of this subchapter shall be the guide for
making any adjustment of weighing [weights] or measuring devices
[measures] under the law of this state.
SECTION 4. Subchapter B, Chapter 13, Agriculture Code, is
amended by adding Section 13.029 to read as follows:
Sec. 13.029. EXEMPTION OF WEIGHING OR MEASURING DEVICES.
The department by rule may exempt a weighing or measuring device
from a requirement established by this chapter if the department
determines that imposing or enforcing the requirement:
(1) is not cost-effective for the department;
(2) is not feasible with current resources or
standards; or
(3) will not substantially benefit or protect
consumers.
SECTION 5. Sections 13.036, 13.037, and 13.039, Agriculture
Code, are amended to read as follows:
Sec. 13.036. FALSE REPRESENTATION OF COMMODITY QUANTITY. A
person commits an offense if the person or the person's servant or
agent:
(1) sells or offers or exposes for sale a quantity of a
commodity or service that is less than the quantity the person
represents; or
(2) as a buyer furnishing the weight or measure of a
commodity or service by which the amount of the [a] commodity or
service is determined, takes or attempts to take more than the
quantity the person represents.
Sec. 13.037. USE OF INCORRECT WEIGHING [FALSE WEIGHT] OR
MEASURING DEVICE [MEASURE]. (a) A person commits an offense if the
person or the person's servant or agent uses an incorrect weighing
[a false weight] or measuring device [measure] in:
(1) buying or selling a commodity;
(2) computing a charge for services rendered on the
basis of weight or measure; or
(3) determining the weight or measure of a commodity,
if a charge is made for the determination.
(b) For the purpose of this section, a weighing [weight] or
measuring device [measure] is incorrect [false] if it:
(1) does not conform as closely as practicable to the
official standards;
(2) is not accurate;
(3) is of a construction that is not reasonably
permanent in adjustment or does not correctly repeat its
indications;
(4) facilitates the perpetration of fraud; or
(5) does not conform to the specifications and
tolerances established by the department under Section 13.114 [of
this code].
Sec. 13.039. TESTING OF PACKAGE BY DEPARTMENT [SEALER].
(a) The department [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 the department [a sealer] finds that a package or any
lot of a commodity contains less of the commodity than the amount
represented, the department [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 the department [a sealer] for
testing and proving as to quantity.
SECTION 6. The heading to Subchapter C, Chapter 13,
Agriculture Code, is amended to read as follows:
SUBCHAPTER C. INSPECTION AND REGISTRATION OF WEIGHING OR MEASURING
DEVICES [WEIGHTS AND MEASURES]
SECTION 7. Section 13.101, Agriculture Code, is amended to
read as follows:
Sec. 13.101. REQUIRED INSPECTION. (a) At least once every
four years, or more often as required by the department, a weighing
[weight] or measuring device [measure] shall be inspected and
tested for correctness by the department [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.
(b) The department shall, to the extent necessary to ensure
compliance with the official standards, require additional
inspection and testing of weighing or measuring devices [weights
and measures].
(c) A person who uses or keeps for use, or has or offers for
sale, a weighing [weight] or measuring device [measure] is
responsible for having the device [weight or measure] inspected and
tested as required by this section.
(d) Unless the department requires an additional
inspection, a weighing [weight] or measuring device [measure] that
is inspected and found correct by the department [a sealer] may be
kept for use, used, kept or offered for sale, or sold without
further testing.
(e) The department may inspect and test a weighing or
measuring device less frequently than required by Subsection (a):
(1) to accommodate complaint-based and risk-based
inspection schedules; or
(2) in response to an emergency or a limitation in
department funding.
SECTION 8. Sections 13.1011(a) and (c), Agriculture Code,
are amended to read as follows:
(a) A person who operates a weighing or measuring [pump,
scale, or bulk or liquefied petroleum gas metering] device for a
commercial transaction shall [must] register annually with the
department.
(c) If a person fails to register as required by this
section and pay the fee required under Section 13.1151 [of this
code], the department may assess a late fee against the person,
prohibit the operation of the weighing or measuring [pump, scale,
or metering] device, or both assess the fee and prohibit the
operation of the [pump, scale, or metering] device.
SECTION 9. 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 10. The heading to Section 13.111, Agriculture
Code, is amended to read as follows:
Sec. 13.111. REPAIR OR DESTRUCTION OF INCORRECT WEIGHING
[WEIGHTS] OR MEASURING DEVICES [MEASURES].
SECTION 11. Sections 13.111(a) and (b), Agriculture Code,
are amended to read as follows:
(a) If, in the judgment of the department [sealer], a
weighing [weight] or measuring device [measure] found to be
incorrect is not capable of being repaired, the department [sealer]
may condemn, seize, and destroy the device [weight or measure].
(b) If, in the judgment of the department [sealer], an
incorrect weighing [weight] or measuring device [measure] is
capable of being repaired, the department [sealer] shall place on
the device [weight or measure] a tag or other mark with the words
"Out of Order." The owner or user of the weighing [weight] or
measuring device [measure] may have it repaired within 30 days, but
may not use or dispose of it until it is reinspected and released
for use by the department or inspected and released for use in any
other manner authorized by department rule [sealed. After repair,
the owner or user shall notify the sealer and the sealer shall
reinspect the weight or measure. If it is found to be correct, the
sealer shall remove the out-of-order tag and seal the weight or
measure as provided by Section 13.110 of this code].
SECTION 12. Section 13.112, Agriculture Code, is amended to
read as follows:
Sec. 13.112. TESTS FOR STATE INSTITUTIONS. As requested by
the comptroller or the governing body of a state institution, the
department shall test each weighing [weight] or measuring device
[measure] used by a state institution for any purpose, including a
weighing or measuring device [weight or measure] used in checking
the receipt and distribution of supplies. The department shall
report results of the test to the chairman of the governing body of
the institution.
SECTION 13. Sections 13.113(a), (c), (d), 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,
proved, and certified [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 a department
inspector or other department personnel [state sealers].
(d) At the request of a city, the department shall furnish
the city with copies of the state's standards or test and approve
other standards acquired by the city. The city shall reimburse the
state for the actual cost of the standards furnished, plus the costs
of freight and certification. All standards furnished to or tested
for a city shall be true and correct, [sealed and] certified by the
department [commissioner], and stamped with the letter "C". The
copies used by a city may be of any suitable material or
construction that the city requests, subject to approval by the
department.
(e) The department shall inspect and correct the standards
used by a department inspector, other department employee, or
individual or business licensed by the department to perform
private maintenance, repairs, or calibration of weighing or
measuring devices [a local 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 14. Section 13.114(a), Agriculture Code, is amended
to read as follows:
(a) The department shall establish tolerances and
specifications for commercial weighing or [and] measuring devices
[apparatus] used in this state. The tolerances and specifications
shall be similar to those recommended by the National Institute of
Standards and Technology.
SECTION 15. Sections 13.115(a) and (f), Agriculture Code,
are amended to read as follows:
(a) The department shall collect a fee in accordance with
this section for each test of a weighing [weight] or measuring
device [measure] required by this subchapter or performed on
request of the owner.
(f) The department shall charge a fee, as provided by
department rule, for precision testing of tapes, rules, glassware,
and other weighing or measuring devices performed by the
department's metrology laboratory.
SECTION 16. Sections 13.1151, 13.117, 13.118, and 13.119,
Agriculture Code, are amended to read as follows:
Sec. 13.1151. FEES FOR REGISTRATION AND INSPECTION. The
department may charge the owner or operator of a weighing or
measuring device a fee, as provided by department rule, to recover
the costs of registration and inspection of a weighing or [pump,
scale, bulk or liquefied petroleum gas metering device, or other]
measuring [or dispensing] device required to be registered or
inspected under this chapter.
Sec. 13.117. REFUSING TO ALLOW [PERMIT] TEST OF WEIGHING
[WEIGHT] OR MEASURING DEVICE [MEASURE]. A person commits an offense
if the person neglects or refuses to allow [exhibit] a weighing
[weight] or measuring device [measure] under the person's control
or in the person's possession to be inspected, tested, or examined
by the department, and the inspection, test, or examination is
required by this chapter [or a sealer for inspection or examination
as required by law].
Sec. 13.118. HINDERING DEPARTMENT PERSONNEL [SEALER]. A
person commits an offense if the person hinders or obstructs in any
way the department, a department inspector or other department
personnel [a sealer] in the performance of official duties.
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 weighing [weight] or measuring device
[measure] under this chapter [Section 13.110 or 13.111 of this
code].
SECTION 17. Sections 13.120 and 13.121, Agriculture Code,
are amended to read as follows:
Sec. 13.120. SALE OR USE OF INCORRECT WEIGHING [FALSE
WEIGHTS] OR MEASURING DEVICE [MEASURES]. (a) The department may
condemn and prohibit the sale or distribution of any incorrect
weighing [false weight] or measuring device [measure] that is sold,
offered for sale, or about to be sold in this state.
(b) 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 incorrect weighing [a false weight] or measuring device
[measure];
(2) possesses an incorrect weighing [a false weight]
or measuring device [measure]; or
(3) sells, offers for sale, uses, or possesses for the
purpose of sale or use a device or instrument to be used to falsify
or intended to falsify a weight or measure.
[(c) In this section, "false weight or measure" has the
meaning assigned by Section 13.037 of this code.]
Sec. 13.121. DISPOSING OF CONDEMNED WEIGHING OR MEASURING
DEVICE [WEIGHT]. A person commits an offense if the person or the
person's servant or agent disposes of a weighing [weight] or
measuring device [measure] condemned under Section 13.111 or 13.120
[of this code] in a manner contrary to those sections.
SECTION 18. Section 13.253(b), Agriculture Code, is amended
to read as follows:
(b) An elected county public weigher must obtain a
certificate of authority as provided by Section 13.255 [of this
code] and must execute a bond as provided by Section 13.256 [of this
code] before issuing an official certificate of weight or measure
of a commodity. A county public weigher elected under this section
is subject to rules adopted by the commissioners court.
SECTION 19. Section 13.257(a), Agriculture Code, is amended
to read as follows:
(a) On each certificate of weight or measure of a commodity
that a public weigher or deputy public weigher issues, the public
weigher or deputy public weigher shall include the:
(1) time and date that the weight or measure of the
commodity [measurement] was taken;
(2) signature and license number of the public weigher
or deputy public weigher; and
(3) seal of the department.
SECTION 20. Section 13.259(a), Agriculture Code, is amended
to read as follows:
(a) A public weigher or deputy public weigher who
intentionally or knowingly issues a certificate of weight or
measure of a commodity giving a false weight or measure for the [a]
commodity [weighed or measured] commits an offense.
SECTION 21. Section 13.260(a), Agriculture Code, is amended
to read as follows:
(a) A person who intentionally or knowingly issues an
official certificate of weight or measure of a [for any] commodity
without first obtaining a certificate of authority under Section
13.255 [of this code], who issues an official certificate of weight
or measure of a commodity after revocation of the person's
certificate of authority, or who issues an official certificate of
weight or measure of a commodity without executing a bond as
required under Section 13.256 [of this code] commits an offense.
SECTION 22. Sections 13.401(a), (b), (d), and (f),
Agriculture Code, are amended to read as follows:
(a) A person who has a license issued under this subchapter
may [has all of the powers and duties of a sealer under this chapter
except for]:
(1) inspect, test, maintain, and repair:
(A) a weighing or measuring device;
(B) a liquefied petroleum gas meter under
Subchapter F; or
(C) a ranch scale under Subchapter G;
(2) return an incorrect weighing or measuring device
to service under Section 13.111;
(3) prohibit an incorrect weighing or measuring device
from being used until the device is repaired, if the inspector
determines that the device can be repaired; and
(4) condemn and prohibit the further use of an
incorrect weighing or measuring device that the inspector
determines cannot be repaired [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 licensed 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.
(f) A license holder under this subchapter shall conduct
inspecting, [or] testing, prohibiting, or condemning activities in
compliance with the rules of the department.
SECTION 23. Section 13.404(a), Agriculture Code, is amended
to read as follows:
(a) The department [by rule] may [adopt a system to]
periodically monitor and inspect or test weighing or measuring
devices that have been [scales] inspected and tested by a license
holder and any standards used by the license holder during an
inspection or test.
SECTION 24. Chapter 17, Agriculture Code, is amended by
adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. MOTOR FUEL QUALITY AND TESTING
Sec. 17.071. MINIMUM MOTOR FUEL QUALITY AND TESTING
STANDARDS. The department by rule shall adopt minimum motor fuel
quality and testing standards for motor fuel that is sold or offered
for sale in this state. The standards must comply with the
nationally recognized minimum standards established by:
(1) the American Society for Testing and Materials, as
those standards existed on September 1, 2009, for motor fuels other
than motor fuels blended with ethanol; and
(2) the National Institute of Standards and
Technology, as those standards existed on September 1, 2009, other
than the standard vapor to liquid ratio specification for motor
fuels blended with ethanol.
Sec. 17.072. TESTING OF MOTOR FUEL QUALITY. (a) The
department may collect samples and conduct testing at any location
where motor fuel is kept, transferred, sold, or offered for sale, to
verify that the motor fuel complies with the minimum standards
required by Section 17.071.
(b) On arriving at a facility to conduct testing under
Subsection (a), a representative of the department shall notify the
owner or manager of the facility of the representative's presence
and purpose.
(c) A person commits an offense if the person refuses to
allow a department representative to collect samples or conduct
motor fuel testing under Subsection (a).
Sec. 17.073. STOP-SALE ORDER. If the department has reason
to believe that motor fuel is in violation of this chapter or a rule
adopted under this chapter, 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 the department determines that the
motor fuel is in compliance with this chapter and department rules.
SECTION 25. Sections 17.104(a) and (b), Agriculture Code,
are 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.
(b) The commissioner by rule may impose a fee for testing,
inspection, or the performance of other services provided as
determined necessary by the commissioner in the administration of
this chapter. A fee imposed under this subsection shall be
collected from each dealer, distributor, jobber, supplier, and
wholesaler on a periodic basis determined by the commissioner
without regard to whether the motor fuel is subject to regulation
under this chapter.
SECTION 26. Sections 17.155(a) and (b), Agriculture Code,
are amended to read as follows:
(a) The department [commissioner] may impose an
administrative penalty against a person regulated under this
chapter who violates this chapter or a rule or order adopted under
this chapter. Except as otherwise provided by this section, an
administrative penalty is imposed and collected in the manner
provided by Section 12.020.
(b) The penalty for a violation of this chapter or a rule or
order adopted under this chapter may not exceed $5,000 [$500] a day
for each violation. Each day a violation continues or occurs may be
considered a separate violation for purposes of imposing a penalty.
SECTION 27. Subchapter D, Chapter 17, Agriculture Code, is
amended by adding Section 17.156 to read as follows:
Sec. 17.156. TOLL-FREE NUMBER. The department shall
provide a toll-free telephone number for use by the public in
reporting violations of this subchapter.
SECTION 28. The following provisions of the Agriculture
Code are repealed:
(1) Section 13.004;
(2) Section 13.102;
(3) Section 13.104;
(4) Section 13.108;
(5) Section 13.109;
(6) Section 13.110;
(7) Sections 13.111(c) and (d); and
(8) Section 13.116.
SECTION 29. APPROPRIATIONS LIMITED TO REVENUE COLLECTIONS.
It is the intent of the legislature that fees, fines, and other
miscellaneous revenues as authorized and generated by this Act, at
a minimum, cover the cost of the programs authorized by this Act.
SECTION 30. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2009.
(b) Subchapter B-1, Chapter 17, Agriculture Code, as added
by this Act, takes effect January 1, 2010.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2925 was passed by the House on May 6,
2009, by the following vote: Yeas 143, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 2925 on May 28, 2009, by the following vote: Yeas 142, Nays 0,
1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2925 was passed by the Senate, with
amendments, on May 21, 2009, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor