2005 Texas Health & Safety Code CHAPTER 486. OVER-THE-COUNTER SALES OF EPHEDRINE, PSEUDOEPHEDRINE, AND NORPSEUDOEPHEDRINE

HEALTH & SAFETY CODE

CHAPTER 486. OVER-THE-COUNTER SALES OF EPHEDRINE, PSEUDOEPHEDRINE, 
AND NORPSEUDOEPHEDRINE

SUBCHAPTER A. GENERAL PROVISIONS


	§ 486.001. DEFINITIONS.  (a) In this chapter:                               
		(1)  "Commissioner" means the commissioner of state 
health services.        
		(2)  "Council" means the State Health Services Council.                       
		(3)  "Department" means the Department of State Health 
Services.            
		(4)  "Ephedrine," "pseudoephedrine," and 
"norpseudoephedrine" mean any compound, mixture, or preparation 
containing any detectable amount of that substance, including its 
salts, optical isomers, and salts of optical isomers.  The term does 
not include any compound, mixture, or preparation that is in 
liquid, liquid capsule, or liquid gel capsule form.
		(5)  "Sale" includes a conveyance, exchange, barter, or 
trade.              
	(b)  A term that is used in this chapter but is not defined by 
Subsection (a) has the meaning assigned by Section 481.002.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.002. APPLICABILITY.  This chapter does not apply to 
the sale of any product dispensed or delivered by a pharmacist 
according to a prescription issued by a practitioner for a valid 
medical purpose and in the course of professional practice.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.003. RULES.  The council shall adopt rules 
necessary to implement and enforce this chapter.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.004. FEES.  (a) The department shall collect fees 
for:              
		(1)  the issuance of a certificate of authority under 
this chapter;  and    
		(2)  an inspection performed in enforcing this chapter 
and rules adopted under this chapter.
	(b)  The commissioner by rule shall set the fees in amounts 
that allow the department to recover the biennial expenditures of 
state funds by the department in:
		(1)  reviewing applications for the issuance of a 
certificate of authority under this chapter;
		(2)  issuing certificates of authority under this 
chapter;                  
		(3)  inspecting and auditing a business establishment 
that is issued a certificate of authority under this chapter;  and
		(4)  otherwise implementing enforcing this chapter.                           
	(c)  Fees collected under this section shall be deposited to 
the credit of a special account in the general revenue fund and 
appropriated to the department to implement and enforce this 
chapter.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.005. STATEWIDE APPLICATION AND UNIFORMITY.  (a) To 
ensure uniform and equitable implementation and enforcement 
throughout this state, this chapter constitutes the whole field of 
regulation regarding over-the-counter sales of products that 
contain ephedrine, pseudoephedrine, or norpseudoephedrine.
	(b)  This chapter preempts and supersedes a local ordinance, 
rule, or regulation adopted by a political subdivision of this 
state pertaining to over-the-counter sales of products that contain 
ephedrine, pseudoephedrine, or norpseudoephedrine.
	(c)  This section does not preclude a political subdivision 
from imposing administrative sanctions on the holder of a business 
or professional license or permit issued by the political 
subdivision who engages in conduct that violates this chapter.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            

SUBCHAPTER B. OVER-THE-COUNTER SALES


	§ 486.011. SALES BY PHARMACIES.  A business establishment 
that operates a pharmacy licensed by the Texas State Board of 
Pharmacy may engage in over-the-counter sales of ephedrine, 
pseudoephedrine, and norpseudoephedrine.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.012. SALES BY ESTABLISHMENTS OTHER THAN PHARMACIES;  
CERTIFICATE OF AUTHORITY.  (a) A business establishment that does 
not operate a pharmacy licensed by the Texas State Board of Pharmacy 
may engage in over-the-counter sales of ephedrine, 
pseudoephedrine, or norpseudoephedrine only if the establishment 
holds a certificate of authority issued under this section.
	(b)  The department may issue a certificate of authority to 
engage in over-the-counter sales of ephedrine, pseudoephedrine, 
and norpseudoephedrine to a business establishment that does not 
operate a pharmacy licensed by the Texas State Board of Pharmacy if 
the establishment:
		(1)  applies to the department for the certificate in 
accordance with department rule;  and
		(2)  complies with the requirements established by the 
department for issuance of a certificate.
	(c)  The department by rule shall establish requirements for 
the issuance of a certificate of authority under this section.  The 
rules must include a consideration by the department of whether the 
establishment:
		(1)  complies with the requirements of the Texas State 
Board of Pharmacy for the issuance of a license to operate a 
pharmacy;
		(2)  sells a wide variety of healthcare products;  and                        
		(3)  employs sales techniques and other measures 
designed to deter the theft of products containing ephedrine, 
pseudoephedrine, or norpseudoephedrine and other items used in the 
manufacture of methamphetamine.
	(d)  The department may inspect or audit a business 
establishment that is issued a certificate of authority under this 
section at any time the department determines necessary.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.013. RESTRICTION OF ACCESS TO EPHEDRINE, 
PSEUDOEPHEDRINE, AND NORPSEUDOEPHEDRINE.  A business 
establishment that engages in over-the-counter sales of products 
containing ephedrine, pseudoephedrine, or norpseudoephedrine 
shall:
		(1)  if the establishment operates a pharmacy licensed 
by the Texas State Board of Pharmacy, maintain those products:
			(A)  behind the pharmacy counter;  or                                        
			(B)  in a locked case within 30 feet and in a 
direct line of sight from a pharmacy counter staffed by an employee 
of the establishment;  or
		(2)  if the establishment does not operate a pharmacy 
licensed by the Texas State Board of Pharmacy, maintain those 
products:
			(A)  behind a sales counter;  or                                             
			(B)  in a locked case within 30 feet and in a 
direct line of sight from a sales counter continuously staffed by an 
employee of the establishment.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.014. PREREQUISITES TO SALE.  Before completing an 
over-the-counter sale of a product containing ephedrine, 
pseudoephedrine, or norpseudoephedrine, a business establishment 
that engages in those sales shall:
		(1)  require the person making the purchase to:                               
			(A)  display a driver's license or other form of 
identification containing the person's photograph and indicating 
that the person is 16 years of age or older;  and
			(B)  sign for the purchase;                                                  
		(2)  make a record of the sale, including the name of 
the person making the purchase, the date of the purchase, and the 
item and number of grams purchased;  and
		(3)  take actions necessary to prevent a person who 
makes over-the-counter purchases of one or more products containing 
ephedrine, pseudoephedrine, or norpseudoephedrine from obtaining 
from the establishment in a single transaction more than:
			(A)  two packages of those products;  or                                     
			(B)  six grams of ephedrine, pseudoephedrine, 
norpseudoephedrine, or a combination of those substances.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.015. MAINTENANCE OF RECORDS.  The business 
establishment shall maintain each record made under Section 
486.014(2) until at least the second anniversary of the date the 
record is made and shall make each record available on request by 
the department or the Department of Public Safety.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            

SUBCHAPTER C. ADMINISTRATIVE PENALTY


	§ 486.021. IMPOSITION OF PENALTY.  The department may 
impose an administrative penalty on a person who violates this 
chapter.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.022. 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 $20,000.
	(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 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.023. 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 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.024. PENALTY TO BE PAID OR HEARING REQUESTED.  (a) 
Before the 21st day after the date the person receives notice under 
Section 486.023, the person in writing may:
		(1)  accept the determination and recommended penalty;  
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 by order shall approve the determination.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.025. HEARING.  (a) If the person requests a 
hearing, the commissioner 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 a 
proposal for a decision about the occurrence of the violation and 
the amount of a proposed penalty.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.026. DECISION.  (a) Based on the findings of fact, 
conclusions of law, and proposal for a decision, the commissioner 
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 the manner provided by Chapter 
2001, Government Code, must include a statement of the right of the 
person to judicial review of the order.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.027. OPTIONS FOLLOWING DECISION:  PAY OR 
APPEAL.  Before the 31st day after the date the order under Section 
486.026 that imposes an administrative penalty becomes final, the 
person shall:
		(1)  pay the penalty;  or                                                     
		(2)  file a petition for judicial review of the order 
contesting the occurrence of the violation, the amount of the 
penalty, or both.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.028. STAY OF ENFORCEMENT OF PENALTY.  (a) Within 
the period prescribed by Section 486.027, a person who files a 
petition for judicial review may:
		(1)  stay enforcement of the penalty by:                                      
			(A)  paying the amount of 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 order is final;  or   
		(2)  request the court to stay enforcement of the 
penalty by:               
			(A)  filing with the court an 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)  sending a copy of the affidavit to the 
commissioner by certified mail.
	(b)  Following receipt of a copy of an affidavit under 
Subsection (a)(2), the commissioner may file with the court, before 
the sixth day after the date of receipt, 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 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.029. 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 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.030. 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 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.031. 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 
before the 31st day 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 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.032. 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 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.            


	§ 486.033. ADMINISTRATIVE PROCEDURE.  A proceeding to 
impose the penalty under this subchapter is considered to be a 
contested case under Chapter 2001, Government Code.

Added by Acts 2005, 79th Leg., ch. 282, § 9, eff. Aug. 1, 2005.