CHAPTER 501. HAZARDOUS SUBSTANCES
HEALTH AND SAFETY CODE
TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES
SUBTITLE D. HAZARDOUS SUBSTANCES
CHAPTER 501. HAZARDOUS SUBSTANCES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 501.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Health.
(2) "Commerce" includes the operation of a business or service
establishment and other commerce in this state that is subject to
the jurisdiction of this state.
(3) "Commissioner" means the commissioner of public health.
(4) "Department" means the Texas Department of Health.
(5) "Label" means a display of written, printed, or other
graphic matter:
(A) on the immediate container, excluding the package liner, of
any substance; or
(B) directly on the article or on a tag or other suitable
material affixed to the article, if the article is unpackaged or
not packaged in an immediate container intended or suitable for
delivery to the ultimate consumer.
(6) "Misbranded hazardous substance" means either of the
following that is not properly packaged or does not bear a proper
label required by this chapter:
(A) a hazardous substance; or
(B) a toy or other article intended for use by children that
bears or contains a hazardous substance in a manner that is
accessible by a child to whom the toy or other article is
entrusted, intended, or packaged in a form suitable for use in a
household or by children.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 1, eff. Sept. 1,
2001.
Sec. 501.002. HAZARDOUS SUBSTANCE DESCRIBED. (a) A hazardous
substance is:
(1) a substance or mixture of substances that is toxic,
corrosive, extremely flammable, flammable, combustible, an
irritant, or a strong sensitizer, or that generates pressure
through decomposition, heat, or other means, if the substance or
mixture of substances may cause substantial personal injury or
substantial illness during or as a proximate result of any
customary or reasonably foreseeable handling or use, including
reasonably foreseeable ingestion by children;
(2) a toy or other article, other than clothing, that is
intended for use by a child and that presents an electrical,
mechanical, or thermal hazard; or
(3) a radioactive substance designated as a hazardous substance
under Section 501.003.
(b) A substance is corrosive if, when in contact with living
tissue, it causes destruction of that tissue by chemical action.
A chemical action on an inanimate surface is not corrosive for
the purpose of this section.
(c) An article is an electrical hazard if, in normal use or when
subjected to reasonably foreseeable damage or abuse, it may
cause, because of its design or manufacture, personal injury or
illness by electric shock.
(d) A substance or article is extremely flammable, flammable, or
combustible if it is defined as extremely flammable, flammable,
or combustible by rule of the board. The board shall define the
terms as they are defined by the Federal Hazardous Substances Act
(15 U.S.C. Section 1261 et seq.), as amended, and by federal
regulations adopted under that Act. The terms each have the
meaning assigned by the Federal Hazardous Substances Act (15
U.S.C. Section 1261 et seq.) and by federal regulations adopted
under that Act, as of September 1, 2001.
(e) A substance is an irritant if it is noncorrosive and if, on
immediate, prolonged, or repeated contact with normal living
tissue, it induces a local inflammatory reaction.
(f) An article is a mechanical hazard if, in normal use or when
subjected to reasonably foreseeable damage or abuse, it presents,
because of its design or manufacture, an unreasonable risk of
personal injury or illness:
(1) from fracture, fragmentation, or disassembly of the article;
(2) from propulsion of the article or a part or accessory of the
article;
(3) from points or other protrusions, surfaces, edges, openings,
or closures;
(4) from moving parts;
(5) from lack or insufficiency of controls to reduce or stop
motion;
(6) as a result of self-adhering characteristics of the article;
(7) because the article or a part or accessory of the article
may be aspirated or ingested;
(8) because of instability; or
(9) because of any other aspect of the article's design or
manufacture.
(g) A substance is radioactive if it emits ionizing radiation.
(h) A substance is a strong sensitizer if, when on normal living
tissue, it causes, through an allergic or photodynamic process, a
hypersensitivity that becomes evident on reapplication of the
same substance.
(i) An article is a thermal hazard if, in normal use or when
subject to reasonably foreseeable damage or abuse, it presents,
because of its design or manufacture, an unreasonable risk of
personal injury or illness because of heat, including heat from
heated parts, substances, or surfaces.
(j) A substance is toxic if it is capable of producing personal
injury or illness to any person through ingestion, inhalation, or
absorption through any body surface and it is not radioactive.
(k) The following are not hazardous substances:
(1) a pesticide subject to Chapter 76, Agriculture Code, or to
the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 135 et seq.);
(2) a food, drug, or cosmetic subject to the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 301 et seq.) or Chapter 431
(Texas Food, Drug, and Cosmetic Act);
(3) a beverage complying with or subject to the Federal Alcohol
Administration Act (27 U.S.C. Section 201 et seq.);
(4) a substance intended for use as fuel that is stored in a
container and used in the heating, cooking, or refrigeration
system of a private residence; and
(5) source material, special nuclear material, or by-product
material as defined in the Atomic Energy Act of 1954 (42 U.S.C.
Chapter 23) and regulations issued under that Act by the Atomic
Energy Commission.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 2, eff. Sept. 1,
2001.
Sec. 501.003. DESIGNATION OF RADIOACTIVE SUBSTANCE AS HAZARDOUS.
The board by rule shall designate a radioactive substance to be
a hazardous substance if, with respect to the substance as used
in a particular class of article or as packaged, the board finds
that the substance is sufficiently hazardous as to require
labeling as a hazardous substance under this chapter in order to
protect the public health.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 501.004. DESIGNATION OF STRONG SENSITIZER. Before
designating a substance as a strong sensitizer, the department
must determine that the substance has a significant potential for
causing hypersensitivity considering the frequency of occurrence
and the severity of the reaction.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 501.005. EXCLUSION. This chapter does not apply to the
manufacture, distribution, sale, or use of diapers.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER B. REGULATION OF SUBSTANCES
Sec. 501.021. FLAMMABILITY STANDARDS; DETERMINATION OF
FLAMMABILITY. (a) The board by rule shall establish the methods
for determining the flammability of solids, fabrics, children's
clothing, household furnishings, and the contents of
self-pressurized containers that the board finds are generally
applicable to those materials or containers.
(b) The board by rule shall establish flammability standards for
articles described by Subsection (a). The standards must conform
to standards prescribed by federal regulations adopted under the
federal Flammable Fabrics Act (15 U.S.C. Section 1191 et seq.),
as amended, the Federal Hazardous Substances Act (15 U.S.C.
Section 1261 et seq.), as amended, and the federal Consumer
Product Safety Act (15 U.S.C. Section 2051 et seq.), as amended.
Until the board adopts standards, the flammability standards for
articles described by Subsection (a) are the standards prescribed
by federal regulations adopted under the federal Flammable
Fabrics Act (15 U.S.C. Section 1191 et seq.), the Federal
Hazardous Substances Act (15 U.S.C. Section 1261 et seq.), and
the federal Consumer Product Safety Act (15 U.S.C. Section 2051
et seq.) as of September 1, 2001.
(c) The department may obtain samples of articles described by
Subsection (a) and determine the flammability of the articles for
compliance with applicable standards established under this
section.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 3, eff. Sept. 1,
2001.
Sec. 501.022. DESIGNATION OF BANNED HAZARDOUS SUBSTANCES. (a)
The board by rule shall designate as a banned hazardous substance
any article, including clothing intended for the use of children,
that is not properly packaged or that does not comply with
applicable flammability standards established by the board. The
board's determination that articles of clothing of a specified
range of sizes are intended for the use of a child 14 years of
age or younger is conclusive.
(b) The board by rule shall designate as a banned hazardous
substance any toy or other article, other than clothing, intended
for the use of children that is a hazardous substance or bears or
contains a hazardous substance in a manner accessible by a child
to whom the toy or other article is entrusted.
(c) The board by rule shall designate as a banned hazardous
substance any hazardous substance intended or packaged in a form
suitable for use in a household that, notwithstanding cautionary
labeling required by this chapter, is potentially so dangerous or
hazardous when present or used in a household that the protection
of the public health and safety may be adequately served only by
keeping the substance out of commerce.
(d) The board by rule shall designate as a banned hazardous
substance any article subject to this chapter that cannot be
labeled adequately to protect the public health and safety or
that presents an imminent danger to the public health and safety.
(e) This section does not apply to a toy or article such as a
chemical set that because of its functional purpose requires the
inclusion of a hazardous substance or necessarily presents an
electrical, mechanical, or thermal hazard if the toy or article:
(1) bears labeling that in the judgment of the board gives
adequate directions and warnings for safe use; and
(2) is intended for use by children who have attained sufficient
maturity and may reasonably be expected to read and heed those
directions and warnings.
(f) This section does not apply to the manufacture, sale,
distribution, or use of fireworks of any class.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 4, eff. Sept. 1,
2001.
Sec. 501.023. GENERAL LABELING AND PACKAGING REQUIREMENTS. (a)
The department shall ensure that each hazardous substance is
labeled sufficiently to inform its user of the dangers involved
in using, storing, or handling the substance, of actions to be
taken or avoided, and to give instructions as necessary for
proper first aid treatment. The department shall develop labeling
instructions consistent with and in conformity with federal
requirements.
(b) A statement required by Subsection (a) must be located
prominently and written in English in conspicuous and legible
type that contrasts in typography, layout, or color with other
printed matter on the label. The department may also require the
statement to be written in Spanish.
(c) The statement must also appear:
(1) on the outside container or wrapper of a substance and on a
container sold separately and intended for the storage of a
hazardous substance unless the statement required by Subsection
(a) is easily legible through the outside container or wrapper;
and
(2) on all accompanying literature containing directions for
use, whether written or in other form.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 5, eff. Sept. 1,
2001.
Sec. 501.0231. LABELING OF CERTAIN TOYS AND GAMES. (a) Toys or
games intended for use by children, including the parts of those
toys or games, shall be labeled in the manner required by rule of
the board. The board's rules under this subsection shall be
consistent with federal guidelines and regulations adopted under
the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
seq.), as amended. Until the board adopts rules under this
subsection, the toys, games, and parts shall be labeled in the
manner required by federal guidelines and regulations adopted
under the Federal Hazardous Substances Act (15 U.S.C. Section
1261 et seq.) as of September 1, 2001.
(b) Latex balloons, small balls, marbles, and any toy or game
that contains such a balloon, ball, or marble shall be labeled in
the manner required by rule of the board. The board's rules under
this subsection shall be consistent with federal guidelines and
regulations adopted under the Federal Hazardous Substances Act
(15 U.S.C. Section 1261 et seq.), as amended. Until the board
adopts rules under this subsection, latex balloons, small balls,
marbles, and any toy or game that contains such a balloon, ball,
or marble shall be labeled in the manner required by federal
guidelines and regulations adopted under the Federal Hazardous
Substances Act (15 U.S.C. Section 1261 et seq.) as of September
1, 2001.
Added by Acts 2001, 77th Leg., ch. 360, Sec. 6, eff. Sept. 1,
2001.
Sec. 501.0232. REVIEW AND LABELING OF HAZARDOUS ART MATERIALS.
(a) Art materials shall be reviewed by a toxicologist.
(b) Art materials shall be labeled in the manner required by
rule of the board. The board's rules under this subsection shall
be consistent with the Federal Hazardous Substances Act (15
U.S.C. Section 1261 et seq.), as amended, and federal regulations
adopted under that Act. Until the board adopts rules under this
subsection, art materials shall be labeled in the manner required
by the Federal Hazardous Substances Act (15 U.S.C. Section 1261
et seq.), and federal regulations adopted under that Act, as of
September 1, 2001.
Added by Acts 2001, 77th Leg., ch. 360, Sec. 6, eff. Sept. 1,
2001.
Sec. 501.0233. PACKAGING OF HAZARDOUS SUBSTANCES. Hazardous
substances shall be packaged in the manner required by special
packaging rules adopted by the board. The board's rules under
this section shall be consistent with federal special packaging
regulations adopted under the federal Poison Prevention Packaging
Act of 1970 (15 U.S.C. Section 1471 et seq.), as amended. Until
the board adopts rules under this section, hazardous substances
shall be packaged in the manner required by federal special
packaging regulations adopted under the federal Poison Prevention
Packaging Act of 1970 (15 U.S.C. Section 1471 et seq.), as of
September 1, 2001.
Added by Acts 2001, 77th Leg., ch. 360, Sec. 6, eff. Sept. 1,
2001.
Sec. 501.024. REGISTRATION. (a) A person who manufactures,
imports, or repacks a hazardous substance that is distributed in
this state or who distributes a hazardous substance in this state
under the person's private brand name shall have on file with the
department a registration statement as provided by this section.
(b) The board by rule shall detail the registration requirements
and prescribe the contents of the registration statement.
(c) The person must file the registration statement with the
department:
(1) before beginning business in this state as a manufacturer,
importer, repacker, or distributor of a hazardous substance; and
(2) in each succeeding year that the person continues the
business in this state, not later than the anniversary of the
initial filing.
(d) The initial registration statement and each annual
registration statement must be accompanied by a fee prescribed by
the board.
(e) The department, after notice and hearing, may refuse to
register or may cancel, revoke, or suspend the registration of a
person who manufactures, imports, repacks, or distributes a
hazardous substance if the person fails to comply with the
requirements of this chapter.
(f) A hazardous substance is subject to seizure and disposition
under Section 501.033 if the person who manufactures, imports,
repacks, or distributes the hazardous substance does not, after
notice by the department, register with the department and make
timely payment of the fee under this section.
(g) This section does not apply to a retailer who distributes a
hazardous substance to the general public unless the retailer
distributes a hazardous substance made to its specifications.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 7, eff. Sept. 1,
2001.
Sec. 501.025. RULES. The board may adopt reasonable rules
necessary for the efficient administration and enforcement of
this chapter. The rules must conform with regulations adopted
under the Federal Hazardous Substances Act (15 U.S.C. Section
1261 et seq.), as amended, the federal Consumer Product Safety
Act (15 U.S.C. Section 2051 et seq.), as amended, the federal
Flammable Fabrics Act (15 U.S.C. Section 1191 et seq.), as
amended, and the federal Poison Prevention Packaging Act of 1970
(15 U.S.C. Section 1471 et seq.), as amended, as applicable.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 8, eff. Sept. 1,
2001.
Sec. 501.026. FEES. The board by rule shall set reasonable
registration fees in an amount designed to recover not more than
the costs to the department of administering, monitoring
compliance with, enforcing, and conducting tests under this
chapter.
Added by Acts 2001, 77th Leg., ch. 360, Sec. 9, eff. Sept. 1,
2001.
SUBCHAPTER C. ENFORCEMENT
Sec. 501.031. EXAMINATIONS AND INVESTIGATIONS. (a) To enforce
this chapter, an officer, employee, or agent of the department,
on the presentation of appropriate credentials to the owner,
operator, or agent, at reasonable times may enter a factory,
warehouse, or establishment in which a hazardous substance is
manufactured, processed, packaged, or held for introduction into
commerce in this state or in which a hazardous substance is held
after introduction into commerce, or a vehicle used to transport
or hold a hazardous substance in commerce, for the purpose of
inspecting within reasonable limits and in a reasonable manner
the factory, warehouse, establishment, or vehicle and all
pertinent equipment, finished and unfinished materials, and
labeling in the factory, warehouse, establishment, or vehicle.
(b) The officer, employee, or agent of the department may obtain
samples of any materials, packaging, labeling, or finished
product.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 10, eff. Sept. 1,
2001.
Sec. 501.032. RECORDS OF HAZARDOUS SUBSTANCE IN COMMERCE. (a)
For the enforcement of this chapter, a carrier engaged in
commerce, a person receiving a hazardous substance in commerce,
or a person holding a hazardous substance received in commerce,
on request of the department shall permit a representative of the
department at reasonable times to have access to and to copy all
records showing the movement in commerce or the holding after
movement in commerce of any hazardous substance and the quantity,
consignees, and shipper of the hazardous substance.
(b) Evidence obtained under this section may not be used in the
criminal prosecution of the person from whom the evidence is
obtained.
(c) A carrier is not subject to the other provisions of this
chapter because of the carrier's receipt, carriage, holding, or
delivery of a hazardous substance in the usual course of the
carrier's business.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 501.033. SEIZURE AND DISPOSITION OF BANNED OR MISBRANDED
HAZARDOUS SUBSTANCE. (a) If an authorized agent of the
department has good reason to believe that a hazardous substance
is a banned or misbranded hazardous substance, the agent shall
affix to the article a tag or other appropriate marking giving
notice that the article is or is suspected to be a banned or
misbranded hazardous substance and that the article has been
detained, and warning all persons not to remove the article from
the premises or dispose of the article by sale or in any other
manner until permission to do so is given by the agent or a
court.
(b) The department shall petition a district court of Travis
County or of the county in which the article is located to
authorize the destruction of the article. If the court determines
that the article is a banned or misbranded hazardous substance,
the department shall destroy the article, and the court shall
impose all court costs and fees and storage and other proper
expenses against the claimant of the article. However, if the
court finds that misbranding occurred in good faith and can be
corrected by proper labeling, the court may direct that the
article be delivered to the claimant for proper labeling with the
approval of the department.
(c) If the court finds that the article is not a banned or
misbranded hazardous substance, the court shall order the
department to remove the tags or other markings.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 11, eff. Sept. 1,
2001.
Sec. 501.034. PROHIBITED ACTS. (a) A person may not hold or
offer for sale, sell, or introduce or deliver for introduction
into commerce a misbranded hazardous substance or banned
hazardous substance.
(b) A person may not alter, mutilate, destroy, or remove all or
part of the label of a hazardous substance, or do any other act
relating to a hazardous substance, when the substance is in
commerce or is held for sale, whether or not the first sale,
after shipment in commerce, if the act results in the hazardous
substance being a banned or misbranded hazardous substance.
(c) A person may not receive a banned or misbranded hazardous
substance in commerce or deliver or offer to deliver a banned or
misbranded hazardous substance for pay or otherwise.
(d) A person may not fail to permit entry or inspection as
authorized by this chapter or to provide records as required by
this chapter.
(e) A person may not use to his own advantage or reveal to any
person other than the department or a court, if relevant to a
judicial proceeding under this chapter, information acquired in
an inspection authorized by this chapter and relating to a method
or process that is entitled to protection as a trade secret.
(f) A person may not remove or dispose of a detained article or
substance in violation of Section 501.035.
(g) A person may not manufacture, import, or repack a hazardous
substance that is to be distributed in this state or otherwise
distribute a hazardous substance in this state without complying
with Section 501.024.
(h) A person may not package a hazardous substance in a new or
reused food, drug, or cosmetic container that is identifiable as
a food, drug, or cosmetic container by its labeling or other
identification.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 12, eff. Sept. 1,
2001.
Sec. 501.035. OFFENSES; EXCEPTIONS. (a) A person commits an
offense if the person intentionally, knowingly, or recklessly
violates this chapter or a rule adopted under this chapter.
(b) An offense under this section is a Class A misdemeanor.
(c) This section does not apply to a person who delivers or
receives a banned or misbranded hazardous substance if the
delivery or receipt is made in good faith and if the person
subsequently delivers on request:
(1) the name and address of the person from whom the substance
was purchased or received; and
(2) copies of all documents, if any, relating to the original
delivery of the substance to the person.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2001, 77th Leg., ch. 360, Sec. 13, eff. Sept. 1,
2001.
Sec. 501.036. INJUNCTION. (a) If it appears that a person has
violated, is violating, or is threatening to violate this chapter
or a rule adopted or order issued under this chapter, the
commissioner may request the attorney general or a district,
county, or city attorney of the county or municipality in which
the violation has occurred, is occurring, or may occur to
institute a civil suit for:
(1) an order enjoining the violation or an order directing
compliance; or
(2) a permanent or temporary injunction, restraining order, or
other appropriate order if the department shows that the person
has engaged in, is engaging in, or is about to engage in a
violation of this chapter or a rule adopted or order issued under
this chapter.
(b) Venue for a suit brought under this section is in the county
or municipality in which the violation occurred or in Travis
County.
(c) The commissioner and either the attorney general or the
district, county, or city attorney, as appropriate, may each
recover from the violator reasonable expenses incurred in
obtaining injunctive relief under this section, including
investigative costs, court costs, reasonable attorney's fees,
witness fees, and deposition expenses. Expenses recovered by the
commissioner may be appropriated only to the department to
administer and enforce this chapter. Expenses recovered by the
attorney general may be appropriated only to the attorney
general.
Added by Acts 2001, 77th Leg., ch. 360, Sec. 14, eff. Sept. 1,
2001.
Sec. 501.037. RECALL ORDERS. (a) In conjunction with the
detention of an article under Section 501.033, the commissioner
may order that a hazardous substance be recalled from commerce.
(b) The commissioner's recall order may require the articles to
be removed to one or more secure areas approved by the
commissioner or an authorized agent of the commissioner.
(c) The recall order must be in writing and signed by the
commissioner.
(d) The recall order may be issued before or in conjunction with
the affixing of the tag or other appropriate marking as provided
by Section 501.033.
(e) The recall order is effective until the order:
(1) expires on its own terms;
(2) is withdrawn by the commissioner; or
(3) is reversed by a court in an order denying destruction under
Section 501.033.
(f) The claimant of the articles or the claimant's agent shall
pay the costs of the removal and storage of the articles removed.
(g) If the claimant or the claimant's agent does not implement
the recall order in a timely manner, the commissioner may provide
for the recall of the articles. The costs of the recall shall be
assessed against the claimant of the articles or the claimant's
agent.
(h) The commissioner may request the attorney general to bring
an action in a district court of Travis County to recover costs
of the recall. In a judgment in favor of the state, the court may
award costs, attorney's fees, and court costs related to the
recall together with interest on those costs from the time an
expense was incurred through the date the department is
reimbursed.
Added by Acts 2001, 77th Leg., ch. 360, Sec. 14, eff. Sept. 1,
2001.
SUBCHAPTER D. ADMINISTRATIVE PENALTY
Sec. 501.101. IMPOSITION OF PENALTY. (a) The department may
impose an administrative penalty on a person:
(1) who manufactures or repacks a hazardous substance that is
distributed in this state or who distributes a hazardous
substance in this state; and
(2) who violates this chapter or a rule or order adopted under
this chapter.
(b) A penalty collected under this subchapter shall be deposited
in the state treasury in the general revenue fund.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.102. AMOUNT OF PENALTY. (a) The amount of the penalty
may not exceed $1,000 for each violation, and each day a
violation continues or occurs is a separate violation for
purposes of imposing a penalty. The total amount of the penalty
assessed for a violation continuing or occurring on separate days
under this subsection may not exceed $5,000.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation;
(2) the threat to health or safety caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) whether the violator demonstrated good faith, including when
applicable whether the violator made good faith efforts to
correct the violation; and
(6) any other matter that justice may require.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.103. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a)
If the department initially determines that a violation occurred,
the department shall give written notice of the report by
certified mail to the person.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a hearing on the
occurrence of the violation, the amount of the penalty, or both.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.104. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Within 20 days after the date the person receives the notice sent
under Section 501.103, the person in writing may:
(1) accept the determination and recommended penalty of the
department; or
(2) make a request for a hearing on the occurrence of the
violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty or if the person fails to respond to the notice, the
commissioner of public health by order shall approve the
determination and impose the recommended penalty.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.105. HEARING. (a) If the person requests a hearing,
the commissioner of public health shall refer the matter to the
State Office of Administrative Hearings, which shall promptly set
a hearing date and give written notice of the time and place of
the hearing to the person. An administrative law judge of the
State Office of Administrative Hearings shall conduct the
hearing.
(b) The administrative law judge shall make findings of fact and
conclusions of law and promptly issue to the commissioner of
public health a proposal for a decision about the occurrence of
the violation and the amount of a proposed penalty.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.106. DECISION BY COMMISSIONER. (a) Based on the
findings of fact, conclusions of law, and proposal for a
decision, the commissioner of public health by order may:
(1) find that a violation occurred and impose a penalty; or
(2) find that a violation did not occur.
(b) The notice of the commissioner's order under Subsection (a)
that is sent to the person in accordance with Chapter 2001,
Government Code, must include a statement of the right of the
person to judicial review of the order.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.107. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. Within
30 days after the date an order of the commissioner of public
health under Section 501.106 that imposes an administrative
penalty becomes final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review of the commissioner's
order contesting the occurrence of the violation, the amount of
the penalty, or both.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.108. STAY OF ENFORCEMENT OF PENALTY. (a) Within the
30-day period prescribed by Section 501.107, a person who files a
petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow
account; or
(B) giving the court a supersedeas bond approved by the court
that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review of the
commissioner's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person
stating that the person is financially unable to pay the penalty
and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the commissioner of public
health by certified mail.
(b) If the commissioner of public health receives a copy of an
affidavit under Subsection (a)(2), the commissioner may file with
the court, within five days after the date the copy is received,
a contest to the affidavit. The court shall hold a hearing on the
facts alleged in the affidavit as soon as practicable and shall
stay the enforcement of the penalty on finding that the alleged
facts are true. The person who files an affidavit has the burden
of proving that the person is financially unable to pay the
penalty or to give a supersedeas bond.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.109. COLLECTION OF PENALTY. (a) If the person does
not pay the penalty and the enforcement of the penalty is not
stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.110. DECISION BY COURT. (a) If the court sustains the
finding that a violation occurred, the court may uphold or reduce
the amount of the penalty and order the person to pay the full or
reduced amount of the penalty.
(b) If the court does not sustain the finding that a violation
occurred, the court shall order that a penalty is not owed.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.111. REMITTANCE OF PENALTY AND INTEREST. (a) If the
person paid the penalty and if the amount of the penalty is
reduced or the penalty is not upheld by the court, the court
shall order, when the court's judgment becomes final, that the
appropriate amount plus accrued interest be remitted to the
person within 30 days after the date that the judgment of the
court becomes final.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on the
date the penalty is paid and ending on the date the penalty is
remitted.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.112. RELEASE OF BOND. (a) If the person gave a
supersedeas bond and the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, the
release of the bond.
(b) If the person gave a supersedeas bond and the amount of the
penalty is reduced, the court shall order the release of the bond
after the person pays the reduced amount.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.
Sec. 501.113. ADMINISTRATIVE PROCEDURE. A proceeding to impose
the penalty is considered to be a contested case under Chapter
2001, Government Code.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 7.01, eff. Sept. 1,
1999.