Texas 2009 - 81st Regular

Texas Senate Bill SB2089 Compare Versions

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1	1	By: Whitmire S.B. No. 2089
2	2	(In the Senate - Filed March 13, 2009; March 31, 2009, read
3	3	first time and referred to Committee on Natural Resources;
4	4	April 30, 2009, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 10, Nays 0; April 30, 2009,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 2089 By: Seliger
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to protections provided by the Department of Agriculture
13	13	for certain consumers; providing penalties.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Subsection (a), Section 13.001, Agriculture
16	16	Code, is amended to read as follows:
17	17	(a) In this chapter:
18	18	(1) "Weight or measure of a commodity" means the
19	19	weight or measure of a commodity as determined by a weighing or
20	20	measuring device [includes a weight, scale, beam, or measure of any
21	21	kind; an instrument or mechanical device for weighing or measuring;
22	22	and an appliance or accessory connected with an instrument or
23	23	mechanical device for weighing or measuring].
24	24	(2) "Sell" includes barter or exchange.
25	25	(3) "Weighing or measuring device" ["Pump"] means:
26	26	(A) a scale; or
27	27	(B) a mechanical or electronic device used to
28	28	dispense or deliver a commodity by weight, volume, flow rate, or
29	29	other measure [a gasoline, kerosene, or diesel fuel measuring or
30	30	dispensing device].
31	31	SECTION 2. Subsection (a), Section 13.002, Agriculture
32	32	Code, is amended to read as follows:
33	33	(a) The department shall enforce the provisions of this
34	34	chapter and shall supervise all weighing or measuring devices
35	35	[weights and measures] sold or offered for sale in this state. The
36	36	department may purchase apparatus as necessary for the
37	37	administration of this chapter.
38	38	SECTION 3. Subsections (a), (c), and (d), Section 13.021,
39	39	Agriculture Code, are amended to read as follows:
40	40	(a) The legal standard for the weight or measure of a
41	41	commodity [of weights and measures] in this state is the standard
42	42	weight or measure [of weights and measures] adopted and used by the
43	43	government of the United States for that commodity. If the United
44	44	States does not provide a standard [of] weight or measure for a
45	45	commodity, the standard for that commodity is that established by
46	46	this subchapter.
47	47	(c) Except as otherwise provided by an express contract, a
48	48	contract for work or sales by weight or measure of a commodity shall
49	49	be construed in accordance with the standards of this subchapter.
50	50	(d) The standards of this subchapter shall be the guide for
51	51	making any adjustment of weighing [weights] or measuring devices
52	52	[measures] under the law of this state.
53	53	SECTION 4. Subchapter B, Chapter 13, Agriculture Code, is
54	54	amended by adding Section 13.029 to read as follows:
55	55	Sec. 13.029. EXEMPTION OF WEIGHING OR MEASURING DEVICES.
56	56	The department by rule may exempt a weighing or measuring device
57	57	from a requirement established by this chapter if the department
58	58	determines that imposing or enforcing the requirement:
59	59	(1) is not cost-effective for the department;
60	60	(2) is not feasible with current resources or
61	61	standards; or
62	62	(3) will not substantially benefit or protect
63	63	consumers.
64	64	SECTION 5. Sections 13.036, 13.037, and 13.039, Agriculture
65	65	Code, are amended to read as follows:
66	66	Sec. 13.036. FALSE REPRESENTATION OF COMMODITY QUANTITY. A
67	67	person commits an offense if the person or the person's servant or
68	68	agent:
69	69	(1) sells or offers or exposes for sale a quantity of a
70	70	commodity or service that is less than the quantity the person
71	71	represents; or
72	72	(2) as a buyer furnishing the weight or measure of a
73	73	commodity or service by which the amount of the [a] commodity or
74	74	service is determined, takes or attempts to take more than the
75	75	quantity the person represents.
76	76	Sec. 13.037. USE OF INCORRECT WEIGHING [FALSE WEIGHT] OR
77	77	MEASURING DEVICE [MEASURE]. (a) A person commits an offense if
78	78	the person or the person's servant or agent uses an incorrect
79	79	weighing [a false weight] or measuring device [measure] in:
80	80	(1) buying or selling a commodity;
81	81	(2) computing a charge for services rendered on the
82	82	basis of weight or measure; or
83	83	(3) determining the weight or measure of a commodity,
84	84	if a charge is made for the determination.
85	85	(b) For the purpose of this section, a weighing [weight] or
86	86	measuring device [measure] is incorrect [false] if it:
87	87	(1) does not conform as closely as practicable to the
88	88	official standards;
89	89	(2) is not accurate;
90	90	(3) is of a construction that is not reasonably
91	91	permanent in adjustment or does not correctly repeat its
92	92	indications;
93	93	(4) facilitates the perpetration of fraud; or
94	94	(5) does not conform to the specifications and
95	95	tolerances established by the department under Section 13.114 [of
96	96	this code].
97	97	Sec. 13.039. TESTING OF PACKAGE BY DEPARTMENT [SEALER].
98	98	(a) The department [A sealer appointed under Subchapter C of this
99	99	chapter] shall from time to time weigh or measure a package[,] or an
100	100	amount of any commodity[,] that is kept or offered for sale, sold,
101	101	or in the process of delivery, in order to determine:
102	102	(1) if the commodity is of the amount or quantity
103	103	represented; or
104	104	(2) if the commodity is being offered for sale or sold
105	105	in accordance with law.
106	106	(b) If the department [a sealer] finds that a package or any
107	107	lot of a commodity contains less of the commodity than the amount
108	108	represented, the department [sealer] may seize the package or the
109	109	commodity as evidence.
110	110	(c) A person commits an offense if the person or the
111	111	person's employee or agent refuses to exhibit a commodity being
112	112	sold or offered for sale at a given weight or quantity, or
113	113	ordinarily sold in that manner, to the department [a sealer] for
114	114	testing and proving as to quantity.
115	115	SECTION 6. The heading to Subchapter C, Chapter 13,
116	116	Agriculture Code, is amended to read as follows:
117	117	SUBCHAPTER C. INSPECTION AND REGISTRATION OF WEIGHING OR MEASURING
118	118	DEVICES [WEIGHTS AND MEASURES]
119	119	SECTION 7. Section 13.101, Agriculture Code, is amended to
120	120	read as follows:
121	121	Sec. 13.101. REQUIRED INSPECTION. (a) At least once every
122	122	four years, or more often as required by the department, a weighing
123	123	[weight] or measuring device [measure] shall be inspected and
124	124	tested for correctness by the department [a sealer] if it:
125	125	(1) is kept for sale, sold, or used by a proprietor,
126	126	agent, lessee, or employee in proving the weight or measure,
127	127	including the size, quantity, extent, or area, of any item; or
128	128	(2) is purchased, offered, or submitted by a
129	129	proprietor, agent, lessee, or employee for sale, hire, or award.
130	130	(b) The department shall, to the extent necessary to ensure
131	131	compliance with the official standards, require additional
132	132	inspection and testing of weighing or measuring devices [weights
133	133	and measures].
134	134	(c) A person who uses or keeps for use, or has or offers for
135	135	sale, a weighing [weight] or measuring device [measure] is
136	136	responsible for having the device [weight or measure] inspected and
137	137	tested as required by this section.
138	138	(d) Unless the department requires an additional
139	139	inspection, a weighing [weight] or measuring device [measure] that
140	140	is inspected and found correct by the department [a sealer] may be
141	141	kept for use, used, kept or offered for sale, or sold without
142	142	further testing.
143	143	(e) The department may inspect and test a weighing or
144	144	measuring device less frequently than required by Subsection (a):
145	145	(1) to accommodate complaint-based and risk-based
146	146	inspection schedules; or
147	147	(2) in response to an emergency or a limitation in
148	148	department funding.
149	149	SECTION 8. Subsections (a) and (c), Section 13.1011,
150	150	Agriculture Code, are amended to read as follows:
151	151	(a) A person who operates a weighing or measuring [pump,
152	152	scale, or bulk or liquefied petroleum gas metering] device for a
153	153	commercial transaction shall [must] register annually with the
154	154	department.
155	155	(c) If a person fails to register as required by this
156	156	section and pay the fee required under Section 13.1151 [of this
157	157	code], the department may assess a late fee against the person,
158	158	prohibit the operation of the weighing or measuring [pump, scale,
159	159	or metering] device, or both assess the fee and prohibit the
160	160	operation of the [pump, scale, or metering] device.
161	161	SECTION 9. Subsection (e), Section 13.1012, Agriculture
162	162	Code, is amended to read as follows:
163	163	(e) The department may conduct an inspection of an
164	164	applicant's or registrant's:
165	165	(1) facilities;
166	166	(2) inspecting and testing equipment and procedures;
167	167	(3) repair and calibration equipment, records, and
168	168	procedures; and
169	169	(4) transportation equipment.
170	170	SECTION 10. The heading to Section 13.111, Agriculture
171	171	Code, is amended to read as follows:
172	172	Sec. 13.111. REPAIR OR DESTRUCTION OF INCORRECT WEIGHING
173	173	[WEIGHTS] OR MEASURING DEVICES [MEASURES].
174	174	SECTION 11. Subsections (a) and (b), Section 13.111,
175	175	Agriculture Code, are amended to read as follows:
176	176	(a) If, in the judgment of the department [sealer], a
177	177	weighing [weight] or measuring device [measure] found to be
178	178	incorrect is not capable of being repaired, the department [sealer]
179	179	may condemn, seize, and destroy the device [weight or measure].
180	180	(b) If, in the judgment of the department [sealer], an
181	181	incorrect weighing [weight] or measuring device [measure] is
182	182	capable of being repaired, the department [sealer] shall place on
183	183	the device [weight or measure] a tag or other mark with the words
184	184	"Out of Order." The owner or user of the weighing [weight] or
185	185	measuring device [measure] may have it repaired within 30 days, but
186	186	may not use or dispose of it until it is reinspected and released
187	187	for use by the department or inspected and released for use in any
188	188	other manner authorized by department rule [sealed. After repair,
189	189	the owner or user shall notify the sealer and the sealer shall
190	190	reinspect the weight or measure. If it is found to be correct, the
191	191	sealer shall remove the out-of-order tag and seal the weight or
192	192	measure as provided by Section 13.110 of this code].
193	193	SECTION 12. Section 13.112, Agriculture Code, is amended to
194	194	read as follows:
195	195	Sec. 13.112. TESTS FOR STATE INSTITUTIONS. As requested by
196	196	the comptroller or the governing body of a state institution, the
197	197	department shall test each weighing [weight] or measuring device
198	198	[measure] used by a state institution for any purpose, including a
199	199	weighing or measuring device [weight or measure] used in checking
200	200	the receipt and distribution of supplies. The department shall
201	201	report results of the test to the chairman of the governing body of
202	202	the institution.
203	203	SECTION 13. Subsections (a), (c), (d), and (e), Section
204	204	13.113, Agriculture Code, are amended to read as follows:
205	205	(a) The standards of weights and measures received from the
206	206	United States and certified by the National Institute of Standards
207	207	and Technology are the state's standards by which all state and
208	208	local standards of weights and measures are tried, authenticated,
209	209	proved, and certified [sealed].
210	210	(c) In addition to the standards kept by the state, the
211	211	department shall maintain a complete set of copies of the original
212	212	standards for use in adjusting local standards or in the
213	213	performance of other official duties. The department may purchase
214	214	additional sets of standards as necessary for use by a department
215	215	inspector or other department personnel [state sealers].
216	216	(d) At the request of a city, the department shall furnish
217	217	the city with copies of the state's standards or test and approve
218	218	other standards acquired by the city. The city shall reimburse the
219	219	state for the actual cost of the standards furnished, plus the costs
220	220	of freight and certification. All standards furnished to or tested
221	221	for a city shall be true and correct, [sealed and] certified by the
222	222	department [commissioner], and stamped with the letter "C". The
223	223	copies used by a city may be of any suitable material or
224	224	construction that the city requests, subject to approval by the
225	225	department.
226	226	(e) The department shall inspect and correct the standards
227	227	used by a department inspector, other department employee, or
228	228	individual or business licensed by the department to perform
229	229	private maintenance, repairs, or calibration of weighing or
230	230	measuring devices [a local sealer] at least once every year [two
231	231	years]. The department shall keep a record of the inspection and
232	232	character of weights and measures inspected under this subsection.
233	233	[The city shall pay all expenses incurred in inspections under this
234	234	subsection.]
235	235	SECTION 14. Subsection (a), Section 13.114, Agriculture
236	236	Code, is amended to read as follows:
237	237	(a) The department shall establish tolerances and
238	238	specifications for commercial weighing or [and] measuring devices
239	239	[apparatus] used in this state. The tolerances and specifications
240	240	shall be similar to those recommended by the National Institute of
241	241	Standards and Technology.
242	242	SECTION 15. Subsections (a) and (f), Section 13.115,
243	243	Agriculture Code, are amended to read as follows:
244	244	(a) The department shall collect a fee in accordance with
245	245	this section for each test of a weighing [weight] or measuring
246	246	device [measure] required by this subchapter or performed on
247	247	request of the owner.
248	248	(f) The department shall charge a fee, as provided by
249	249	department rule, for precision testing of tapes, rules, glassware,
250	250	and other weighing or measuring devices performed by the
251	251	department's metrology laboratory.
252	252	SECTION 16. Sections 13.1151, 13.117, 13.118, and 13.119,
253	253	Agriculture Code, are amended to read as follows:
254	254	Sec. 13.1151. FEES FOR REGISTRATION AND INSPECTION. The
255	255	department may charge the owner or operator of a weighing or
256	256	measuring device a fee, as provided by department rule, to recover
257	257	the costs of registration and inspection of a weighing or [pump,
258	258	scale, bulk or liquefied petroleum gas metering device, or other]
259	259	measuring [or dispensing] device required to be registered or
260	260	inspected under this chapter.
261	261	Sec. 13.117. REFUSING TO ALLOW [PERMIT] TEST OF WEIGHING
262	262	[WEIGHT] OR MEASURING DEVICE [MEASURE]. A person commits an
263	263	offense if the person neglects or refuses to allow [exhibit] a
264	264	weighing [weight] or measuring device [measure] under the person's
265	265	control or in the person's possession to be inspected, tested, or
266	266	examined by the department and the inspection, test, or examination
267	267	is required by this chapter [or a sealer for inspection or
268	268	examination as required by law].
269	269	Sec. 13.118. HINDERING DEPARTMENT PERSONNEL [SEALER]. A
270	270	person commits an offense if the person hinders or obstructs in any
271	271	way the department, a department inspector or other department
272	272	personnel [a sealer] in the performance of official duties.
273	273	Sec. 13.119. REMOVAL OF REGISTRATION [SEALER'S] TAG. A
274	274	person commits an offense if the person removes or obliterates a tag
275	275	or device placed on a weighing [weight] or measuring device
276	276	[measure] under this chapter [Section 13.110 or 13.111 of this
277	277	code].
278	278	SECTION 17. Sections 13.120 and 13.121, Agriculture Code,
279	279	are amended to read as follows:
280	280	Sec. 13.120. SALE OR USE OF INCORRECT WEIGHING [FALSE
281	281	WEIGHTS] OR MEASURING DEVICE [MEASURES]. (a) The department may
282	282	condemn and prohibit the sale or distribution of any incorrect
283	283	weighing [false weight] or measuring device [measure] that is sold,
284	284	offered for sale, or about to be sold in this state.
285	285	(b) A person commits an offense if the person or the
286	286	person's servant or agent:
287	287	(1) offers or exposes for sale, hire, or award or sells
288	288	an incorrect weighing [a false weight] or measuring device
289	289	[measure];
290	290	(2) possesses an incorrect weighing [a false weight]
291	291	or measuring device [measure]; or
292	292	(3) sells, offers for sale, uses, or possesses for the
293	293	purpose of sale or use a device or instrument to be used to falsify
294	294	or intended to falsify a weight or measure.
295	295	[(c) In this section, "false weight or measure" has the
296	296	meaning assigned by Section 13.037 of this code.]
297	297	Sec. 13.121. DISPOSING OF CONDEMNED WEIGHING OR MEASURING
298	298	DEVICE [WEIGHT]. A person commits an offense if the person or the
299	299	person's servant or agent disposes of a weighing [weight] or
300	300	measuring device [measure] condemned under Section 13.111 or 13.120
301	301	[of this code] in a manner contrary to those sections.
302	302	SECTION 18. Subsection (b), Section 13.253, Agriculture
303	303	Code, is amended to read as follows:
304	304	(b) An elected county public weigher must obtain a
305	305	certificate of authority as provided by Section 13.255 [of this
306	306	code] and must execute a bond as provided by Section 13.256 [of this
307	307	code] before issuing an official certificate of weight or measure
308	308	of a commodity. A county public weigher elected under this section
309	309	is subject to rules adopted by the commissioners court.
310	310	SECTION 19. Subsection (a), Section 13.257, Agriculture
311	311	Code, is amended to read as follows:
312	312	(a) On each certificate of weight or measure of a commodity
313	313	that a public weigher or deputy public weigher issues, the public
314	314	weigher or deputy public weigher shall include the:
315	315	(1) time and date that the weight or measure of the
316	316	commodity [measurement] was taken;
317	317	(2) signature and license number of the public weigher
318	318	or deputy public weigher; and
319	319	(3) seal of the department.
320	320	SECTION 20. Subsection (a), Section 13.259, Agriculture
321	321	Code, is amended to read as follows:
322	322	(a) A public weigher or deputy public weigher who
323	323	intentionally or knowingly issues a certificate of weight or
324	324	measure of a commodity giving a false weight or measure for the [a]
325	325	commodity [weighed or measured] commits an offense.
326	326	SECTION 21. Subsection (a), Section 13.260, Agriculture
327	327	Code, is amended to read as follows:
328	328	(a) A person who intentionally or knowingly issues an
329	329	official certificate of weight or measure of a [for any] commodity
330	330	without first obtaining a certificate of authority under Section
331	331	13.255 [of this code], who issues an official certificate of weight
332	332	or measure of a commodity after revocation of the person's
333	333	certificate of authority, or who issues an official certificate of
334	334	weight or measure of a commodity without executing a bond as
335	335	required under Section 13.256 [of this code] commits an offense.
336	336	SECTION 22. Subsections (a), (b), (d), and (f), Section
337	337	13.401, Agriculture Code, are amended to read as follows:
338	338	(a) A person who has a license issued under this subchapter
339	339	may [has all of the powers and duties of a sealer under this chapter
340	340	except for]:
341	341	(1) inspect, test, maintain, and repair:
342	342	(A) a weighing or measuring device;
343	343	(B) a liquefied petroleum gas meter under
344	344	Subchapter F; or
345	345	(C) a ranch scale under Subchapter G;
346	346	(2) return an incorrect weighing or measuring device
347	347	to service under Section 13.111;
348	348	(3) prohibit an incorrect weighing or measuring device
349	349	from being used until the device is repaired, if the inspector
350	350	determines that the device can be repaired; and
351	351	(4) condemn and prohibit the further use of an
352	352	incorrect weighing or measuring device that the inspector
353	353	determines cannot be repaired [testing of a package under Section
354	354	13.039;
355	355	[(2) peace officer status under Section 13.108(b); and
356	356	[(3) entering premises or conducting a stop under
357	357	Section 13.108(c)].
358	358	(b) It is a defense to prosecution under Section 13.117 or
359	359	13.118 that the licensed inspector [sealer] is acting under the
360	360	authority of a license issued under this subchapter.
361	361	(d) Unless appointed an inspector [a sealer] under
362	362	Subchapter C, a person may not perform the functions of an inspector
363	363	[a sealer] without a license issued under this subchapter.
364	364	(f) A license holder under this subchapter shall conduct
365	365	inspecting, [or] testing, prohibiting, or condemning activities in
366	366	compliance with the rules of the department.
367	367	SECTION 23. Subsection (a), Section 13.404, Agriculture
368	368	Code, is amended to read as follows:
369	369	(a) The department [by rule] may [adopt a system to]
370	370	periodically monitor and inspect or test weighing or measuring
371	371	devices that have been [scales] inspected and tested by a license
372	372	holder and any standards used by the license holder during an
373	373	inspection or test.
374	374	SECTION 24. Chapter 17, Agriculture Code, is amended by
375	375	adding Subchapter B-1 to read as follows:
376	376	SUBCHAPTER B-1. MOTOR FUEL QUALITY AND TESTING
377	377	Sec. 17.071. MINIMUM MOTOR FUEL QUALITY AND TESTING
378	378	STANDARDS. The department by rule shall adopt minimum motor fuel
379	379	quality and testing standards for motor fuel that is sold or offered
380	380	for sale in this state. The standards must comply with the
381	381	nationally recognized minimum standards established by:
382	382	(1) the American Society for Testing and Materials, as
383	383	those standards existed on September 1, 2009, for motor fuels other
384	384	than motor fuels blended with ethanol; and
385	385	(2) the National Institute of Standards and
386	386	Technology, as those standards existed on September 1, 2009, for
387	387	motor fuels blended with ethanol.
388	388	Sec. 17.072. TESTING OF MOTOR FUEL QUALITY. (a) The
389	389	department may collect samples and conduct testing at any location
390	390	where motor fuel is kept, transferred, sold, or offered for sale, to
391	391	verify that the motor fuel complies with the minimum standards
392	392	required by Section 17.071.
393	393	(b) On arriving at a facility to conduct testing under
394	394	Subsection (a), a representative of the department shall notify the
395	395	owner or manager of the facility of the representative's presence
396	396	and purpose.
397	397	(c) A person commits an offense if the person refuses to
398	398	allow a department representative to collect samples or conduct
399	399	motor fuel testing under Subsection (a).
400	400	Sec. 17.073. STOP-SALE ORDER. If the department has reason
401	401	to believe that motor fuel is in violation of this chapter or a rule
402	402	adopted under this chapter, the department may issue and enforce a
403	403	written order to stop the sale of the motor fuel. The department
404	404	shall present the order to the dealer, distributor, jobber,
405	405	supplier, or wholesaler who is in control of the motor fuel at the
406	406	time the motor fuel is tested. The person who receives the order
407	407	may not sell the motor fuel until the department determines that the
408	408	motor fuel is in compliance with this chapter and department rules.
409	409	SECTION 25. Subsections (a) and (b), Section 17.104,
410	410	Agriculture Code, are amended to read as follows:
411	411	(a) The commissioner may adopt rules consistent with this
412	412	chapter for the regulation of the sale of motor fuels, including
413	413	motor fuels that contain [containing] ethanol and methanol.
414	414	(b) The commissioner by rule may impose a fee for testing,
415	415	inspection, or the performance of other services provided as
416	416	determined necessary by the commissioner in the administration of
417	417	this chapter. A fee imposed under this subsection shall be
418	418	collected from each dealer, distributor, jobber, supplier, and
419	419	wholesaler on a periodic basis determined by the commissioner
420	420	without regard to whether the motor fuel is subject to regulation
421	421	under this chapter.
422	422	SECTION 26. Subsections (a) and (b), Section 17.155,
423	423	Agriculture Code, are amended to read as follows:
424	424	(a) The department [commissioner] may impose an
425	425	administrative penalty against a person regulated under this
426	426	chapter who violates this chapter or a rule or order adopted under
427	427	this chapter. Except as otherwise provided by this section, an
428	428	administrative penalty is imposed and collected in the manner
429	429	provided by Section 12.020.
430	430	(b) The penalty for a violation of this chapter or a rule or
431	431	order adopted under this chapter may not exceed $5,000 [$500] a day
432	432	for each violation. Each day a violation continues or occurs may be
433	433	considered a separate violation for purposes of imposing a penalty.
434	434	SECTION 27. Subchapter D, Chapter 17, Agriculture Code, is
435	435	amended by adding Section 17.156 to read as follows:
436	436	Sec. 17.156. TOLL-FREE NUMBER. The department shall
437	437	provide a toll-free telephone number for use by the public in
438	438	reporting violations of this subchapter.
439	439	SECTION 28. The following provisions of the Agriculture
440	440	Code are repealed:
441	441	(1) Section 13.004;
442	442	(2) Section 13.102;
443	443	(3) Section 13.104;
444	444	(4) Section 13.108;
445	445	(5) Section 13.109;
446	446	(6) Section 13.110;
447	447	(7) Subsections (c) and (d), Section 13.111; and
448	448	(8) Section 13.116.
449	449	SECTION 29. This Act takes effect September 1, 2009.
450	450	* * * * *