CHAPTER 345. BEDDING
HEALTH AND SAFETY CODE
TITLE 5. SANITATION AND ENVIRONMENTAL QUALITY
SUBTITLE A. SANITATION
CHAPTER 345. BEDDING
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 345.001. DEFINITIONS. In this chapter:
(1) "Bedding" means a mattress, mattress pad, mattress
protector, box spring, sofa bed, studio couch, chairbed,
convertible bed, convertible lounge, pillow, bolster, quilt,
quilted spread, comforter, cot pad, sleeping bag, lounge chair
pad, utility or all-purpose pad, crib pad, playpen pad, crib
bumper pad, car bed pad, infant carrier pad, convertible stroller
pad, bassinet pad, bed rest and lounge-type cushion, or a stuffed
or filled article that can be used by a human for sleeping or
reclining.
(2) "Department" means the Texas Department of Health.
(2-a) "Floor model" means new bedding placed in a retail sales
area for display purposes.
(3) "Manufacturer" means a person whose principal business is
the manufacture of bedding from new materials for the purpose of
resale in this state by a distributor, jobber, wholesaler, or
retail outlet or subsidiary outlet if the ownership and the name
are the same as the manufacturer, or if it is an exclusive sales
outlet for the manufacturer, or both.
(4) "Material" means an article, substance, or part of an
article or substance, used in the manufacture, repair, or
renovation of bedding.
(5) "New" means no previous use for any purpose other than
previous use as a floor model.
(6) "Processor" means a person who manufactures, processes, and
sells in this state or for delivery in this state any filling
materials, including felt, batting, pads, or foam, to be used or
that could be used in bedding, other than wooden frames or metal
springs.
(7) "Recycled material" means material that:
(A) is composed of recyclable material or that is derived from
postconsumer waste or industrial waste; and
(B) may be used in place of raw or virgin filling material in
manufacturing, repairing, or renovating bedding.
(8) "Renovate" means to restore to a former condition or to
place in a good state of repair.
(9) "Secondhand" means previous use in any manner other than
previous use as a floor model.
(10) "Sell" includes offering or exposing for sale, including in
a sale, bartering, trading, delivering, consigning, leasing,
possessing with intent to sell, or disposing of in any commercial
manner.
(11) "Wholesaler" means a person located outside this state who
on his own account sells, distributes, or jobs into this state to
another for the purpose of resale bedding or filling material to
be used in bedding. The term does not include an affiliate or
subsidiary if the ownership and the name of the affiliate or
subsidiary are the same as the manufacturer, and the affiliate or
subsidiary is the exclusive sales outlet for the manufacturer.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 1, eff. Sept. 1,
1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
723, Sec. 1, eff. September 1, 2007.
Sec. 345.002. EVIDENCE OF INTENT TO SELL. The possession of
bedding by a manufacturer, renovator, wholesaler, or person
holding a germicidal treatment permit in the course of business
is presumptive evidence of an intent to sell the bedding.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.003. PAYMENT TO DEPARTMENT. Money collected in the
administration of this chapter is payable to the department.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 2, eff. Sept. 1,
1997.
Sec. 345.004. LIMIT ON EXPENDITURE OF MONEY. The expenditure of
money under this chapter may not exceed the amount of money
collected under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.005. MATERIALS OBTAINED FROM DUMP OR JUNKYARD. (a) A
person may not manufacture, repair, or renovate bedding or
batting using discarded materials obtained from any dump or
junkyard.
(b) A person may not sell an item of discarded bedding obtained
from a source set out in Subsection (a).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.0055. MATERIAL USED IN BEDDING. (a) The department
may adopt rules relating to material used in new or renovated
bedding, including rules:
(1) requiring the use of burn resistant material; and
(2) prohibiting or restricting the use of secondhand or recycled
material.
(b) Rules adopted under this section must be consistent with any
applicable federal law or regulation.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 3, eff. Sept. 1,
1997.
Sec. 345.006. APPLICABILITY OF CHAPTER. This chapter does not
apply to bedding manufactured, repaired, or renovated before June
30, 1939.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.0065. APPLICABILITY OF CHAPTER TO FLOOR MODEL. Bedding
that has not been used for a purpose other than as a floor model
is regulated as new bedding. A floor model may not be regulated
as secondhand bedding under this chapter in any manner.
Added by Acts 2007, 80th Leg., R.S., Ch.
723, Sec. 2, eff. September 1, 2007.
Sec. 345.007. ADVISORY COMMISSION. The Texas Board of Health
may appoint an advisory commission composed of representatives of
consumers and the bedding industry to assist the board in
implementing this chapter.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 3, eff. Sept. 1,
1997.
SUBCHAPTER B. LABELS
Sec. 345.021. LABEL REQUIRED. (a) A person may not
manufacture, repair, renovate, or sell bedding unless a label
that conforms to this subchapter is:
(1) securely attached to the bedding at the location and by a
method approved by the department; and
(2) clearly visible.
(b) The label must be made of substantial cloth or a substance
of equal quality.
(c) The information required on a label by this chapter must be
in English. The department may authorize or require the use of a
language in addition to English on the label or on an additional
separate label.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
Sec. 345.022. LABELS ON BEDDING MADE OF NEW OR SECONDHAND
MATERIAL. (a) A label required under this section shall be
attached at the factory in which the bedding is manufactured.
(b) A label attached to bedding wholly manufactured from new
material must be at least six square inches and state, plainly
stamped or printed in ink:
(1) "All New Material" in lettering at least one-eighth inch
high;
(2) the kind and grade of each material used in the filling and,
if more than one kind or grade of material is used, the
percentage, in descending order, by weight of each material; and
(3) the manufacturer's permit number assigned by the department.
(c) A label attached to bedding any part of which is
manufactured from secondhand or recycled material, other than
bedding reworked, repaired, or renovated for the owner for the
owner's personal use, must be at least 12 square inches and
state, plainly stamped or printed in ink:
(1) "Secondhand or Recycled Material" in lettering at least
one-fourth inch high; and
(2) the manufacturer's permit number assigned by the department.
(d) A label attached to bedding renovated, reworked, or repaired
for the owner for the owner's personal use and from the owner's
material that is in whole or in part secondhand must be at least
six square inches and state, plainly stamped or printed in ink:
(1) "Not for Sale, Owner's Own Material which is Secondhand
Material" in lettering at least one-eighth inch high;
(2) the name and address of the owner; and
(3) the manufacturer's permit number assigned by the department.
(e) A term used on a label required by this section to describe
kinds and grades of material used in filling must conform to
those defined in the department's rules, and a trade or
substitute term may not be used.
(f) The department may adopt rules that:
(1) require that the label state conformity with burn resistant
material requirements or identify any chemical treatment applied
to the bedding; and
(2) exempt from the requirements of this section a custom
upholstery business that does not repair or renovate bedding for
resale.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
Sec. 345.023. FALSE OR MISLEADING STATEMENT PROHIBITED. A
person may not make a false or misleading statement on a label
required by Section 345.022.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
Sec. 345.024. GERMICIDAL TREATMENT OF BEDDING AND MATERIALS.
(a) Except as provided by Subsection (b), a person may not sell
secondhand bedding or bedding manufactured in whole or in part
from secondhand or recycled material unless the bedding has been
germicidally treated and cleaned by a method approved by the
department.
(b) An upholstered sofa bed, reclining chair, or studio couch
shall be germicidally treated and cleaned only when required by
department rules.
(c) A person may not use in the manufacture, repair, or
renovation of bedding a material that has not been cleaned and
germicidally treated by a process or treatment approved by the
department if the material:
(1) has been used by a person with a communicable disease; or
(2) is filthy, oily, stained, or harbors loathsome insects or
pathogenic organisms.
(d) A person may not sell material or bedding requiring
germicidal treatment under this section unless the person
applying the germicidal treatment securely attaches by a method
approved by the department a label that is at least 12 square
inches and contains, plainly printed in ink:
(1) a statement that the article or material has been
germicidally treated by a method approved by the department;
(2) a statement of the method of germicidal treatment applied;
(3) the date the article was germicidally treated;
(4) the name and address of the person for whom the article was
germicidally treated; and
(5) the permit number of the person applying the germicidal
treatment.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
Sec. 345.025. LABEL REQUIRED ON FILLING MATERIAL. A processor
shall identify each item of material to be used for filling
bedding by affixing to the filling material a label as required
by department rules.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
Sec. 345.026. REMOVAL, DEFACEMENT, OR ALTERATION. A person may
not remove, deface, or alter, or cause the removal, defacing, or
alteration of, a label or a statement on the label to defeat a
provision of this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
Sec. 345.027. COLOR OF LABEL AND LETTERING. The department may
adopt rules governing the color of label required under this
subchapter and the color of the lettering on the label.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
Sec. 345.028. APPLICATION TO RECYCLED MATERIAL. Notwithstanding
any other provision of this subchapter, this subchapter applies
to bedding manufactured, repaired, or renovated in whole or in
part from recycled materials only to the extent required by
department rules.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 4, eff. Sept. 1,
1997.
SUBCHAPTER C. PERMITS
Sec. 345.041. PERMITS. (a) A person may not manufacture,
wholesale, or engage in the business of renovating or selling
bedding in this state or for delivery in this state unless the
person has a permit for that purpose from the department.
(b) A processor may not sell filling material used for filling
bedding in this state or for delivery in this state unless the
person has a permit for that purpose from the department.
(c) The Texas Board of Health by rule may exempt from the permit
requirement of this section a custom upholstery business that
does not repair or renovate bedding for resale.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 5, eff. Sept. 1,
1997.
Sec. 345.042. PERMIT TO APPLY GERMICIDAL TREATMENT. (a) A
person may not apply a germicidal process unless:
(1) the process has been registered with and approved by the
department; and
(2) the person has a numbered germicidal treatment permit issued
by the department.
(b) A permit may be renewed annually only after the permit
holder submits proof of continued compliance with this chapter
and department rules adopted under this chapter.
(c) A person who holds a permit shall keep the permit
conspicuously posted on the premises of the person's business
near the treatment device.
(d) A person who holds a permit shall keep an accurate record of
all materials that have been germicidally treated. The record
must include the:
(1) source of the material;
(2) date of treatment; and
(3) name and address of the owner of each item.
(e) The record shall be available for inspection at any time by
a representative of the department.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.043. FEES; EXPIRATION. (a) The Texas Board of Health
shall set the fees for an initial permit issued under this
chapter and for renewal of a permit issued under this chapter in
amounts reasonable and necessary to defray the cost of
administering this chapter.
(b) A fee collected under this chapter shall be deposited to a
special account in the state treasury. Money in the account may
be appropriated only to the department to administer and enforce
this chapter.
(c) A permit expires one year after the date of issuance.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 6, eff. Sept. 1,
1997.
Sec. 345.0435. ADOPTION OF RULES; MINIMUM STANDARDS. (a) The
executive commissioner of the Health and Human Services
Commission shall adopt rules necessary to implement this
subchapter, including requirements for the issuance, renewal,
denial, suspension, and revocation of a permit issued under this
subchapter.
(b) The rules must contain minimum standards to protect the
health and safety of the public.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 7, eff. Sept. 1,
1997.
Amended by:
Acts 2005, 79th Leg., Ch.
153, Sec. 1, eff. September 1, 2005.
Sec. 345.0436. SUBMISSION OF PRODUCT TEST RESULTS OR SAMPLE. In
conjunction with the issuance or renewal of a permit under this
subchapter, the department may require the applicant or permit
holder to submit:
(1) a product sample; or
(2) the results of tests conducted on the product as required by
the department.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 7, eff. Sept. 1,
1997.
Sec. 345.044. REVOCATION OF PERMIT FOR UNSANITARY CONDITION.
(a) A bedding manufacturer or renovator shall keep the
manufacturer's or renovator's place of business in a sanitary
condition satisfactory to the department.
(b) The department may revoke the permit of a bedding
manufacturer or renovator who violates this section.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.045. MINIMUM SANITARY STANDARDS FOR GERMICIDAL
TREATMENT PERMIT. (a) The holder of a germicidal treatment
permit must maintain the permit holder's place of business in a
sanitary condition free from refuse, dirt contamination, insects,
and vermin.
(b) The executive commissioner of the Health and Human Services
Commission, by rule, may establish additional requirements
regulating the sanitary condition of a permit holder's place of
business. The holder of a germicidal treatment permit who
germicidally treats not more than 10 items at the permit holder's
place of business each week is exempt from any additional
requirements regulating the sanitary condition of a permit
holder's place of business adopted under this subsection.
Added by Acts 2005, 79th Leg., Ch.
153, Sec. 2, eff. September 1, 2005.
SUBCHAPTER D. GENERAL ENFORCEMENT; CRIMINAL OFFENSE
Sec. 345.081. DUTY TO ENFORCE CHAPTER. The department shall
enforce this chapter for the protection of the public health and
welfare.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.082. RULEMAKING AUTHORITY. The department may adopt
rules to implement and enforce this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.083. INSPECTION. (a) To determine compliance with
this chapter or a rule adopted under this chapter, a
representative of the department may enter a place at which:
(1) bedding is manufactured, repaired, renovated, stored, or
sold;
(2) materials are prepared for use in bedding; or
(3) germicidal treatment of bedding is performed.
(b) A representative of the department may take a sample of
materials for inspection and analysis.
(c) A representative of the department may hold for evidence in
a case involving a violation of this chapter or a rule adopted
under this chapter bedding or materials manufactured, repaired,
renovated, or sold in violation of this chapter or a rule adopted
under this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.084. SALE OF BEDDING OR MATERIAL PROHIBITED BY
DEPARTMENT. (a) A representative of the department may prohibit
the sale of specified bedding or material that is being or could
be offered for sale in violation of this chapter or a rule
adopted under this chapter.
(b) The representative shall appropriately tag any bedding or
materials the sale of which is prohibited.
(c) A tag under this section may not be removed and bedding or
materials that are tagged under this section may not be disposed
of in any manner unless:
(1) satisfactory compliance with this chapter and the rules
adopted under this chapter has been shown;
(2) a representative of the department releases the bedding for
sale; and
(3) a representative of the department has approved the removal
or the department has directed that the tag be removed and the
bedding or materials may be disposed of.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.085. JUDICIAL REVIEW. A person aggrieved by a final
decision of the department is entitled to judicial review.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.086. INTERFERENCE WITH DEPARTMENT REPRESENTATIVE. A
person may not interfere with, obstruct, or hinder a
representative of the department performing a duty under this
chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 345.087. PROHIBITED ACTS; CRIMINAL OFFENSE. (a) A person
commits an offense if a person:
(1) manufactures, repairs, or renovates:
(A) bedding using material in violation of rules adopted under
Section 345.0055;
(B) bedding or batting in violation of Section 345.005;
(C) bedding using material in violation of Section 345.024; or
(D) bedding that does not conform to the label requirements of
Subchapter B;
(2) introduces or delivers for introduction into commerce:
(A) bedding or batting manufactured, repaired, or renovated in
violation of Section 345.005, 345.0055, or 345.024;
(B) bedding that does not conform to the label requirements of
Subchapter B; or
(C) bedding or material the sale of which is prohibited as
provided by Section 345.084;
(3) receives in commerce:
(A) bedding or batting manufactured, repaired, or renovated in
violation of Section 345.005, 345.0055, or 345.024;
(B) bedding that does not conform to the label requirements of
Subchapter B; or
(C) bedding or material the sale of which is prohibited as
provided by Section 345.084; or
(4) violates Section 345.041, 345.042, or any other provision of
this chapter or a rule adopted under this chapter.
(b) An offense under this section is a Class A misdemeanor.
(c) In a criminal proceeding under Subsection (a)(1), (2), or
(3), it is not necessary to prove intent, knowledge,
recklessness, or criminal negligence.
(d) It is a defense to prosecution under Subsection (a)(2) or
(3) that the person acted in good faith and was not the person
who manufactured, repaired, or renovated the article. This
subsection does not apply unless the person furnishes, on request
of the department or a local health authority, the name and
address of the person from whom the article was received and
copies of any documents relating to receipt of the article.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1055, Sec. 8, eff. Sept. 1,
1997.
SUBCHAPTER E. ADMINISTRATIVE PENALTY; INJUNCTION
Sec. 345.101. ADMINISTRATIVE PENALTY. (a) The department may
assess an administrative penalty against a person who violates
this chapter or a rule adopted under this chapter.
(b) The penalty may not exceed $25,000 for each violation. Each
day of a continuing violation constitutes a separate violation.
(c) In determining the amount of an administrative penalty
assessed under this section, the department shall consider:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) efforts made to correct the violation; and
(5) any other matters that justice may require.
(d) All proceedings for the assessment of an administrative
penalty under this chapter are subject to Chapter 2001,
Government Code.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.102. NOTICE; REQUEST FOR HEARING. (a) If, after
investigation of a possible violation and the facts surrounding
that possible violation, the department determines that a
violation has occurred, the department shall give written notice
of the violation to the person alleged to have committed the
violation. The notice must include:
(1) a brief summary of the alleged violation;
(2) a statement of the amount of the proposed penalty based on
the factors set forth in Section 345.101(c); and
(3) a statement of the person's right to a hearing on the
occurrence of the violation, the amount of the penalty, or both
the occurrence of the violation and the amount of the penalty.
(b) Not later than the 20th day after the date on which the
notice is received, the person notified may accept the
determination of the department made under this section,
including the proposed penalty, or may make a written request for
a hearing on that determination.
(c) If the person notified of the violation accepts the
determination of the department or if the person fails to respond
in a timely manner to the notice, the commissioner of public
health or the commissioner's designee shall issue an order
approving the determination and ordering that the person pay the
proposed penalty.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.103. HEARING; ORDER. (a) If the person notified
requests a hearing, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the hearing.
(b) The hearings examiner shall make findings of fact and
conclusions of law and shall promptly issue to the commissioner
of public health or the commissioner's designee a proposal for
decision as to the occurrence of the violation and a
recommendation as to the amount of the proposed penalty if a
penalty is determined to be warranted.
(c) Based on the findings of fact and conclusions of law and the
recommendations of the hearings examiner, the commissioner of
public health or the commissioner's designee by order may find
that a violation has occurred and may assess a penalty or may
find that no violation has occurred.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.104. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
JUDICIAL REVIEW; REFUND. (a) The department shall give notice
of the order under Section 345.103(c) to the person alleged to
have committed the violation. The notice must include:
(1) separate statements of the findings of fact and conclusions
of law;
(2) the amount of any penalty assessed; and
(3) a statement of the right of the person to judicial review of
the order.
(b) Not later than the 30th day after the date on which the
decision is final as provided by Chapter 2001, Government Code,
the person shall:
(1) pay the penalty;
(2) pay the penalty and file a petition for judicial review
contesting the occurrence of the violation, the amount of the
penalty, or both the occurrence of the violation and the amount
of the penalty; or
(3) without paying the penalty, file a petition for judicial
review contesting the occurrence of the violation, the amount of
the penalty, or both the occurrence of the violation and the
amount of the penalty.
(c) Within the 30-day period, a person who acts under Subsection
(b)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow
account; or
(B) giving to the court a supersedeas bond that is approved by
the court for the amount of the penalty and that is effective
until all judicial review of the 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 amount
of the penalty and is financially unable to give the supersedeas
bond; and
(B) giving a copy of the affidavit to the department by
certified mail.
(d) If the department receives a copy of an affidavit under
Subsection (c)(2), the department 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 and to
give a supersedeas bond.
(e) If the person does not pay the penalty and the enforcement
of the penalty is not stayed, the department may refer the matter
to the attorney general for collection of the penalty.
(f) Judicial review of the order:
(1) is instituted by filing a petition as provided by Subchapter
G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(g) If the court sustains the occurrence of the violation, 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. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(h) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the
amount of the penalty under Subsection (b)(2) and if that amount
is reduced or is not upheld by the court, the court shall order
that the department pay the appropriate amount plus accrued
interest to the person. The rate of the interest is the rate
charged on loans to depository institutions by the New York
Federal Reserve Bank, and the interest shall be paid for the
period beginning on the date the penalty was paid and ending on
the date the penalty is remitted. If the person paid the penalty
under Subsection (c)(1)(A), or gave a supersedeas bond, and if
the amount of the penalty is not upheld by the court, the court
shall order the release of the escrow account or bond. If the
person paid the penalty under Subsection (c)(1)(A) and the amount
of the penalty is reduced, the court shall order that the amount
of the penalty be paid to the department from the escrow account
and that the remainder of the account be released. If the person
gave a supersedeas bond and if the amount of the penalty is
reduced, the court shall order the release of the bond after the
person pays the amount.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.105. PENALTY DEPOSITED TO STATE TREASURY. An
administrative penalty collected under this subchapter shall be
deposited in the state treasury to the credit of the general
revenue fund.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.106. INJUNCTION. (a) At the request of the
commissioner of public health, the attorney general may petition
the district court for a temporary restraining order to restrain
a continuing violation of this chapter or a threat of a
continuing violation of this chapter if the commissioner of
public health finds that:
(1) a person has violated, is violating, or is threatening to
violate this chapter; and
(2) the violation or threatened violation creates an immediate
threat to the health and safety of the public.
(b) A district court, on petition under this section and on a
finding by the court that a person is violating or threatening to
violate this chapter, shall grant any injunctive relief warranted
by the facts.
(c) Venue for a suit brought under this section is in the county
in which the violation or threat of violation is alleged to have
occurred or in Travis County.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.107. RECOVERY OF COSTS. (a) The department may assess
reasonable expenses and costs against a person in an
administrative hearing if, as a result of the hearing, the
person's permit is denied, suspended, or revoked or if
administrative penalties are assessed against the person. The
person shall pay expenses and costs assessed under this
subsection not later than the 30th day after the date on which
the order issued by the commissioner of public health or the
commissioner's designee requiring the payment of expenses and
costs is final. The department may refer the matter to the
attorney general for collection of the expenses and costs.
(b) If the attorney general brings an action against a person
under Section 345.106 or to enforce an administrative penalty
assessed under this subchapter and an injunction is granted
against the person or the person is found liable for an
administrative penalty, the attorney general may recover, on
behalf of the attorney general and the department, reasonable
expenses and costs.
(c) For purposes of this section, "reasonable expenses and
costs" include expenses incurred by the department and the
attorney general in the investigation, initiation, or prosecution
of an action, including reasonable investigative costs, court
costs, attorney's fees, witness fees, and deposition expenses.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
SUBCHAPTER F. DETENTION OR EMBARGO OF BEDDING
Sec. 345.131. DEFINITIONS. In this subchapter:
(1) "Authorized agent" means an employee of the department who
is designated by the commissioner of public health to enforce the
provisions of this chapter.
(2) "Detained or embargoed bedding" means bedding that has been
detained or embargoed under Section 345.132.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.132. DETAINED OR EMBARGOED BEDDING. (a) The
commissioner of public health or an authorized agent may detain
or embargo bedding under this section if the commissioner or the
authorized agent finds or has probable cause to believe that the
article violates this chapter or a rule or standard adopted under
this chapter.
(b) The commissioner of public health or an authorized agent
shall affix to detained or embargoed bedding a tag or other
appropriate marking that gives notice that:
(1) the bedding violates or is suspected of violating this
chapter or a rule or standard adopted under this chapter; and
(2) the bedding has been detained or embargoed.
(c) The tag or marking on detained or embargoed bedding must
warn all persons not to use the bedding, remove the bedding from
the premises, or dispose of the bedding by sale or otherwise
until permission for use, removal, or disposal is given by the
commissioner of public health, the authorized agent, or a court.
(d) A person may not use detained or embargoed bedding, remove
detained or embargoed bedding from the premises, or dispose of
detained or embargoed bedding by sale or otherwise without
permission of the commissioner of public health, the authorized
agent, or a court.
(e) The commissioner of public health or an authorized agent
shall remove the tag or other marking from detained or embargoed
bedding if the commissioner or an authorized agent finds that the
bedding does not violate this chapter or a rule or standard
adopted under this chapter.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.133. REMOVAL ORDER FOR DETAINED OR EMBARGOED BEDDING.
(a) If the claimant of the detained or embargoed bedding or the
claimant's agent fails or refuses to transfer the bedding to a
secure place after the tag or other appropriate marking has been
affixed as provided by Section 345.132, the commissioner of
public health or an authorized agent may order the transfer of
the bedding to one or more secure storage areas to prevent
unauthorized use, removal, or disposal.
(b) The commissioner of public health or an authorized agent may
provide for the transfer of the bedding if the claimant of the
bedding or the claimant's agent does not carry out the transfer
order in a timely manner.
(c) The claimant of the bedding or the claimant's agent shall
pay the costs of the transfer, and the costs of any transfer made
under Subsection (a) or (b) shall be assessed against the
claimant of the bedding or the claimant's agent.
(d) The commissioner of public health may request the attorney
general to bring an action in the district court in Travis County
to recover the costs of the transfer. In a judgment in favor of
the state, the court may award costs, attorney's fees, court
costs, and interest from the time the expense was incurred
through the date the department is reimbursed.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.134. CONDEMNATION. An action for the condemnation of
bedding may be brought before a court in whose jurisdiction the
bedding is located, detained, or embargoed if the bedding
violates this chapter or a rule or standard adopted under this
chapter.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.135. RECALL ORDERS. (a) In conjunction with the
detention or embargo of bedding under this subchapter, the
commissioner of public health may order bedding to be recalled
from commerce.
(b) The commissioner of public health's recall order may require
the bedding to be removed to one or more secure areas approved by
the commissioner or an authorized agent.
(c) The recall order must be in writing and signed by the
commissioner of public health.
(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 345.132(b).
(e) The recall order is effective until the order:
(1) expires on its own terms;
(2) is withdrawn by the commissioner of public health; or
(3) is reversed by a court in an order denying condemnation
under Section 345.134.
(f) The claimant of the bedding or the claimant's agent shall
pay the costs of the removal and storage of the bedding removed.
(g) If the claimant or the claimant's agent fails or refuses to
carry out the recall order in a timely manner, the commissioner
of public health may provide for the recall of the bedding. The
costs of the recall shall be assessed against the claimant of the
bedding or the claimant's agent.
(h) The commissioner of public health may request the attorney
general to bring an action in the district court of Travis County
to recover the costs of the recall. In a judgment in favor of the
state, the court may award costs, attorney's fees, court costs,
and interest from the time the expense was incurred through the
date the department is reimbursed.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.136. DESTRUCTION OF BEDDING. (a) A court shall order
the destruction of detained or embargoed bedding if the court
finds that the bedding violates this chapter or a rule or
standard adopted under this chapter.
(b) After entry of the court's order, an authorized agent shall
supervise the destruction of the bedding.
(c) The claimant of the article shall pay the cost of the
destruction of the bedding.
(d) The court shall tax against the claimant of the bedding or
the claimant's agent all court costs and fees and storage and
other proper expenses.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.
Sec. 345.137. CORRECTION BY PROPER LABELING OR PROCESSING. (a)
A court may order the delivery of detained or embargoed bedding
that violates this chapter or a rule or standard adopted under
this chapter to the claimant of the bedding for labeling or
processing under the supervision of an agent of the commissioner
of public health or an authorized agent if:
(1) the decree has been entered in the suit relating to the
detained or embargoed bedding;
(2) the claimant has paid the costs, fees, and expenses of the
suit;
(3) the violation can be corrected by proper labeling or
processing; and
(4) a good and sufficient bond, conditioned on the correction of
the violation by proper labeling or processing, has been
executed.
(b) The claimant shall pay the costs of the supervision of the
labeling or processing by the agent of the commissioner of public
health or an authorized agent.
(c) The court shall order that the bedding be returned to the
claimant and the bond discharged on the representation to the
court by the commissioner of public health or an authorized agent
that the article no longer violates this chapter or a rule or
standard adopted under this chapter and that the expenses of the
supervision are paid.
Added by Acts 1997, 75th Leg., ch. 1055, Sec. 10, eff. Sept. 1,
1997.