Texas 2011 - 82nd Regular

Texas House Bill HB3502 Compare Versions

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1	1	82R21338 JE-F
2	2	By: Raymond H.B. No. 3502
3	3	Substitute the following for H.B. No. 3502:
4	4	By: Menendez C.S.H.B. No. 3502
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the regulation of crafted precious metal dealers and
10	10	dealerships; providing a criminal penalty.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. The heading to Subchapter B, Chapter 1956,
13	13	Occupations Code, is amended to read as follows:
14	14	SUBCHAPTER B. [SALE OF] CRAFTED PRECIOUS METAL [TO] DEALERS AND
15	15	DEALERSHIPS
16	16	SECTION 2. Section 1956.051, Occupations Code, is amended
17	17	to read as follows:
18	18	Sec. 1956.051. DEFINITIONS. In this subchapter:
19	19	(1) "Commission" means the Texas Commission of
20	20	Licensing and Regulation.
21	21	(2) "Crafted precious metal" means jewelry,
22	22	silverware, an art object, or another object, made wholly or partly
23	23	from precious metal, other than a coin, a bar, a [or] commemorative
24	24	medallion, or scrap or a broken item selling at not more than five
25	25	percent more than the scrap value of the item [made in whole or in
26	26	part from precious metal].
27	27	(3) [(2)] "Dealer" means a person who engages in the
28	28	business of purchasing and selling crafted precious metal,
29	29	including purchases or sales made through the mail.
30	30	(4) "Dealership" means a location at which or premises
31	31	in which a dealer conducts business.
32	32	(5) [(3)] "Department" means the Texas Department of
33	33	Licensing and Regulation [Public Safety].
34	34	(6) "Personal identification document" means a
35	35	document that contains a photograph of the seller or transferor and
36	36	is:
37	37	(A) a state driver's license;
38	38	(B) a state identification card;
39	39	(C) a passport;
40	40	(D) a military identification;
41	41	(E) a certificate of identification from the
42	42	Mexican Consulate, certificado de matricula consular; or
43	43	(F) identification issued by the agency of the
44	44	United States responsible for citizenship and immigration.
45	45	(7) [(4)] "Precious metal" means gold, silver,
46	46	platinum, palladium, iridium, rhodium, osmium, ruthenium, or an
47	47	alloy of those metals.
48	48	SECTION 3. Section 1956.060, Occupations Code, is amended
49	49	to read as follows:
50	50	Sec. 1956.060. EXCEPTION: CRAFTED PRECIOUS METAL ACQUIRED
51	51	BY PERSON LICENSED UNDER TEXAS PAWNSHOP ACT. This subchapter does
52	52	not apply to crafted precious metal acquired by a person or an
53	53	employee of a person licensed under Chapter 371, Finance Code.
54	54	SECTION 4. Subchapter B, Chapter 1956, Occupations Code, is
55	55	amended by adding Sections 1956.0611, 1956.0612, 1956.0613,
56	56	1956.0614, 1956.0615, 1956.0616, 1956.0617, 1956.0618, 1956.0619,
57	57	and 1956.06191 to read as follows:
58	58	Sec. 1956.0611. RULEMAKING. The commission may adopt rules
59	59	necessary to implement and enforce this subchapter.
60	60	Sec. 1956.0612. DEALERSHIP LICENSE REQUIRED. A person may
61	61	not engage in business as a crafted precious metal dealer unless the
62	62	person holds a dealership license.
63	63	Sec. 1956.0613. MULTIPLE PLACES OF BUSINESS. (a) A
64	64	separate dealership license is required for each place of business
65	65	operated under this subchapter.
66	66	(b) The department may issue more than one dealership
67	67	license to a person if the person complies with this subchapter for
68	68	each license.
69	69	Sec. 1956.0614. APPLICATION REQUIREMENTS. (a) An
70	70	application for a dealership license must be made to the department
71	71	and must:
72	72	(1) be under oath;
73	73	(2) state:
74	74	(A) the full name and address of the applicant;
75	75	(B) the type of business entity formed by the
76	76	applicant, if the applicant is not an individual;
77	77	(C) the full name and address of each general
78	78	partner and the type of partnership, if the applicant is a
79	79	partnership;
80	80	(D) the full name and address of each officer and
81	81	owner, if the applicant is an unincorporated association;
82	82	(E) except as provided by Subsection (b), the
83	83	full name of each officer and shareholder, if the applicant is a
84	84	corporation;
85	85	(F) the full name and address of each manager and
86	86	operator of the dealership;
87	87	(G) the location where the dealership's business
88	88	is to be conducted and:
89	89	(i) a copy of the certificate of occupancy
90	90	for the location; and
91	91	(ii) proof of the applicant's ownership of
92	92	the property or a copy of a lease agreement for the lease of the
93	93	property;
94	94	(H) the intended hours of operation of the
95	95	dealership; and
96	96	(I) other relevant information required by the
97	97	department; and
98	98	(3) state that the applicant and, if applicable, any
99	99	business partner or officer of the corporation has not had a license
100	100	revoked under this subchapter or Chapter 371, Finance Code.
101	101	(b) The full name of each shareholder is not required if the
102	102	applicant is a corporation with five or more shareholders.
103	103	(c) If an applicant is leasing the property where the
104	104	business is to be conducted, the term of the lease agreement may not
105	105	expire before the first anniversary of the date the application is
106	106	filed.
107	107	Sec. 1956.0615. FEES. (a) Except as provided by
108	108	Subsection (b), an applicant must submit with the application:
109	109	(1) an application fee of:
110	110	(A) $500, if the applicant does not hold a
111	111	license under this subchapter; or
112	112	(B) $200, if the application is for an additional
113	113	dealership license for a separate location; and
114	114	(2) an annual license fee in an amount determined by
115	115	the commission by rule.
116	116	(b) An applicant that is exempt from taxation under Section
117	117	501(c)(3), Internal Revenue Code of 1986, is exempt from the fees
118	118	required under Subsection (a).
119	119	Sec. 1956.0616. LICENSE TERM; RENEWAL. A license expires
120	120	on the first anniversary of the date of issuance and may be renewed
121	121	annually on payment of the required annual license fee.
122	122	Sec. 1956.0617. INVESTIGATION; NOTICE OF APPLICATION.
123	123	(a) On receipt of an application and the required fees, the
124	124	department shall:
125	125	(1) conduct an investigation to determine whether to
126	126	issue the license; and
127	127	(2) give notice of the application to:
128	128	(A) the Department of Public Safety; and
129	129	(B) each local law enforcement agency in the
130	130	county in which the dealership is to conduct business.
131	131	(b) The notice under Subsection (a) must state the name and
132	132	address of each person required by Section 1956.0614 to be listed on
133	133	the license application.
134	134	(c) The department shall give the Department of Public
135	135	Safety and local law enforcement agencies a reasonable period to
136	136	respond to the notice with information concerning the listed
137	137	persons or any other relevant information.
138	138	Sec. 1956.0618. NOTICE OF DENIAL; HEARING. (a) If the
139	139	department determines not to issue a license, the department shall
140	140	deliver to the applicant at the address provided in the application
141	141	a written notice by personal delivery or certified mail, return
142	142	receipt requested. The notice must include the department's reason
143	143	for denying the license.
144	144	(b) Not later than the 30th day after the date of receipt of
145	145	a notice under Subsection (a), an applicant may request a hearing on
146	146	the application denial. The department shall set the hearing not
147	147	later than the 60th day after the date of the request. A hearing
148	148	under this section is subject to Section 51.354.
149	149	(c) If the department denies the application, the
150	150	department shall retain the application fee and shall return to the
151	151	applicant the annual license fee submitted with the application.
152	152	Sec. 1956.0619. CONTENTS AND DISPLAY OF LICENSE. (a) A
153	153	license must state:
154	154	(1) the name of the dealer;
155	155	(2) the address at which the dealership conducts
156	156	business; and
157	157	(3) that the dealership is authorized to deal in
158	158	crafted precious metals.
159	159	(b) A dealer shall display a license in a conspicuous
160	160	location at the place of business provided on the license.
161	161	Sec. 1956.06191. APPLICATION FOR RELOCATION. A dealer who
162	162	wishes to move a dealership from the location authorized by a
163	163	license must file a relocation application with the department not
164	164	later than the 30th day before the date the dealer moves and pay an
165	165	application fee of $20.
166	166	SECTION 5. The heading to Section 1956.062, Occupations
167	167	Code, is amended to read as follows:
168	168	Sec. 1956.062. REPORT OF PURCHASE OR EXCHANGE REQUIRED.
169	169	SECTION 6. Section 1956.062, Occupations Code, is amended
170	170	by amending Subsections (b), (c), and (d) and adding Subsections
171	171	(c-1) and (c-2) to read as follows:
172	172	(b) Before [crafted precious metal is offered for sale or
173	173	exchange,] a dealer [must notify each person intending to sell or
174	174	exchange the metal that, before the dealer] may purchase or
175	175	exchange crafted precious metal [accept any of the person's
176	176	property], the dealer [person] must compile [file with the dealer]
177	177	a list describing all of the [person's] crafted precious metal to be
178	178	accepted by the dealer. The list must contain:
179	179	(1) the proposed seller's or transferor's name, sex,
180	180	height, date of birth, eye color, and address;
181	181	(2) the date and time of the purchase or exchange;
182	182	(3) a complete and accurate description of the crafted
183	183	precious metal, including:
184	184	(A) a serial number and year produced or
185	185	manufactured, if available; and
186	186	(B) the size, weight, material, length, number of
187	187	items, capacity, or other identifying characteristics; and
188	188	(4) [(3)] the proposed seller's or transferor's signed
189	189	certification that the information is true and complete.
190	190	(c) The dealer shall:
191	191	(1) require the proposed seller or transferor to
192	192	physically present [record] the proposed seller's or transferor's
193	193	personal identification document; and
194	194	(2) record:
195	195	(A) the type of personal identification document
196	196	presented; and
197	197	(B) the identification [driver's license] number
198	198	of the [or department] personal identification document
199	199	[certificate number on physical presentation of the license or
200	200	personal identification certificate by the seller].
201	201	(c-1) The record described by Subsection (c) must accompany
202	202	the list required by Subsection (b).
203	203	(c-2) All lists and records required by this section must be
204	204	legible.
205	205	(d) The dealer shall:
206	206	(1) provide to a peace officer or the department, on
207	207	demand, the list required by Subsection (b); and
208	208	(2) mail or deliver a complete copy of the list to the
209	209	chief of police or the sheriff as provided by Section 1956.063 not
210	210	later than 48 hours after the list is filed with the dealer.
211	211	SECTION 7. Subchapter B, Chapter 1956, Occupations Code, is
212	212	amended by adding Section 1956.0635 to read as follows:
213	213	Sec. 1956.0635. RECEIPT REQUIRED. (a) A dealer, at the
214	214	time of the sale or exchange of crafted precious metal, shall
215	215	deliver a receipt to the seller or transferor. Each receipt
216	216	delivered by the dealer must:
217	217	(1) be numbered sequentially;
218	218	(2) contain the date and time of the transaction or
219	219	acquisition; and
220	220	(3) itemize the crafted precious metal purchased or
221	221	exchanged, the price paid for the item, and the value of each item,
222	222	if melted.
223	223	(b) An accurate copy or record of the receipt shall be:
224	224	(1) maintained until the third anniversary of the date
225	225	of the sale or exchange; and
226	226	(2) available on request for inspection during
227	227	business hours by a peace officer or the department.
228	228	SECTION 8. Section 1956.064, Occupations Code, is amended
229	229	to read as follows:
230	230	Sec. 1956.064. REQUIRED RETENTION OF CRAFTED PRECIOUS
231	231	METAL. (a) A dealer may not melt, deface, alter, or dispose of
232	232	crafted precious metal that is the subject of a report required by
233	233	this subchapter before the 21st [11th] day after the date the report
234	234	is filed unless[:
235	235	[(1) the peace officer to whom the report is
236	236	submitted, for good cause, authorizes disposition of the metal;
237	237	[(2) the dealer obtains the name, address, and
238	238	description of the buyer and retains a record of that information;
239	239	or
240	240	[(3)] the dealer is a pawnbroker and the disposition
241	241	is the redemption of pledged property by the pledgor.
242	242	(b) During the hold period required by Subsection (a), the
243	243	crafted precious metal shall be stored or displayed:
244	244	(1) in the exact form received;
245	245	(2) in a manner as to be identifiable from the
246	246	description provided under Section 1956.062;
247	247	(3) in a manner as to not impede or prevent the crafted
248	248	precious metal's examination by a peace officer or the department;
249	249	and
250	250	(4) at the dealership where the crafted precious metal
251	251	was purchased or exchanged. [A dealer who retains information
252	252	under Subsection (a)(2) shall make that information available for
253	253	inspection by any peace officer.]
254	254	SECTION 9. Subchapter B, Chapter 1956, Occupations Code, is
255	255	amended by adding Section 1956.0645 to read as follows:
256	256	Sec. 1956.0645. STOLEN CRAFTED PRECIOUS METAL. (a) A
257	257	dealer or an agent or employee of a dealership shall:
258	258	(1) monitor the purchase of crafted precious metal to
259	259	identify or prevent transactions involving stolen crafted precious
260	260	metal;
261	261	(2) make reasonable efforts to avoid accepting or
262	262	purchasing stolen crafted precious metal; and
263	263	(3) immediately report to a local law enforcement
264	264	agency:
265	265	(A) an offer to sell to the dealership crafted
266	266	precious metal actually known or reasonably suspected to be stolen;
267	267	(B) the identity, if known, and the description
268	268	of the person offering to sell the metal described by Paragraph (A);
269	269	and
270	270	(C) the purchase of crafted precious metal
271	271	subsequently determined or reasonably suspected to be stolen.
272	272	(b) A dealer shall cooperate with a local law enforcement
273	273	agency regarding any matter relating to stolen crafted precious
274	274	metal and assist in the prompt resolution of an official
275	275	investigation.
276	276	SECTION 10. The heading to Section 1956.065, Occupations
277	277	Code, is amended to read as follows:
278	278	Sec. 1956.065. INSPECTION OF CRAFTED PRECIOUS METAL [BY
279	279	PEACE OFFICER].
280	280	SECTION 11. Section 1956.065(a), Occupations Code, is
281	281	amended to read as follows:
282	282	(a) A dealer shall make crafted precious metal purchased or
283	283	exchanged by the dealer available for inspection by a peace officer
284	284	or the department during regular business hours while in the
285	285	dealer's possession.
286	286	SECTION 12. Section 1956.066, Occupations Code, is amended
287	287	to read as follows:
288	288	Sec. 1956.066. PURCHASE FROM MINOR PROHIBITED. [(a)] A
289	289	dealer may not purchase crafted precious metal from a person
290	290	younger than 18 years of age [unless the seller delivers to the
291	291	dealer before the purchase a written statement from the seller's
292	292	parent or legal guardian consenting to the transaction].
293	293	[(b) The dealer shall retain the statement with the records
294	294	required to be kept under this subchapter. The dealer may destroy
295	295	the statement after the later of:
296	296	[(1) the date the item is sold; or
297	297	[(2) the first anniversary of the date the dealer
298	298	purchased the item.]
299	299	SECTION 13. Subchapter B, Chapter 1956, Occupations Code,
300	300	is amended by adding Sections 1956.0685 and 1956.0686 to read as
301	301	follows:
302	302	Sec. 1956.0685. GROUNDS FOR DENIAL, REVOCATION, OR
303	303	SUSPENSION OF LICENSE. The department may deny, revoke, or suspend
304	304	a dealership license if the dealer:
305	305	(1) violates this subchapter or a rule adopted or an
306	306	order issued under this subchapter;
307	307	(2) falsifies information on a license application; or
308	308	(3) is convicted of an offense under Section 31.03,
309	309	37.09, or 37.10, Penal Code.
310	310	Sec. 1956.0686. NOTICE OF HEARING. (a) The department
311	311	shall send written notice to the dealer of a dealership license
312	312	revocation or suspension hearing that includes the cause or
313	313	allegations of the revocation or suspension hearing.
314	314	(b) A hearing under this section is subject to Subchapter G,
315	315	Chapter 51.
316	316	SECTION 14. Section 1956.069(a), Occupations Code, is
317	317	amended to read as follows:
318	318	(a) A person commits an offense if the person violates this
319	319	subchapter [dealer commits an offense if the dealer:
320	320	[(1) fails to make or permit inspection of a report as
321	321	required by Section 1956.062 or 1956.063;
322	322	[(2) disposes of crafted precious metal or fails to
323	323	make a record available for inspection by a peace officer as
324	324	required by Section 1956.064;
325	325	[(3) fails to obtain or retain a statement as required
326	326	by Section 1956.066;
327	327	[(4) fails to file a registration statement as
328	328	required by Section 1956.067; or
329	329	[(5) purchases an object in violation of Section
330	330	1956.068].
331	331	SECTION 15. Section 215.031, Local Government Code, is
332	332	amended to read as follows:
333	333	Sec. 215.031. HAWKERS; PEDDLERS; PAWNBROKERS; CRAFTED
334	334	PRECIOUS METAL DEALERS. The governing body of the municipality may
335	335	license, tax, suppress, prevent, or otherwise regulate:
336	336	(1) hawkers;
337	337	(2) peddlers; [and]
338	338	(3) pawnbrokers; and
339	339	(4) crafted precious metal dealers.
340	340	SECTION 16. (a) As soon as practicable after the effective
341	341	date of this Act, the Texas Commission of Licensing and Regulation
342	342	shall adopt the rules and procedures necessary to implement
343	343	Subchapter B, Chapter 1956, Occupations Code, as amended by this
344	344	Act.
345	345	(b) A crafted precious metal dealer is not required to hold
346	346	a license under Subchapter B, Chapter 1956, Occupations Code, as
347	347	amended by this Act, before March 1, 2012.
348	348	(c) Section 1956.069, Occupations Code, as amended by this
349	349	Act, applies only to an offense committed on or after the effective
350	350	date of this Act. An offense committed before the effective date of
351	351	this Act is governed by the law in effect on the date the offense was
352	352	committed, and the former law is continued in effect for that
353	353	purpose. For purposes of this subsection, an offense was committed
354	354	before the effective date of this Act if any element of the offense
355	355	occurred before that date.
356	356	SECTION 17. This Act takes effect September 1, 2011.