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2009 Texas Code
HEALTH AND SAFETY CODE
TITLE 2. HEALTH
CHAPTER 161. PUBLIC HEALTH PROVISIONS

HEALTH AND SAFETY CODE

TITLE 2. HEALTH

SUBTITLE H. PUBLIC HEALTH PROVISIONS

CHAPTER 161. PUBLIC HEALTH PROVISIONS

SUBCHAPTER A. IMMUNIZATIONS

Sec. 161.0001. DEFINITIONS. In this subchapter:

(1) "Data elements" means the information:

(A) a health care provider who administers a vaccine is required

to record in a medical record under 42 U.S.C. Section 300aa-25,

as amended, including:

(i) the date the vaccine is administered;

(ii) the vaccine manufacturer and lot number of the vaccine;

(iii) any adverse or unexpected events for a vaccine; and

(iv) the name, the address, and if appropriate, the title of the

health care provider administering the vaccine; and

(B) specified in rules adopted to implement Section 161.00705.

(1-a) "First responder" means:

(A) any federal, state, local, or private personnel who may

respond to a disaster, including:

(i) public health and public safety personnel;

(ii) commissioned law enforcement personnel;

(iii) fire protection personnel, including volunteer

firefighters;

(iv) emergency medical services personnel, including hospital

emergency facility staff;

(v) a member of the National Guard;

(vi) a member of the Texas State Guard; or

(vii) any other worker who responds to a disaster in the

worker's scope of employment; or

(B) any related personnel that provide support services during

the prevention, response, and recovery phases of a disaster.

(1-b) "Immediate family member" means the parent, spouse, child,

or sibling of a person who resides in the same household as the

person.

(1-c) "Individual's legally authorized representative" means:

(A) a parent, managing conservator, or guardian of an

individual, if the individual is a minor;

(B) a guardian of the individual, if the individual has been

adjudicated incompetent to manage the individual's personal

affairs; or

of attorney for health care.

(2) "Payor" means an insurance company, a health maintenance

organization, or another organization that pays a health care

provider to provide health care benefits, including providing

immunizations.

(3) "Electronically," as related to a communication authorized

under this chapter, means by e-mail, text message, online

communication, or another electronic method of communication

approved by the department.

Added by Acts 2003, 78th Leg., ch. 1081, Sec. 1, eff. Sept. 1,

2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.01, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

803, Sec. 1, eff. June 19, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1280, Sec. 4.03, eff. September 1, 2009.

Sec. 161.001. LIABILITY OF PERSON WHO ORDERS OR ADMINISTERS

IMMUNIZATION. (a) A person who administers or authorizes the

administration of a vaccine or immunizing agent is not liable for

an injury caused by the vaccine or immunizing agent if the

immunization is required by the board or is otherwise required by

law or rule.

(b) A person who administers or authorizes the administration of

a vaccine or immunizing agent is not liable or responsible for

the failure to immunize a child because of the failure or refusal

of a parent, managing conservator, or guardian to consent to the

vaccination or immunization required under this chapter. Consent

to the vaccination or immunization must be given in the manner

authorized by Chapter 32, Family Code.

liable or responsible for that failure, and that failure does not

create a cause of action.

(d) This section does not apply to a negligent act in

administering the vaccine or immunizing agent.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 43, Sec. 2, eff. Sept. 1,

1993; Acts 1997, 75th Leg., ch. 165, Sec. 7.40, eff. Sept. 1,

1997.

Sec. 161.002. INADMISSIBILITY OF IMMUNIZATION SURVEY

INFORMATION. Information obtained from a physician's medical

records by a person conducting an immunization survey for the

department is not admissible as evidence in a suit against the

physician that involves an injury relating to the immunization of

an individual.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 161.003. IMMUNIZATION REMINDER NOTICES. (a) In a program

administered by the department in which an immunization reminder

notice is sent regarding the immunization of a child, the notice

must be sent without discrimination based on the legitimacy of

the child.

(b) The reminder notice must be addressed to an adult or parent

and may not use:

(1) an indication of the marital status of the addressee; or

(2) the terms "Mr.," "Mrs.," "Miss," or "Ms."

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 161.004. STATEWIDE IMMUNIZATION OF CHILDREN. (a) Every

child in the state shall be immunized against vaccine preventable

diseases caused by infectious agents in accordance with the

immunization schedule adopted by the board.

(b) Hospitals shall be responsible for:

(1) referring newborns for immunization at the time the newborn

screening test is performed;

(2) reviewing the immunization history of every child admitted

to the hospital or examined in the hospital's emergency room or

outpatient clinic; and

(3) administering needed vaccinations or referring the child for

immunization.

immunization history of every child examined and administering

any needed vaccinations or referring the child for immunization.

(d) A child is exempt from an immunization required by this

section if:

(1) a parent, managing conservator, or guardian states that the

immunization is being declined for reasons of conscience,

including a religious belief; or

(2) the immunization is medically contraindicated based on the

opinion of a physician licensed by any state in the United States

who has examined the child.

(e) For purposes of this section, "child" means a person under

18 years of age.

(f) The board shall adopt rules that are necessary to administer

this section.

(g) A parent, managing conservator, or guardian may choose the

health care provider who administers the vaccine or immunizing

agent under this chapter.

Added by Acts 1993, 73rd Leg., ch. 43, Sec. 3, eff. Sept. 1,

1993. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.162, eff.

Sept. 1, 2003.

Sec. 161.0041. IMMUNIZATION EXEMPTION AFFIDAVIT FORM. (a) A

person claiming an exemption from a required immunization based

on reasons of conscience, including a religious belief, under

Section 161.004 of this code, Section 38.001 or 51.933, Education

Code, or Section 42.043, Human Resources Code, must complete an

affidavit on a form provided by the department stating the reason

for the exemption.

(b) The affidavit must be signed by the person claiming the

exemption or, if the person is a minor, the person's parent,

managing conservator, or guardian, and the affidavit must be

notarized.

under this section may only obtain the affidavit form by

submitting a written request for the affidavit form to the

department.

(d) The department shall develop a blank affidavit form that

contains a seal or other security device to prevent reproduction

of the form. The affidavit form shall contain a statement

indicating that the person or, if a minor, the person's parent,

managing conservator, or guardian understands the benefits and

risks of immunizations and the benefits and risks of not being

immunized.

(e) The department shall maintain a record of the total number

of affidavit forms sent out each year and shall report that

information to the legislature each year. The department may not

maintain a record of the names of individuals who request an

affidavit under this section.

Added by Acts 2003, 78th Leg., ch. 198, Sec. 2.163, eff. Sept. 1,

2003.

Sec. 161.005. IMMUNIZATIONS REQUIRED. (a) On admission of a

child to a facility of the Texas Department of Mental Health and

Mental Retardation, the Texas Department of Criminal Justice, or

the Texas Youth Commission, the facility physician shall review

the immunization history of the child and administer any needed

vaccinations or refer the child for immunization.

(b) The department and the board have the same powers and duties

under this section as those entities have under Sections 38.001

and 51.933 , Education Code. In addition, the provisions of those

sections relating to provisional admissions and exceptions apply

to this section.

immunization record during the individual's period of admission,

detention, or commitment in the facility, and the records shall

be open for inspection at all reasonable times by a

representative of the local health department or the department.

(d) This section does not affect the requirements of Section

38.001 or 51.933, Education Code, or Section 42.043, Human

Resources Code.

Added by Acts 1993, 73rd Leg., ch. 43, Sec. 3, eff. Sept. 1,

1993. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 6.41, eff.

Sept. 1, 1997.

Sec. 161.0051. REQUIRED IMMUNIZATIONS FOR NURSING HOMES. (a)

This section applies only to a nursing home that:

(1) is an institution licensed under Chapter 242; and

(2) serves residents who are elderly persons as defined by

Section 242.002.

(b) The board by rule may require nursing homes to offer, in

accordance with an immunization schedule adopted by the board,

immunizations to elderly residents or to staff who are in contact

with elderly residents against diseases that the board determines

to be:

(1) caused by infectious agents;

(2) potentially deadly; and

(3) preventable by vaccine.

accordance with an immunization schedule adopted by the board:

(1) pneumococcal vaccine to elderly residents; and

(2) influenza vaccine to elderly residents and to staff who are

in contact with elderly residents.

Added by Acts 1999, 76th Leg., ch. 259, Sec. 1, eff. Sept. 1,

1999.

Sec. 161.0052. IMMUNIZATION OF ELDERLY PERSONS BY HOSPITALS, END

STAGE RENAL DISEASE FACILITIES, AND PHYSICIANS' OFFICES. (a) In

this section:

(1) "Elderly person" means a person who is 65 years of age or

older.

(2) "End stage renal disease facility" has the meaning assigned

by Section 251.001.

(3) "Hospital" has the meaning assigned by Section 241.003.

(b) The executive commissioner of the Health and Human Services

Commission by rule shall require a hospital to inform each

elderly person admitted to the hospital for a period of 24 hours

or more that the pneumococcal and influenza vaccines are

available. If the elderly person requests a vaccine, and if a

physician, or an advanced nurse practitioner or physician

assistant on behalf of a physician, determines that the vaccine

is in the person's best interest, the hospital must make the

vaccination available to the person before the person is

discharged from the hospital.

Commission by rule shall require an end stage renal disease

facility to offer, to the extent possible as determined by the

facility, the opportunity to receive the pneumococcal and

influenza vaccines to each elderly person who receives ongoing

care at the facility if a physician, or an advanced nurse

practitioner or physician assistant on behalf of a physician,

determines that the vaccine is in the person's best interest. If

the facility decides it is not feasible to offer the vaccine, the

facility must provide the person with information on other

options for obtaining the vaccine.

(d) The Texas State Board of Medical Examiners by rule shall

require a physician responsible for the management of a

physician's office that provides ongoing medical care to elderly

persons to offer, to the extent possible as determined by the

physician, the opportunity to receive the pneumococcal and

influenza vaccines to each elderly person who receives ongoing

care at the office. If the physician decides it is not feasible

to offer the vaccine, the physician must provide the person with

information on other options for obtaining the vaccine.

(e) Rules adopted under this section must require that:

(1) a hospital, end stage renal disease facility, or physician's

office:

(A) offer the influenza vaccine in October and November, and if

the vaccine is available, December; and

(B) offer the pneumococcal vaccine year-round; and

(2) a person administering a vaccine:

(A) ask whether the elderly person is currently vaccinated

against the influenza virus or pneumococcal disease, as

appropriate;

(B) administer the vaccine under institution-approved or

physician-approved protocols after making an assessment for

contraindications; and

medical records.

(f) In adopting rules under this section, the executive

commissioner of the Health and Human Services Commission and the

Texas State Board of Medical Examiners shall consider the

recommendations of the Advisory Committee on Immunization

Practices of the Centers for Disease Control and Prevention.

(g) Rules adopted under this section may consider the potential

for a shortage of a vaccine.

(h) The department shall make available to hospitals and end

stage renal disease facilities, and the Texas State Board of

Medical Examiners shall make available to physicians' offices,

educational and informational materials concerning vaccination

against influenza virus and pneumococcal disease.

Added by Acts 2005, 79th Leg., Ch.

368, Sec. 1, eff. September 1, 2005.

Sec. 161.006. DEPARTMENT IMMUNIZATION SERVICE. The department,

to the extent permitted by law, is authorized to pay employees

who are exempt or not exempt for purposes of the Fair Labor

Standards Act of 1938 (29 U.S.C. Section 201 et seq.) on a

straight-time basis for work on a holiday or for regular

compensatory time hours when the taking of regular compensatory

time off would be disruptive to normal business operations.

Authorization for payment under this section is limited to work

directly related to immunizations.

Added by Acts 1993, 73rd Leg., ch. 43, Sec. 3, eff. Sept. 1,

1993.

Sec. 161.007. IMMUNIZATION REGISTRY; REPORTS TO DEPARTMENT. (a)

The department, for the primary purpose of establishing and

maintaining a single repository of accurate, complete, and

current immunization records to be used in aiding, coordinating,

and promoting efficient and cost-effective communicable disease

prevention and control efforts, shall establish and maintain an

immunization registry. The executive commissioner of the Health

and Human Services Commission by rule shall develop guidelines

to:

(1) protect the confidentiality of patients in accordance with

Section 159.002, Occupations Code;

(2) inform the individual or the individual's legally authorized

representative about the registry and that registry information

may be released under Section 161.00735;

(3) require the written or electronic consent of the individual

or the individual's legally authorized representative before any

information relating to the individual is included in the

registry;

(4) permit the individual or the individual's legally authorized

representative to withdraw consent for the individual to be

included in the registry; and

(5) determine the process by which consent is verified,

including affirmation by a health care provider, birth registrar,

regional health information exchange, or local immunization

registry that consent has been obtained.

(a-1) The written or electronic consent required by Subsection

(a)(3) for an individual younger than 18 years of age is required

to be obtained only one time. The consent is valid until the

individual becomes 18 years of age unless the consent is

withdrawn in writing or electronically. A parent, managing

conservator, or guardian of a minor may provide the consent by

using an electronic signature on the minor's birth certificate.

(a-2) An individual's legally authorized representative or the

individual, after the individual has attained 18 years of age,

may consent in writing or electronically for the individual's

information to remain in the registry after the individual's 18th

birthday and for the individual's subsequent immunizations to be

included in the registry. The written or electronic consent of

the minor's legally authorized representative as described by

Section 161.0001(1-c)(A) must be submitted to the department

before the individual's 18th birthday. The written or electronic

consent of the individual or the individual's legally authorized

representative as described by Section 161.0001(1-c)(B) or (C)

must be submitted to the department not later than the

individual's 19th birthday. The consent of the representative or

individual is valid until the individual or the individual's

legally authorized representative withdraws consent in writing or

electronically. The department may not include in the registry

the immunization information of an individual who is 18 years of

age or older until written or electronic consent has been

obtained as provided by this subsection. The department shall

coordinate with the Texas Education Agency to distribute

materials described in Section 161.0095(a)(2) to students and

parents through local school districts.

(a-3) The executive commissioner of the Health and Human

Services Commission by rule shall develop guidelines and

procedures for obtaining consent from an individual after the

individual's 18th birthday, including procedures for retaining

immunization information in a separate database that is

inaccessible by any person other than the department during the

one-year period during which an 18-year-old may consent to

inclusion in the registry under Subsection (a-2).

(b) Except as provided by Section 161.0071, the immunization

registry must contain information on the immunization history

that is obtained by the department under:

(1) this section of each individual for whom consent has been

obtained in accordance with guidelines adopted under Subsection

(a) or (a-3), as applicable;

(2) Section 161.00705 of persons immunized to prepare for or in

response to a declared disaster, public health emergency,

terrorist attack, hostile military or paramilitary action, or

extraordinary law enforcement emergency;

(3) Section 161.00706 of first responders or their immediate

family members; and

(4) Section 161.00735 of persons evacuated or relocated to this

state because of a disaster.

(b-1) The department shall remove from the registry information

for any individual for whom consent has been withdrawn. The

department may not retain individually identifiable information

about any individual:

(1) for whom consent has been withdrawn;

(2) for whom a consent for continued inclusion in the registry

following the end of the declared disaster, public health

emergency, terrorist attack, hostile military or paramilitary

action, or extraordinary law enforcement emergency has not been

received under Section 161.00705(f);

(3) for whom a request to be removed from the registry has been

received under Section 161.00706(e);

(4) for whom consent for continued inclusion in the registry

following the end of a disaster has not been received under

Section 161.00735(f); or

(5) for whom a request to remove information from the registry

has been received under Section 161.00735(g).

provider who administers an immunization to an individual younger

than 18 years of age shall provide the data elements to the

department. A payor is required to provide the department with

only the data elements the payor receives from a health care

provider. A payor that receives data elements from a health care

provider who administers an immunization to an individual 18

years of age or older may provide the data elements to the

department. The data elements shall be submitted in a format

prescribed by the department. The department shall verify

consent before including the reported information in the

immunization registry. The department may not retain

individually identifiable information about an individual for

whom consent cannot be verified.

(d) A health care provider who administers an immunization to an

individual younger than 18 years of age shall provide data

elements regarding an immunization to the department. A health

care provider who administers an immunization to an individual 18

years of age or older may submit data elements regarding an

immunization to the department. The data elements shall be

submitted in a format prescribed by the department. The

department shall verify consent before including the information

in the immunization registry. The department may not retain

individually identifiable information about an individual for

whom consent cannot be verified.

(e) The department shall provide notice to a health care

provider that submits an immunization history for an individual

for whom consent cannot be verified. The notice shall contain

instructions for obtaining consent in accordance with guidelines

adopted under Subsections (a) and (a-3) and resubmitting the

immunization history to the department.

(f) The department and health care providers may use the

registry to provide notices by mail, telephone, personal contact,

or other means to an individual or the individual's legally

authorized representative regarding an individual who is due or

overdue for a particular type of immunization according to the

department's immunization schedule for children or another

analogous schedule recognized by the department for individuals

18 years of age or older. The department shall consult with

health care providers to determine the most efficient and

cost-effective manner of using the registry to provide those

notices.

(g) The department shall provide instruction and education to

providers about the immunization registry provider application

and enrollment process. The department shall:

(1) initially target providers in the geographic regions of the

state with immunization rates below the state average for

preschool children; and

(2) expedite the processing of provider applications.

(h) Nothing in this section diminishes a parent's, managing

conservator's, or guardian's responsibility for having a child

immunized properly, subject to Section 161.004(d).

(i) A person, including a health care provider, payor, or an

employee of the department who submits or obtains in good faith

immunization data elements to or from the department in

compliance with the provisions of this section and any rules

adopted under this section is not liable for any civil damages.

(j) Except as provided by Sections 161.00705, 161.00706,

161.00735(b), and 161.008, information obtained by the department

for the immunization registry is confidential and may be

disclosed only with the written or electronic consent of the

individual or the individual's legally authorized representative.

(k) The executive commissioner of the Health and Human Services

Commission shall adopt rules to implement this section.

Added by Acts 1997, 75th Leg., ch. 900, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.780,

eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1081, Sec. 2.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.03, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 2, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

35, Sec. 1, eff. September 1, 2009.

Sec. 161.00705. RECORDING ADMINISTRATION OF IMMUNIZATION AND

MEDICATION FOR DISASTERS AND EMERGENCIES. (a) The department

shall maintain a registry of persons who receive an immunization,

antiviral, and other medication administered to prepare for a

potential disaster, public health emergency, terrorist attack,

hostile military or paramilitary action, or extraordinary law

enforcement emergency or in response to a declared disaster,

public health emergency, terrorist attack, hostile military or

paramilitary action, or extraordinary law enforcement emergency.

A health care provider who administers an immunization,

antiviral, or other medication shall provide the data elements to

the department.

(b) The department shall maintain the registry as part of the

immunization registry required by Section 161.007.

immunization, antiviral, and other medication administered to

prepare for a potential disaster, public health emergency,

terrorist attack, hostile military or paramilitary action, or

extraordinary law enforcement emergency or in response to a

declared disaster, public health emergency, terrorist attack,

hostile military or paramilitary action, or extraordinary law

enforcement emergency. A health care provider who administers an

immunization, antiviral, or other medication may provide data

related to adverse reactions to the department.

(d) Sections 161.007, 161.0071, 161.0072, and 161.0074 apply to

the data elements submitted to the department under this section,

unless a provision in those sections conflicts with a requirement

in this section.

(e) The executive commissioner of the Health and Human Services

Commission by rule shall determine the period during which the

information collected under this section must remain in the

immunization registry following the end of the disaster, public

health emergency, terrorist attack, hostile military or

paramilitary action, or extraordinary law enforcement emergency.

(f) Unless an individual or the individual's legally authorized

representative consents in writing or electronically to continued

inclusion of the individual's information in the registry, the

department shall remove the immunization records collected under

this section from the registry on expiration of the period

prescribed under Subsection (e).

(g) The immunization information of a child or other individual

received by the department under this section, including

individually identifiable information, may be released only:

(1) on consent of the individual or, if a child, the child's

parent, managing conservator, or guardian; or

(2) to a state agency or health care provider consistent with

the purposes of this subchapter or the purposes of aiding or

coordinating communicable disease prevention and control efforts

during a declared disaster, public health emergency, terrorist

attack, hostile military or paramilitary action, or extraordinary

law enforcement emergency.

(h) The report required under Section 161.0074 must also include

the number of complaints received by the department related to

the department's failure to remove information from the registry

as required by Subsection (f).

(i) The executive commissioner of the Health and Human Services

Commission shall adopt rules necessary to implement this section.

Added by Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.02, eff. September 1, 2007.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 3, eff. September 1, 2009.

Sec. 161.00706. FIRST RESPONDER IMMUNIZATION INFORMATION. (a)

A person 18 years of age or older who is a first responder or an

immediate family member of a first responder may:

(1) request that a health care provider who administers an

immunization to the person provide data elements regarding the

immunization to the department for inclusion in the immunization

registry; or

(2) provide the person's immunization history directly to the

department for inclusion in the immunization registry.

(b) A health care provider, on receipt of a request under

Subsection (a)(1), shall submit the data elements to the

department in a format prescribed by the department. The

department shall verify the person's request before including the

information in the immunization registry.

Commission shall:

(1) develop rules to ensure that immunization history submitted

under Subsection (a)(2) is medically verified immunization

information;

(2) develop guidelines for use by the department in informing

first responders about the registry and that registry information

may be released under Section 161.00735; and

(3) adopt rules necessary for the implementation of this

section.

(d) Except as provided by Section 161.00735, a person's

immunization history or data received by the department under

this section may be released only on consent of the person or to

any health care provider licensed or otherwise authorized to

administer vaccines.

(e) A person whose immunization records are included in the

immunization registry as authorized by this section may request

in writing or electronically that the department remove that

information from the registry. Not later than the 10th day after

receiving a request under this subsection, the department shall

remove the person's immunization records from the registry.

(f) The report required under Section 161.0074 must also include

the number of complaints received by the department related to

the department's failure to comply with requests for removal of

information from the registry under Subsection (e).

Added by Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.02, eff. September 1, 2007.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 4, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

35, Sec. 2, eff. September 1, 2009.

Sec. 161.00707. INFORMATION AND EDUCATION FOR FIRST RESPONDERS.

The department shall develop a program for informing first

responders about the immunization registry and educating first

responders about the benefits of being included in the

immunization registry, including:

(1) ensuring that first responders receive necessary

immunizations to prevent the spread of communicable diseases to

which a first responder may be exposed during a public health

emergency, declared disaster, terrorist attack, hostile military

or paramilitary action, or extraordinary law enforcement

emergency; and

(2) preventing duplication of vaccinations.

Added by Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.02, eff. September 1, 2007.

Sec. 161.0071. NOTICE OF RECEIPT OF REGISTRY DATA; EXCLUSION

FROM REGISTRY. (a) The first time the department receives

registry data for an individual for whom the department has

received consent to be included in the registry, the department

shall send notice to the individual or the individual's legally

authorized representative disclosing:

(1) that providers and payors may be sending the individual's

immunization information to the department;

(2) the information that is included in the registry;

(3) the persons to whom the information may be released under

Sections 161.00735(b) and 161.008(d);

(4) the purpose and use of the registry;

(5) the procedure to exclude an individual from the registry;

and

(6) the procedure to report a violation if an individual's

information is included in the registry after exclusion has been

requested or consent has been withdrawn.

(b) On discovering that consent to be included in the registry

has not been granted or has been withdrawn, the department shall

exclude the individual's immunization records from the registry

and any other registry-related department record that

individually identifies the individual.

individual's immunization records from the registry, the

department shall send to the individual or the individual's

legally authorized representative who makes the request a written

confirmation of receipt of the request for exclusion and shall

exclude the individual's records from the registry.

(d) The department commits a violation if the department fails

to exclude an individual's immunization information from the

registry as required by Subsection (b) or (c).

(e) The department shall accept a written or electronic

statement from an individual or the individual's legally

authorized representative communicating to the department that an

individual's information should be excluded from the registry,

including a statement on a minor's birth certificate, as a

request for exclusion under Subsection (c).

Added by Acts 2003, 78th Leg., ch. 1081, Sec. 3, eff. Sept. 1,

2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 5, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

35, Sec. 3, eff. September 1, 2009.

Sec. 161.0072. PROVIDING IMMUNIZATION INFORMATION TO DEPARTMENT.

(a) If the individual or the individual's legally authorized

representative has reasonable concern that the individual's

health care provider is not submitting the immunization history

to the department, the individual or the individual's legally

authorized representative may provide the individual's

immunization history directly to the department to be included in

the immunization registry.

(b) The individual or the individual's legally authorized

representative may send evidence of the individual's immunization

history to the department electronically, by facsimile

transmission, or by mail. The evidence may include a copy of:

(1) the individual's medical record indicating the immunization

history;

(2) an invoice from a health care provider for the immunization;

(3) documentation showing that a claim for the immunization was

paid by a payor.

immunization history submitted by an individual or the

individual's legally authorized representative is medically

verified immunization information.

Added by Acts 2003, 78th Leg., ch. 1081, Sec. 3, eff. Sept. 1,

2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 6, eff. September 1, 2009.

Sec. 161.0073. REGISTRY CONFIDENTIALITY. (a) Except as

provided by Sections 161.00705 and 161.00735, information that

individually identifies an individual that is received by the

department for the immunization registry is confidential and may

be used by the department for registry purposes only.

(b) Unless specifically authorized under this subchapter, the

department may not release registry information to any individual

or entity without the consent of the individual or the

individual's legally authorized representative.

for registry purposes or authorized to receive information from

the registry may not disclose the individually identifiable

information of an individual to any other person without the

written or electronic consent of the individual or the

individual's legally authorized representative, except as

provided by Chapter 159, Occupations Code, or Section 602.053,

Insurance Code.

(d) Registry information is not:

(1) subject to discovery, subpoena, or other means of legal

compulsion for release to any person or entity except as provided

by this subchapter; or

(2) admissible in any civil, administrative, or criminal

proceeding.

Added by Acts 2003, 78th Leg., ch. 1081, Sec. 3, eff. Sept. 1,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 11.127, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.04, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 7, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

35, Sec. 4, eff. September 1, 2009.

Sec. 161.00735. RELEASE AND RECEIPT OF REGISTRY DATA IN

DISASTER. (a) In this section, "disaster" means a disaster

declared by the president of the United States, the governor of

this state, or the governor of another state.

(b) If the department determines that residents of this state

have evacuated or relocated to another state in response to a

disaster, the department may release registry data, except

registry data obtained under Section 161.00705, to the

appropriate health authority of that state or to local health

authorities in that state.

health authority of another state or from a local health

authority in another state if the department determines that

residents of that state have evacuated or relocated to this state

in response to a disaster. The department shall include

information received under this subsection in the registry.

Notwithstanding Section 161.007, the department is not required

to obtain written consent for the inclusion in the registry of

information received under this subsection.

(d) Immunization information received under Subsection (c) is

subject to Section 161.0073, and may not be released except as

authorized by this chapter.

(e) The executive commissioner of the Health and Human Services

Commission, by rule, shall determine the period during which the

information collected under Subsection (c) must remain in the

immunization registry following the end of the disaster.

(f) Unless an individual or, if a child, the child's parent,

managing conservator, or guardian consents in writing to

continued inclusion of the individual's or child's information in

the registry, the department shall remove the immunization

records collected under Subsection (c) from the registry on the

expiration of the period prescribed by Subsection (e).

(g) If an individual or, if a child, the child's parent,

managing conservator, or guardian requests in writing that the

individual's or child's information obtained under Subsection (c)

be removed from the registry, the department shall remove that

information from the registry.

(h) The executive commissioner of the Health and Human Services

Commission shall make every effort to enter into a memorandum of

agreement with each state to which residents of this state are

likely to evacuate in a disaster on:

(1) the release and use of registry information under this

section to the appropriate health authority or local health

authority of that state, including the length of time the

information may be retained by that state; and

(2) the receipt and use of information submitted by the health

authority or local health authority of that state for inclusion

in the registry under this section.

Added by Acts 2009, 81st Leg., R.S., Ch.

35, Sec. 5, eff. September 1, 2009.

Sec. 161.0074. REPORT TO LEGISLATURE. (a) The department shall

report to the Legislative Budget Board, the governor, the

lieutenant governor, the speaker of the house of representatives,

and appropriate committees of the legislature not later than

September 30 of each even-numbered year.

(b) The department shall use the report required under

Subsection (a) to develop ways to increase immunization rates

using state and federal resources.

(1) include the current immunization rates by geographic region

of the state, where available;

(2) focus on the geographic regions of the state with

immunization rates below the state average for preschool

children;

(3) describe the approaches identified to increase immunization

rates in underserved areas and the estimated cost for each;

(4) identify changes to department procedures needed to increase

immunization rates;

(5) identify the services provided under and provisions of

contracts entered into by the department to increase immunization

rates in underserved areas;

(6) identify performance measures used in contracts described by

Subdivision (5);

(7) include the number and type of exemptions used in the past

year;

(8) include the number of complaints received by the department

related to the department's failure to comply with requests for

exclusion of individuals from the registry;

(9) identify all reported incidents of discrimination for

requesting exclusion from the registry or for using an exemption

for a required immunization;

(10) include department recommendations about the best way to

use, and communicate with, local registries in the state; and

(11) include ways to increase provider participation in the

registry.

Added by Acts 2003, 78th Leg., ch. 1081, Sec. 3, eff. Sept. 1,

2003.

Sec. 161.0075. IMMUNITY FROM LIABILITY. Except as provided by

Section 161.009, the following persons subject to this subchapter

that act in compliance with Sections 161.007, 161.00705,

161.00706, 161.0071, 161.0073, 161.0074, and 161.008 are not

civilly or criminally liable for furnishing the information

required under this subchapter:

(1) a payor;

(2) a health care provider who administers immunizations; and

(3) an employee of the department.

Added by Acts 2003, 78th Leg., ch. 1081, Sec. 3, eff. Sept. 1,

2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.05, eff. September 1, 2007.

Sec. 161.0076. COMPLIANCE WITH FEDERAL LAW. If the provisions

of this chapter relating to the use or disclosure of information

in the registry are more stringent than the Health Insurance

Portability and Accountability Act and Privacy Standards, as

defined by Section 181.001, then the use or disclosure of

information in the registry is governed by this chapter.

Added by Acts 2003, 78th Leg., ch. 1081, Sec. 3, eff. Sept. 1,

2003.

Sec. 161.008. IMMUNIZATION RECORD. (a) An immunization record

is part of the immunization registry.

(b) An immunization record contains the:

(1) name and date of birth of the person immunized;

(2) dates of immunization;

(3) types of immunization administered; and

(4) name and address of the health care provider administering

the immunization.

immunization record for an individual from a public health

district, a local health department, the individual or the

individual's legally authorized representative, a physician to

the individual, a payor, or any health care provider licensed or

otherwise authorized to administer vaccines. The department

shall verify consent before including the reported information in

the immunization registry. The department may not retain

individually identifiable information about an individual for

whom consent cannot be verified.

(d) The department may release the data constituting an

immunization record for the individual to:

(1) any entity that is described by Subsection (c);

(2) a school or child care facility in which the individual is

enrolled; or

(3) a state agency having legal custody of the individual.

(e) An individual or the individual's legally authorized

representative may obtain and on request to the department shall

be provided with all individually identifiable immunization

registry information concerning the individual.

(f) A person, including a health care provider, a payor, or an

employee of the department, that submits in good faith an

immunization history or data to or obtains in good faith an

immunization history or data from the department in compliance

with the provisions of this section and any rules adopted under

this section is not liable for any civil damages.

(g) The department may release nonidentifying summary statistics

related to the registry that do not individually identify an

individual.

(h) The executive commissioner of the Health and Human Services

Commission shall adopt rules to implement this section.

Added by Acts 1997, 75th Leg., ch. 900, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 2003, 78th Leg., ch. 1081, Sec. 4, eff.

Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 8, eff. September 1, 2009.

Sec. 161.009. PENALTIES FOR DISCLOSURE OF INFORMATION. (a) A

person commits an offense if the person:

(1) negligently releases or discloses immunization registry

information in violation of Section 161.007, 161.0071, 161.0073,

or 161.008;

(2) fails to exclude an individual's immunization information in

violation of Section 161.0071;

(3) fails to remove a person's immunization information in

violation of Section 161.00705, 161.00706, or 161.00735; or

(4) negligently uses information in the immunization registry to

solicit new patients or clients or for other purposes that are

not associated with immunization or quality-of-care purposes,

unless authorized under this section.

(b) An offense under this section is a Class A misdemeanor.

Added by Acts 1997, 75th Leg., ch. 900, Sec. 1, eff. Sept. 1,

1997. Amended by Acts 2003, 78th Leg., ch. 1081, Sec. 5.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.06, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 9, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

35, Sec. 6, eff. September 1, 2009.

Sec. 161.0095. EDUCATION PROGRAMS AND INFORMATION. (a) The

department shall develop:

(1) continuing education programs for health care providers

relating to immunizations and the vaccines for children program

operated by the department under authority of 42 U.S.C. Section

1396s; and

(2) educational information, for health care providers, health

care clinics, hospitals, and any other health care facility that

provides health care to children 14 to 18 years of age, relating

to the immunization registry and the option for an individual who

is 18 years of age or older to consent to submission and

retention of the individual's information in the immunization

registry.

(b) The department shall establish a work group to assist the

department in developing the continuing education programs and

educational information. The work group shall include

physicians, nurses, department representatives, representatives

of managed care organizations that provide health care services

under Chapter 533, Government Code, representatives of health

plan providers that provide health care services under Chapter

62, and members of the public.

Added by Acts 2003, 78th Leg., ch. 613, Sec. 1, eff. Sept. 1,

2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

9, Sec. 10, eff. September 1, 2009.

Sec. 161.010. IMMUNIZATION EDUCATION; STATEWIDE COALITION. (a)

The department shall establish a continuous statewide education

program to educate the public about the importance of immunizing

children and the risks and contraindications of an immunization.

(b) The department shall increase coordination among public and

private local, regional, and statewide entities that have an

interest in immunizations.

Added by Acts 2003, 78th Leg., ch. 125, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.0101. INCREASE IMMUNIZATION AWARENESS. (a) The

department shall develop new public-private partnerships and work

with existing public-private partnership programs, including the

Seniors and Volunteers Program For Childhood Immunization, to

increase public and private awareness of and support for early

childhood immunizations.

(b) The department shall work with the Texas Education Agency to

increase immunization awareness and participation among parents

of preschool and school-age children by:

(1) jointly applying for federal funds for immunization

awareness and vaccination programs; and

(2) creating partnerships with public and private health,

service, and education organizations, including parent-teacher

associations, the United Way, schools, local businesses,

community-based organizations, chambers of commerce, and athletic

booster clubs, to increase awareness and participation in the

state's early childhood vaccination program.

and participation among parents of children in child-care

facilities, as defined by Section 42.002, Human Resources Code,

in the state's early childhood vaccination program by publishing

on the department's website information about the benefits of

annual immunization against influenza for children aged six

months to five years. The department shall work with the

Department of Family and Protective Services and with child-care

facilities to ensure that the information is annually distributed

to parents in August or September.

Added by Acts 2003, 78th Leg., ch. 844, Sec. 1, eff. Sept. 1,

2003.

Renumbered from Health and Safety Code, Section 161.010 by Acts

2005, 79th Leg., Ch.

728, Sec. 23.001(44), eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

922, Sec. 1, eff. June 15, 2007.

Sec. 161.0102. VACCINES FOR CHILDREN PROGRAM; INFLUENZA

VACCINES. (a) In this section, "vaccines for children program"

means the program operated by the department under authority of

42 U.S.C. Section 1396s, as amended.

(b) The department shall allow each health care provider

participating in the vaccines for children program to:

(1) select influenza vaccines from the list of all influenza

vaccines that:

(A) are approved by the United States Food and Drug

Administration and recommended by the federal Advisory Committee

on Immunization Practices; and

(B) are either:

(i) within the limits of the vaccines annually allocated by the

Centers for Disease Control and Prevention of the United States

Public Health Service to the department for the vaccines for

children program; or

(ii) not offered in the annual allocation under Subparagraph

(i), but are available from the Centers for Disease Control and

Prevention of the United States Public Health Service and for

which the Centers for Disease Control and Prevention awards to

the department additional funds; and

(2) use both inactivated influenza vaccines and live, attenuated

influenza vaccines.

Added by Acts 2007, 80th Leg., R.S., Ch.

397, Sec. 1, eff. June 15, 2007.

Text of section effective until September 01, 2010

Sec. 161.0103. VACCINES FOR CHILDREN PROGRAM; EQUIVALENT

VACCINES. (a) In this section:

(1) "Vaccines for children program" means the program operated

by the department under authority of 42 U.S.C. Section 1396s.

(2) "Equivalent vaccines" means two or more vaccines, excluding

the influenza vaccine, that protect a recipient of a vaccine

against the same infection or infections, that require the same

number of doses, and that have similar safety and efficacy

profiles and which are recommended for comparable populations.

(b) Except as provided by Subsection (d), where two or more

manufacturers produce equivalent vaccines, the department shall

procure an equal supply of the vaccine from each manufacturer.

(1) approved by the United States Food and Drug Administration;

(2) recommended by the federal Advisory Committee on

Immunization Practices; and

(3) made available to the department by the Centers for Disease

Control and Prevention of the United States Public Health

Service.

(d) The department shall procure an equal supply of each

equivalent vaccine under Subsection (b) only if the cost to the

department of providing each equivalent vaccine is not more than

110 percent of the lowest-priced equivalent vaccine.

Added by Acts 2007, 80th Leg., R.S., Ch.

397, Sec. 2, eff. June 15, 2007.

Sec. 161.01035. PROVIDER CHOICE SYSTEM. (a) The department

shall implement a provider choice system for the vaccines for

children program operated by the department under authority of 42

U.S.C. Section 1396s and the adult safety net vaccination

program.

(b) The department shall ensure that eligible health care

providers participating in the vaccines for children program or

the adult safety net vaccination program may select any licensed

vaccine, including combination vaccines and any dosage forms

that:

(1) are recommended by the federal Advisory Committee on

Immunization Practices;

(2) are made available to the department by the Centers for

Disease Control and Prevention of the United States Public Health

Service; and

(3) for adult vaccines, are on the department-approved list of

vaccines offered by the adult safety net vaccination program.

means two or more vaccines, excluding the influenza vaccine, that

meet all of the following:

(1) protect a recipient of a vaccine against the same infection

or infections;

(2) require the same number of doses;

(3) have similar safety and efficacy profiles; and

(4) are recommended for comparable populations by the Centers

for Disease Control and Prevention of the United States Public

Health Service.

(d) The department shall provide a vaccine selected by a health

care provider under Subsection (b) only if the cost to the

department of providing the vaccine is not more than 115 percent

of the lowest-priced equivalent vaccine.

(e) This section does not apply in the event of a disaster or

public health emergency, terrorist attack, hostile military or

paramilitary action, or extraordinary law enforcement emergency.

(f) The department shall convene the immunization work group

established under Section 161.0095 and solicit its

recommendations regarding development of a plan for the

implementation of the provider choice system under this section.

The plan shall include the education of participating health care

providers about:

(1) procedures and distribution systems of the Centers for

Disease Control and Prevention of the United States Public Health

Service; and

(2) vaccine options, the enrollment process, ordering,

accountability, and reporting procedures.

Added by Acts 2009, 81st Leg., R.S., Ch.

258, Sec. 1, eff. September 1, 2009.

Sec. 161.0104. DISASTER PREPARATION. The department shall

consult with public health departments and appropriate health

care providers to identify adult immunizations that may be

necessary to respond to or prepare for a disaster or public

health emergency, terrorist attack, hostile military or

paramilitary action, or extraordinary law enforcement emergency.

Added by Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.07, eff. September 1, 2007.

Renumbered from Health and Safety Code, Section 161.0102 by Acts

2009, 81st Leg., R.S., Ch.

87, Sec. 27.001(52), eff. September 1, 2009.

Sec. 161.0105. LIMITATION ON LIABILITY. (a) A health care

provider who acts in compliance with Sections 161.007, 161.00705,

161.00706, and 161.008 and any rules adopted under those sections

is not civilly or criminally liable for furnishing the

information required under those sections. This subsection does

not apply to criminal liability established under Section

161.009.

(b) A person who administers a vaccination under a department

program may be held liable only to the extent the person would be

liable if the person administered the vaccination outside the

program. The person is not liable for damages arising from the

acts or omissions of another person acting under the program or

the department.

immunity created by Sections 161.001 and 161.007(g).

Added by Acts 2003, 78th Leg., ch. 844, Sec. 1, eff. Sept. 1,

2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

258, Sec. 12.08, eff. September 1, 2007.

Sec. 161.0106. RESPIRATORY SYNCYTIAL VIRUS; IMMUNIZATION. As

part of the education programs under Sections 161.0095 and

161.010, the department shall include information about:

(1) respiratory syncytial virus and the importance of

preventative activities for children at risk of contracting the

virus;

(2) respiratory syncytial virus prophylaxis for children who are

at high risk of complications from the disease; and

(3) immunization for respiratory syncytial virus when a vaccine

is recommended and available.

Added by Acts 2005, 79th Leg., Ch.

115, Sec. 1, eff. September 1, 2005.

Sec. 161.0107. ELECTRONIC MEDICAL RECORDS SYSTEMS. (a) In this

section:

(1) "Electronic medical records software package or system"

means an electronic system for maintaining medical records in the

clinical setting.

(2) "Medical records" has the meaning assigned by Section

151.002, Occupations Code.

(b) A person who sells, leases, or otherwise provides an

electronic medical records software package or system to a person

who administers immunizations in this state or to an entity that

manages records for the person shall provide, as part of the

electronic medical records software package or system, the

ability to:

(1) electronically interface with the immunization registry

created under this subchapter; and

(2) generate electronic reports that contain the fields

necessary to populate the immunization registry.

Commission by rule shall specify:

(1) the fields necessary to populate the immunization registry,

including a field that indicates the patient's consent to be

listed in the immunization registry has been obtained; and

(2) the data standards that must be used for electronic

submission of immunization information.

(d) The data standards specified under Subsection (b) must be

compatible with the standards for immunization information

transmission adopted by the Healthcare Information Technology

Standards Panel sponsored by the American National Standards

Institute and included in certification criteria by the

Certification Commission for Healthcare Information Technology.

Added by Acts 2007, 80th Leg., R.S., Ch.

352, Sec. 1, eff. June 15, 2007.

Sec. 161.0108. INJUNCTION. (a) The attorney general may bring

an action in the name of the state to enjoin a violation of

Section 161.0107.

(b) If the state prevails in a suit under this section, the

attorney general may recover on behalf of the state reasonable

attorney's fees, court costs, and reasonable investigative costs

incurred in relation to the proceeding.

Added by Acts 2007, 80th Leg., R.S., Ch.

352, Sec. 1, eff. June 15, 2007.

Sec. 161.0109. HUMAN PAPILLOMAVIRUS; VACCINES EDUCATION

MATERIALS. (a) The department, using existing resources, shall

produce and distribute informational materials regarding vaccines

against human papillomavirus that are approved by the United

States Food and Drug Administration for human use. The materials

must include information relating to the effectiveness,

availability, and contraindications of the vaccines. The

materials must be available in English and in Spanish.

(b) The department shall collaborate with the Texas Cancer

Council or its successor entity to develop educational programs

for parents regarding human papillomavirus and promoting

awareness of a minor's need for preventive services for cervical

cancer and its precursors.

website that targets the public and health care professionals and

provides accurate, comprehensive information on all aspects of

cervical cancer prevention, including vaccination against human

papillomavirus.

Added by Acts 2007, 80th Leg., R.S., Ch.

59, Sec. 1, eff. September 1, 2007.

Renumbered from Health and Safety Code, Section 161.0107 by Acts

2009, 81st Leg., R.S., Ch.

87, Sec. 27.001(53), eff. September 1, 2009.

SUBCHAPTER B. HEALTH INSPECTION OF PRIVATE RESIDENCE

Sec. 161.011. PERMISSION REQUIRED. A person, including an

officer or agent of this state or of an instrumentality or

political subdivision of this state, may not enter a private

residence to conduct a health inspection without first receiving:

(1) permission obtained from a lawful adult occupant of the

residence; or

(2) an authorization to inspect the residence for a specific

public health purpose by a magistrate or by an order of a court

of competent jurisdiction on a showing of a probable violation of

a state health law, a control measure under Chapter 81, or a

health ordinance of a political subdivision.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.189, eff. Sept.

1, 2003.

Sec. 161.012. CRIMINAL PENALTIES. (a) A person commits an

offense if the person violates Section 161.011. An offense under

this subsection is punishable by confinement in the Texas

Department of Criminal Justice for not more than two years, a

fine of not more than $1,000, or both.

(b) A person commits an offense if the person knowingly gives

evidence obtained in violation of Section 161.011 to the federal

government or to an instrumentality of the federal government. An

offense under this subsection is punishable by confinement in the

county jail for not more than one year, a fine of not more than

$500, or both.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 25.092, eff. September 1, 2009.

SUBCHAPTER C. PROVISION OF INFORMATION RELATING TO CERTAIN HEALTH

CONDITIONS

Sec. 161.021. AUTHORIZATION TO PROVIDE INFORMATION; USE OF

INFORMATION; LIABILITY. (a) Unless prohibited by other law, a

person, including a hospital, sanatorium, nursing home, rest

home, medical society, cancer registry, or other organization,

may provide interviews, reports, statements, memoranda, or other

information relating to the condition and treatment of any

person, to be used in a study to reduce morbidity or mortality or

to identify persons who may need immunization, to:

(1) the department;

(2) a person that makes inquiries under immunization surveys

conducted for the department;

(3) a medical organization;

(4) a hospital;

(5) a hospital committee; or

(6) a cancer registry, including a cancer registry of a cancer

treatment center as defined by Section 82.002.

(b) A person is not liable for damages or other relief for:

(1) providing the information;

(2) releasing or publishing the findings or conclusions to

advance medical research or medical education; or

(3) releasing or publishing a general summary of those studies.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1997, 75th Leg., ch. 343, Sec. 3, eff. May 27,

1997; Acts 1999, 76th Leg., ch. 1411, Sec. 23.03, eff. Sept. 1,

1999.

Sec. 161.0211. EPIDEMIOLOGIC OR TOXICOLOGIC INVESTIGATIONS. (a)

Under its duty to protect the public health, the department

shall conduct epidemiologic or toxicologic investigations of

human illnesses or conditions and of environmental exposures that

are harmful or believed to be harmful to the public health.

(b) The department may conduct those investigations to determine

the nature and extent of the disease or environmental exposure

believed to be harmful to the public health. Any findings or

determinations from such investigations that relate to

environmental exposures believed to be harmful to the public

shall be reported in writing to the Texas Natural Resource

Conservation Commission and the two agencies shall coordinate

corrective measures as appropriate. The department shall use

generally accepted methods of epidemiology or toxicology in the

conduct of an investigation.

toxicologic, or environmental information to the department as

described by Section 81.061(c).

(d) A person is not liable for damages or other relief for

providing medical or other confidential information to the

department during an epidemiologic or toxicologic investigation.

Added by Acts 1993, 73rd Leg., ch. 34, Sec. 1, eff. Sept. 1,

1993.

Sec. 161.0212. RIGHT OF ENTRY. To conduct an epidemiologic or

toxicologic investigation, the commissioner or the commissioner's

designee has the same authority to investigate, sample, inspect,

and enter as that described by Sections 81.061, 81.063, 81.064,

and 81.065.

Added by Acts 1993, 73rd Leg., ch. 34, Sec. 1, eff. Sept. 1,

1993.

Sec. 161.0213. CONFIDENTIALITY. Reports, records, and

information furnished to the commissioner or the commissioner's

designee or the Texas Natural Resource Conservation Commission

that relate to an epidemiologic or toxicologic investigation of

human illnesses or conditions and of environmental exposures that

are harmful or believed to be harmful to the public health are

not public information under Chapter 552, Government Code, and

are subject to the same confidentiality requirements as described

by Section 81.046.

Added by Acts 1993, 73rd Leg., ch. 34, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(88),

eff. Sept. 1, 1995.

Sec. 161.022. USE AND PUBLICATION RESTRICTIONS; CONFIDENTIALITY.

(a) The department, a medical organization, a hospital, a

hospital committee, or a cancer registry may use or publish

information under Section 161.021 only to advance medical

research or medical education in the interest of reducing

morbidity or mortality, except that a summary of the studies may

be released by those persons for general publication.

(b) The identity of a person whose condition or treatment has

been studied is confidential and may not be revealed except in

immunization surveys conducted for the department to identify

persons who need immunization.

information, other than immunization information, furnished under

this chapter and any findings or conclusions resulting from the

study of that information, are privileged.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1997, 75th Leg., ch. 343, Sec. 4, eff. May 27,

1997.

Sec. 161.023. NO LIABILITY FOR REPORTS TO MEDICAL COMMITTEE.

(a) This section applies to:

(1) a physician, hospital, medical organization, university

health science center, university medical school, or an officer

or employee of that person or entity; and

(2) a health maintenance organization or an officer, employee,

or agent of the health maintenance organization, including an

independent practice association or other physician association

contracting with the health maintenance organization.

(b) A person or entity covered by this section is not liable for

damages to any person for furnishing information, reports, or

records to a medical committee relating to a patient:

(1) examined or treated by the physician; or

(2) treated or confined in:

(A) the hospital;

(B) a clinic or facility staffed or operated by a university

health science center or university medical school; or

by a health maintenance organization.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 161.024. APPLICATION TO HEALTH MAINTENANCE ORGANIZATION.

This subchapter does not apply to a function of a health

maintenance organization other than medical peer review and

quality assurance conducted under Chapter 843, Insurance Code,

the rules adopted under that chapter, or other applicable state

and federal statutes and rules.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 10A.524, eff.

Sept. 1, 2003.

SUBCHAPTER D. MEDICAL COMMITTEES, MEDICAL PEER REVIEW COMMITTEES,

AND COMPLIANCE OFFICERS

Sec. 161.031. MEDICAL COMMITTEE DEFINED. (a) In this

subchapter, "medical committee" includes any committee, including

a joint committee, of:

(1) a hospital;

(2) a medical organization;

(3) a university medical school or health science center;

(4) a health maintenance organization licensed under Chapter

843, Insurance Code, including an independent practice

association or other physician association whose committee or

joint committee is a condition of contract with the health

maintenance organization;

(5) an extended care facility;

(6) a hospital district; or

(7) a hospital authority.

(b) The term includes a committee appointed ad hoc to conduct a

specific investigation or established under state or federal law

or rule or under the bylaws or rules of the organization or

institution.

of one or more health care systems if each health care system

includes one or more of the entities listed in Subsection (a).

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1997, 75th Leg., ch. 655, Sec. 1, eff. June 11,

1997; Acts 1999, 76th Leg., ch. 908, Sec. 3, eff. June 18, 1999;

Acts 2003, 78th Leg., ch. 1276, Sec. 10A.525, eff. Sept. 1, 2003.

Sec. 161.0315. AUTHORITY OF GOVERNING BODY TO FORM COMMITTEE TO

EVALUATE MEDICAL AND HEALTH CARE SERVICES. (a) The governing

body of a hospital, medical organization, university medical

school or health science center, health maintenance organization,

extended care facility, hospital district, or hospital authority

may form a medical peer review committee, as defined by Section

151.002, Occupations Code, or a medical committee, as defined by

Section 161.031, to evaluate medical and health care services,

except as provided by this section.

(b) Except as provided by Subsection (d), a medical peer review

committee or medical committee formed by the governing body of a

hospital district may not evaluate medical and health care

services provided by a health care facility that:

(1) contracts with the district to provide those services; and

(2) has formed a medical peer review committee or medical

committee to evaluate the services provided by the facility.

care facility described by Subsection (b) a provision that allows

the governing body of the district to appoint a specified number

of members to the facility's medical peer review committee or

medical committee to evaluate medical and health care services

for which the district contracts with the facility to provide.

The governing body of a hospital district may receive a report

from the facility's medical peer review committee or medical

committee under this section in a closed meeting. A report,

information, or a record that the district receives from the

facility related to a review action conducted under the terms of

the contract is:

(1) confidential;

(2) not subject to disclosure under Chapter 552, Government

Code; and

(3) subject to the same confidentiality and disclosure

requirements to which a report, information, or record of a

medical peer review committee under Section 160.006, Occupations

Code, is subject.

(d) If a hospital district and a health care facility described

by Subsection (b) do not agree on a contract provision described

by Subsection (c), the hospital district has, with respect to a

review action for the evaluation of medical and health care

services provided by the facility under a contract with the

district, a right to:

(1) initiate the review action;

(2) appoint from the medical staff of the facility a number of

members to the facility's medical peer review committee or

medical committee equal to the number of members appointed to the

committee by the facility to conduct the review action, without

regard to whether the district initiates the action; and

(3) receive records, information, or reports from the medical

peer review committee or medical committee related to the review

action.

(e) The governing body of a hospital district may receive a

report under Subsection (d)(3) in a closed meeting. A report,

information, or a record that the hospital district receives

under Subsection (d)(3) is:

(1) confidential;

(2) not subject to disclosure under Chapter 552, Government

Code; and

(3) subject to the same confidentiality and disclosure

requirements to which a report, information, or record of a

medical peer review committee under Section 160.006, Occupations

Code, is subject.

(f) A medical peer review committee or medical committee formed

by the governing body of a hospital district may compile a

report, information, or record of the medical and health care

services provided by a health care facility described by

Subsection (b) and submit the compilation to the facility's

medical peer review committee or medical committee. A report,

information, or record compiled under this subsection is:

(1) confidential;

(2) not subject to disclosure under Chapter 552, Government

Code; and

(3) subject to the same confidentiality and disclosure

requirements to which a report, information, or record of a

medical peer review committee under Section 160.007, Occupations

Code, is subject.

Added by Acts 1999, 76th Leg., ch. 908, Sec. 6, eff. June 18,

1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.781,

eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 721, Sec. 1, eff.

Sept. 1, 2003.

Sec. 161.032. RECORDS AND PROCEEDINGS CONFIDENTIAL. (a) The

records and proceedings of a medical committee are confidential

and are not subject to court subpoena.

(b) Notwithstanding Section 551.002, Government Code, the

following proceedings may be held in a closed meeting following

the procedures prescribed by Subchapter E, Chapter 551,

Government Code:

(1) a proceeding of a medical peer review committee, as defined

by Section 151.002, Occupations Code, or medical committee; or

(2) a meeting of the governing body of a public hospital,

hospital district, hospital authority, or health maintenance

organization of a public hospital, hospital authority, hospital

district, or state-owned teaching hospital at which the governing

body receives records, information, or reports provided by a

medical committee, medical peer review committee, or compliance

officer.

medical peer review committee, or compliance officer and records,

information, or reports provided by a medical committee, medical

peer review committee, or compliance officer to the governing

body of a public hospital, hospital district, or hospital

authority are not subject to disclosure under Chapter 552,

Government Code.

(d) The records and proceedings may be used by the committee and

the committee members only in the exercise of proper committee

functions.

(e) The records, information, and reports received or maintained

by a compliance officer retain the protection provided by this

section only if the records, information, or reports are

received, created, or maintained in the exercise of a proper

function of the compliance officer as provided by the Office of

Inspector General of the United States Department of Health and

Human Services.

(f) This section and Subchapter A, Chapter 160, Occupations

Code, do not apply to records made or maintained in the regular

course of business by a hospital, health maintenance

organization, medical organization, university medical center or

health science center, hospital district, hospital authority, or

extended care facility.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 625, Sec. 6, eff. Sept. 1,

1993; Acts 1999, 76th Leg., ch. 908, Sec. 4, eff. June 18, 1999;

Acts 2001, 77th Leg., ch. 1511, Sec. 3, eff. Sept. 1, 2001.

Sec. 161.033. IMMUNITY FOR COMMITTEE MEMBERS. A member of a

medical committee is not liable for damages to a person for an

action taken or recommendation made within the scope of the

functions of the committee if the committee member acts without

malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to the committee

member.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

SUBCHAPTER E. REPORTS OF GUNSHOT WOUNDS AND CONTROLLED SUBSTANCE

OVERDOSES

Sec. 161.041. MANDATORY REPORTING OF GUNSHOT WOUNDS. A

physician who attends or treats, or who is requested to attend or

treat, a bullet or gunshot wound, or the administrator,

superintendent, or other person in charge of a hospital,

sanitorium, or other institution in which a bullet or gunshot

wound is attended or treated or in which the attention or

treatment is requested, shall report the case at once to the law

enforcement authority of the municipality or county in which the

physician practices or in which the institution is located.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1999, 76th Leg., ch. 38, Sec. 1, eff. Sept. 1,

1999.

Sec. 161.042. MANDATORY REPORTING OF CONTROLLED SUBSTANCE

OVERDOSES. (a) A physician who attends or treats, or who is

requested to attend or treat, an overdose of a controlled

substance listed in Penalty Group 1 under Section 481.102, or the

administrator, superintendent, or other person in charge of a

hospital, sanitorium, or other institution in which an overdose

of a controlled substance listed in Penalty Group 1 under Section

481.102 is attended or treated or in which the attention or

treatment is requested, shall report the case at once to the

department.

(b) A physician or other person who reports an overdose of a

controlled substance under this section shall include in the

report information regarding the date of the overdose, the type

of controlled substance used, the sex and approximate age of the

person attended or treated for the overdose or for whom treatment

was sought, the symptoms associated with the overdose, the extent

of treatment made necessary by the overdose, and the patient

outcome. The physician or other person making the report may

provide other demographic information concerning the person

attended or treated or for whom treatment was sought but may not

disclose the person's name or address or any other information

concerning the person's identity.

report under this section is not subject to civil or criminal

liability for damages arising out of the report. An individual

who makes a good-faith report under this section is not subject

to civil or criminal liability for damages arising out of the

report.

Added by Acts 1999, 76th Leg., ch. 38, Sec. 1, eff. Sept. 1,

1999.

Sec. 161.043. CRIMINAL PENALTY. (a) A person commits an

offense if the person is required to report under this subchapter

and intentionally fails to report.

(b) An offense under this section is a misdemeanor punishable by

confinement in jail for not more than six months or by a fine of

not more than $100.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Health and Safety Code Sec. 161.042 and amended

by Acts 1999, 76th Leg., ch. 38, Sec. 1, eff. Sept. 1, 1999.

Sec. 161.044. CONTROLLED SUBSTANCE OVERDOSE INFORMATION

REPOSITORY. (a) The department shall maintain a central

repository for the collection and analysis of information

relating to incidents of a controlled substance overdose for

which a physician or other person is required to report to the

department under Section 161.042. The department may not include

in the repository any information the physician or other person

is precluded from reporting under that section.

(b) The department shall release statistical information

contained in the central repository on the request of a medical

professional or representative of a law enforcement agency.

Added by Acts 1999, 76th Leg., ch. 38, Sec. 1, eff. Sept. 1,

1999.

SUBCHAPTER F. DISCLOSURE OF CERTAIN AGREEMENTS FOR PAYMENT OF

LABORATORY TESTS

Sec. 161.061. LABORATORY INFORMATION REQUIRED. (a) A person

licensed in this state to practice medicine, dentistry, podiatry,

veterinary medicine, or chiropractic may not agree with a

clinical, bioanalytical, or hospital laboratory to make payments

to the laboratory for individual tests, combinations of tests, or

test series for a patient unless:

(1) the person discloses on the bill or statement to the patient

or to a third party payor the name and address of the laboratory

and the net amount paid to or to be paid to the laboratory; or

(2) discloses in writing on request to the patient or third

party payor the net amount.

(b) The disclosure permitted by Subsection (a)(2) must show the

charge for the laboratory test or test series and may include an

explanation, in net dollar amounts or percentages, of the charge

from the laboratory, the charge for handling, and an

interpretation charge.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 161.062. GROUNDS FOR LICENSE DENIAL. The agency

responsible for licensing and regulating a person subject to this

subchapter may, in addition to any other authority granted, deny

a license application or other permission to practice if the

person violates this subchapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

SUBCHAPTER G. HUMAN MILK BANKS

Sec. 161.071. MINIMUM GUIDELINES FOR HUMAN DONOR MILK BANKS.

The department shall establish minimum guidelines for the

procurement, processing, distribution, or use of human milk by

donor milk banks.

Added by Acts 2001, 77th Leg., ch. 379, Sec. 1, eff. Sept. 1,

2001.

SUBCHAPTER H. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS

Sec. 161.081. DEFINITIONS. In this subchapter:

(1) "Cigarette" has the meaning assigned by Section 154.001, Tax

Code.

(2) "Permit holder" has the meaning assigned by Section 154.001

or 155.001, Tax Code, as applicable.

(3) "Retail sale" means a transfer of possession from a retailer

to a consumer in connection with a purchase, sale, or exchange

for value of cigarettes or tobacco products.

(4) "Retailer" has the meaning assigned by Section 154.001 or

155.001, Tax Code, as applicable.

(5) "Tobacco product" has the meaning assigned by Section

155.001, Tax Code.

(6) "Wholesaler" has the meaning assigned by Section 154.001 or

155.001, Tax Code, as applicable.

Amended by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Sept.

1, 1997.

Sec. 161.082. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO PERSONS

YOUNGER THAN 18 YEARS OF AGE PROHIBITED; PROOF OF AGE REQUIRED.

(a) A person commits an offense if the person, with criminal

negligence:

(1) sells, gives, or causes to be sold or given a cigarette or

tobacco product to someone who is younger than 18 years of age;

(2) sells, gives, or causes to be sold or given a cigarette or

tobacco product to another person who intends to deliver it to

someone who is younger than 18 years of age.

(b) If an offense under this section occurs in connection with a

sale by an employee of the owner of a store in which cigarettes

or tobacco products are sold at retail, the employee is

criminally responsible for the offense and is subject to

prosecution.

(d) It is a defense to prosecution under Subsection (a)(1) that

the person to whom the cigarette or tobacco product was sold or

given presented to the defendant apparently valid proof of

identification.

(e) A proof of identification satisfies the requirements of

Subsection (d) if it contains a physical description and

photograph consistent with the person's appearance, purports to

establish that the person is 18 years of age or older, and was

issued by a governmental agency. The proof of identification may

include a driver's license issued by this state or another state,

a passport, or an identification card issued by a state or the

federal government.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 50, eff. Sept. 1,

1991. Renumbered from Health and Safety Code Sec. 161.081 and

amended by Acts 1997, 75th Leg., ch. 671, Sec. 1.01.

Sec. 161.0825. USE OF CERTAIN ELECTRONICALLY READABLE

INFORMATION. (a) In this section, "transaction scan device"

means a device capable of deciphering electronically readable

information on a driver's license, commercial driver's license,

or identification certificate.

(b) A person may access electronically readable information on a

driver's license, commercial driver's license, or identification

certificate for the purpose of complying with Section 161.082.

otherwise disseminated to a third party for any purpose,

including any marketing, advertising, or promotional activities.

The information may be obtained by court order or on proper

request by the comptroller, a law enforcement officer, or a law

enforcement agency.

(d) A person who violates this section commits an offense. An

offense under this section is a Class A misdemeanor.

(e) It is an affirmative defense to prosecution under Section

161.082 that:

(1) a transaction scan device identified a license or

certificate as valid and the defendant accessed the information

and relied on the results in good faith; or

(2) if the defendant is the owner of a store in which cigarettes

or tobacco products are sold at retail, the offense under Section

161.082 occurs in connection with a sale by an employee of the

owner, and the owner had provided the employee with:

(A) a transaction scan device in working condition; and

(B) adequate training in the use of the transaction scan device.

Added by Acts 2005, 79th Leg., Ch.

391, Sec. 1, eff. September 1, 2005.

Sec. 161.083. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO PERSONS

YOUNGER THAN 27 YEARS OF AGE. (a) Pursuant to federal

regulation under 21 C.F.R. Section 897.14(b), a person may not

sell, give, or cause to be sold or given a cigarette or tobacco

product to someone who is younger than 27 years of age unless the

person to whom the cigarette or tobacco product was sold or given

presents an apparently valid proof of identification.

(b) A retailer shall adequately supervise and train the

retailer's agents and employees to prevent a violation of

Subsection (a).

satisfies the requirements of Subsection (a).

(d) Notwithstanding any other provision of law, a violation of

this section is not a violation of this subchapter for purposes

of Section 154.1142 or 155.0592, Tax Code.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Jan. 1,

1998.

Sec. 161.084. WARNING NOTICE. (a) Each person who sells

cigarettes or tobacco products at retail or by vending machine

shall post a sign in a location that is conspicuous to all

employees and customers and that is close to the place at which

the cigarettes or tobacco products may be purchased.

(b) The sign must include the statement:

PURCHASING OR ATTEMPTING TO PURCHASE TOBACCO PRODUCTS BY A MINOR

UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF

TOBACCO PRODUCTS TO A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED

BY LAW. UPON CONVICTION, A CLASS C MISDEMEANOR, INCLUDING A FINE

OF UP TO $500, MAY BE IMPOSED. VIOLATIONS MAY BE REPORTED TO THE

TEXAS COMPTROLLER'S OFFICE BY CALLING (insert toll-free telephone

number). PREGNANT WOMEN SHOULD NOT SMOKE. SMOKERS ARE MORE

LIKELY TO HAVE BABIES WHO ARE BORN PREMATURE OR WITH LOW BIRTH

WEIGHT.

of the sign.

(d) The comptroller on request shall provide the sign without

charge to any person who sells cigarettes or tobacco products.

The comptroller may provide the sign without charge to

distributors of cigarettes or tobacco products or wholesale

dealers of cigarettes or tobacco products in this state for

distribution to persons who sell cigarettes or tobacco products.

A distributor or wholesale dealer may not charge for distributing

a sign under this subsection.

(e) A person commits an offense if the person fails to display a

sign as prescribed by this section. An offense under this

subsection is a Class C misdemeanor.

(f) The comptroller may accept gifts or grants from any public

or private source to perform the comptroller's duties under this

section.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 50, eff. Sept. 1,

1991. Renumbered from Health and Safety Code Sec. 161.082 and

amended by Acts 1997, 75th Leg., ch. 671, Sec. 1.01. Amended by

Acts 2001, 77th Leg., ch. 1141, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

62, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

488, Sec. 2, eff. September 1, 2007.

Sec. 161.085. NOTIFICATION OF EMPLOYEES AND AGENTS. (a) Each

retailer shall notify each individual employed by that retailer

who is to be engaged in retail sales of cigarettes or tobacco

products that state law:

(1) prohibits the sale or distribution of cigarettes or tobacco

products to any person who is younger than 18 years of age as

provided by Section 161.082 and that a violation of that section

is a Class C misdemeanor; and

(2) requires each person who sells cigarettes or tobacco

products at retail or by vending machine to post a warning notice

as provided by Section 161.084, requires each employee to ensure

that the appropriate sign is always properly displayed while that

employee is exercising the employee's duties, and provides that a

violation of Section 161.084 is a Class C misdemeanor.

(b) The notice required by Subsection (a) must be provided

within 72 hours of the date an individual begins to engage in

retail sales of tobacco products. The individual shall signify

that the individual has received the notice required by

Subsection (a) by signing a form stating that the law has been

fully explained, that the individual understands the law, and

that the individual, as a condition of employment, agrees to

comply with the law.

indicate the date of the signature and the current address and

social security number of the individual. The retailer shall

retain the form signed by each individual employed as a retail

sales clerk until the 60th day after the date the individual has

left the employer's employ.

(d) A retailer required by this section to notify employees

commits an offense if the retailer fails, on demand of a peace

officer or an agent of the comptroller, to provide the forms

prescribed by this section. An offense under this section is a

Class C misdemeanor.

(e) It is a defense to prosecution under Subsection (d) to show

proof that the employee did complete, sign, and date the forms

required by Subsections (b) and (c). Proof must be shown to the

comptroller or an agent of the comptroller not later than the

seventh day after the date of a demand under Subsection (d).

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Jan. 1,

1998. Amended by Acts 2001, 77th Leg., ch. 1141, Sec. 2, eff.

Sept. 1, 2001.

Sec. 161.086. VENDOR ASSISTED SALES REQUIRED; VENDING MACHINES.

(a) Except as provided by Subsection (b), a retailer or other

person may not:

(1) offer cigarettes or tobacco products for sale in a manner

that permits a customer direct access to the cigarettes or

tobacco products; or

(2) install or maintain a vending machine containing cigarettes

or tobacco products.

(b) Subsection (a) does not apply to:

(1) a facility or business that is not open to persons younger

than 18 years of age at any time;

(2) that part of a facility or business that is a humidor or

other enclosure designed to store cigars in a climate-controlled

environment; or

(3) a premises for which a person holds a package store permit

issued under the Alcoholic Beverage Code.

warrant, seize, seal, or disable a vending machine installed or

maintained in violation of this section. Property seized under

this subsection must be seized in accordance with, and is subject

to forfeiture to the state in accordance with, Subchapter H,

Chapter 154, Tax Code, and Subchapter E, Chapter 155, Tax Code.

(d) A person commits an offense if the person violates

Subsection (a). An offense under this subsection is a Class C

misdemeanor.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Jan. 1,

1998. Amended by Acts 1999, 76th Leg., ch. 567, Sec. 1, eff.

Sept. 1, 1999.

Sec. 161.087. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS.

(a) A person may not distribute to persons younger than 18 years

of age:

(1) a free sample of a cigarette or tobacco product; or

(2) a coupon or other item that the recipient may use to receive

a free or discounted cigarette or tobacco product or a sample

cigarette or tobacco product.

(b) Except as provided by Subsection (c), a permit holder may

not accept or redeem, offer to accept or redeem, or hire a person

to accept or redeem a coupon or other item that the recipient may

use to receive a free or discounted cigarette or tobacco product

or a sample cigarette or tobacco product if the recipient is

younger than 18 years of age. A coupon or other item that such a

recipient may use to receive a free or discounted cigarette or

tobacco product or a sample cigarette or tobacco product may not

be redeemable through mail or courier delivery.

between permit holders unless the transaction is a retail sale.

(d) A person commits an offense if the person violates this

section. An offense under this subsection is a Class C

misdemeanor.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Sept. 1,

1997.

Sec. 161.088. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a) The

comptroller shall enforce this subchapter in partnership with

local law enforcement agencies and with their cooperation and

shall ensure the state's compliance with Section 1926 of the

federal Public Health Service Act (42 U.S.C. Section 300x-26) and

any implementing regulations adopted by the United States

Department of Health and Human Services. Except as expressly

authorized by law, the comptroller may not adopt any rules

governing the subject matter of this subchapter or Subchapter K,

N, or O.

(b) The comptroller may make block grants to counties and

municipalities to be used by local law enforcement agencies to

enforce this subchapter in a manner that can reasonably be

expected to reduce the extent to which cigarettes and tobacco

products are sold or distributed to persons who are younger than

18 years of age. At least annually, random unannounced

inspections shall be conducted at various locations where

cigarettes and tobacco products are sold or distributed to ensure

compliance with this subchapter. The comptroller shall rely, to

the fullest extent possible, on local law enforcement agencies to

enforce this subchapter.

of this subchapter, the comptroller may enter into interagency

contracts with other state agencies, and those agencies may

assist the comptroller in the administration and enforcement of

this subchapter.

(d) The use of a person younger than 18 years of age to act as a

minor decoy to test compliance with this subchapter shall be

conducted in a fashion that promotes fairness. A person may be

enlisted by the comptroller or a local law enforcement agency to

act as a minor decoy only if the following requirements are met:

(1) written parental consent is obtained for the use of a person

younger than 18 years of age to act as a minor decoy to test

compliance with this subchapter;

(2) at the time of the inspection, the minor decoy is younger

than 17 years of age;

(3) the minor decoy has an appearance that would cause a

reasonably prudent seller of cigarettes or tobacco products to

request identification and proof of age;

(4) the minor decoy carries either the minor's own

identification showing the minor's correct date of birth or

carries no identification, and a minor decoy who carries

identification presents it on request to any seller of cigarettes

or tobacco products; and

(5) the minor decoy answers truthfully any questions about the

minor's age.

(e) The comptroller shall annually prepare for submission by the

governor to the secretary of the United States Department of

Health and Human Services the report required by Section 1926 of

the federal Public Health Service Act (42 U.S.C. Section

300x-26).

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Sept. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 1156, Sec. 1, eff.

Sept. 1, 1999.

Sec. 161.089. PREEMPTION OF LOCAL LAW. This subchapter does not

preempt a local regulation of the sale, distribution, or use of

cigarettes or tobacco products or affect the authority of a

political subdivision to adopt or enforce an ordinance or

requirement relating to the sale, distribution, or use of

cigarettes or tobacco products if the regulation, ordinance, or

requirement:

(1) is compatible with and equal to or more stringent than a

requirement prescribed by this subchapter; or

(2) relates to an issue that is not specifically addressed by

this subchapter or Chapter 154 or 155, Tax Code.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Sept. 1,

1997.

Sec. 161.090. REPORTS OF VIOLATION. A local or state law

enforcement agency or other governmental unit shall notify the

comptroller, on the 10th day of each month, or the first working

day after that date, of any violation of this subchapter that

occurred in the preceding month that the agency or unit detects,

investigates, or prosecutes.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Sept. 1,

1997.

Sec. 161.0901. REPORT OF OFFICE OF SMOKING AND HEALTH. (a) Not

later than January 5th of each odd-numbered year the Office of

Smoking and Health of the department shall report to the

governor, lieutenant governor, and the speaker of the house of

representatives on the status of smoking and the use of tobacco

and tobacco products in this state.

(b) The report must include, at a minimum:

(1) a baseline of statistics and analysis regarding retail

compliance with this subchapter, Subchapter K, and Chapters 154

and 155, Tax Code;

(2) a baseline of statistics and analysis regarding illegal

tobacco sales, including:

(A) sales to minors;

(B) enforcement actions concerning minors; and

(3) tobacco controls and initiatives by the Office of Smoking

and Health of the department, or any other state agency,

including an evaluation of the effectiveness of the controls and

initiatives;

(4) the future goals and plans of the Office of Smoking and

Health of the department to decrease the use of tobacco and

tobacco products;

(5) the educational programs of the Office of Smoking and Health

of the department and the effectiveness of those programs; and

(6) the incidence of use of tobacco and tobacco products by

regions in this state, including use of cigarettes and tobacco

products by ethnicity.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Sept. 1,

1997.

SUBCHAPTER J. EXPOSURE TO LEAD

Sec. 161.101. TESTS FOR EXPOSURE TO LEAD. (a) At the request

of an attending physician, the department shall conduct tests for

lead poisoning if the physician suspects that a person has been

exposed to lead and that the person may have been harmed by that

exposure.

(b) The department shall charge only for the cost to the

department of conducting the test.

Acts 1991, 72nd Leg., ch. 695, Sec. 1, eff. Aug. 26, 1991.

SUBCHAPTER K. PROHIBITION OF CERTAIN CIGARETTE OR TOBACCO PRODUCT

ADVERTISING; FEE

Sec. 161.121. DEFINITIONS. In this subchapter:

(1) "Church" means a facility that is owned by a religious

organization and that is used primarily for religious services.

(2) "Cigarette" has the meaning assigned by Section 154.001, Tax

Code.

(3) "School" means a private or public elementary or secondary

school.

(4) "Sign" means an outdoor medium, including a structure,

display, light device, figure, painting, drawing, message,

plaque, poster, or billboard, that is:

(A) used to advertise or inform; and

(B) visible from the main-traveled way of a street or highway.

(5) "Tobacco product" has the meaning assigned by Section

155.001, Tax Code.

Added by Acts 1993, 73rd Leg., ch. 107, Sec. 5.02(a), eff. Aug.

30, 1993. Amended by Acts 1997, 75th Leg., ch. 671, Sec. 2.01,

eff. Sept. 1, 1997.

Sec. 161.122. PROHIBITION RELATING TO CERTAIN SIGNS; EXCEPTIONS.

(a) Except as provided by this section, a sign containing an

advertisement for cigarettes or tobacco products may not be

located closer than 1,000 feet to a church or school.

(b) The measurement of the distance between the sign containing

an advertisement for cigarettes or tobacco products and an

institution listed in Subsection (a) is from the nearest property

line of the institution to a point on a street or highway closest

to the sign, along street lines and in direct lines across

intersections.

facility owned or leased by a professional sports franchise or in

a facility where professional sports events are held at least 10

times during a 12-month period.

(d) In Subsection (c), a "facility" includes a stadium, arena,

or events center and any land or property owned or leased by the

professional sports franchise that is connected to or immediately

contiguous to the stadium, arena, or events center.

(e) Subsection (a) does not apply to a sign containing an

advertisement for cigarettes or tobacco products that, before

September 1, 1997, was located closer than 1,000 feet to a church

or school but that was not located closer than 500 feet to the

church or school.

(f) A person commits an offense if the person places or

authorizes the placement of a sign in violation of this section.

An offense under this subsection is a Class C misdemeanor.

Added by Acts 1993, 73rd Leg., ch. 107, Sec. 5.02(a), eff. Aug.

30, 1993. Amended by Acts 1997, 75th Leg., ch. 671, Sec. 2.01,

eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 209, Sec. 1, eff.

Oct. 1, 2003.

Sec. 161.123. ADVERTISING FEE. (a) A purchaser of advertising

is liable for and shall remit to the comptroller a fee that is 10

percent of the gross sales price of any outdoor advertising of

cigarettes and tobacco products in this state.

(b) The comptroller shall collect the fee and deposit the money

as provided in this section.

not be nullified by contract.

(d) The comptroller shall establish by rule the periods for

collection of the fees and the methods of payment and shall adopt

other rules necessary to administer and enforce this section.

(e) In this section, "gross sales price" means the sum of:

(1) production costs;

(2) media cost; and

(3) cost of sales or commissions paid to an agency or broker.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 2.01, eff. Sept. 1,

1997.

Sec. 161.124. USE OF ADVERTISING FEE. (a) The comptroller

shall deposit the fee collected under Section 161.123 to a

special account in the state treasury called the tobacco

education and enforcement education fund.

(b) Money in the account may be appropriated only for

administration and enforcement of this section, enforcement of

law relating to cigarettes and tobacco products, and the

education advertising campaign and grant program established

under Subchapter O, Chapter 161.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 2.01, eff. Sept. 1,

1997.

Sec. 161.125. ADMINISTRATIVE PENALTY. (a) The comptroller by

order may impose an administrative penalty against a purchaser of

advertising required to comply with Section 161.123 who violates

that section or a rule or order adopted under that section.

(b) The penalty for a violation may be in an amount not to

exceed $5,000. Each day a violation continues or occurs is a

separate violation for purposes of imposing a penalty.

(1) the amount of fees due and owing;

(2) attempted concealment of misconduct by the person who

committed the violation;

(3) premeditated misconduct by the person who committed the

violation;

(4) intentional misconduct by the person who committed the

violation;

(5) the motive of the person who committed the violation;

(6) prior misconduct of a similar or related nature by the

person who committed the violation;

(7) prior written warnings or written admonishments from any

government agency or official regarding statutes or regulations

pertaining to the misconduct;

(8) violation by the person who committed the violation of an

order of the comptroller;

(9) lack of rehabilitative potential or likelihood for future

misconduct of a similar nature;

(10) relevant circumstances increasing the seriousness of the

misconduct; and

(11) any other matter justice may require.

(d) The comptroller shall prescribe the procedure by which the

comptroller may impose an administrative penalty under this

section.

(e) A proceeding under this section is subject to Chapter 2001,

Government Code.

(f) If the comptroller by order finds that a violation has

occurred and imposes an administrative penalty, the comptroller

shall give notice to the person of the comptroller's order. The

notice must include a statement of the rights of the person to

judicial review of the order.

(g) If the purchaser of advertising does not pay the amount of

the penalty, the comptroller may refer the matter to the attorney

general for collection of the amount of the penalty.

(h) A penalty collected under this section shall be deposited in

the general revenue fund.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 2.01, eff. Sept. 1,

1997.

SUBCHAPTER L. ABUSE, NEGLECT, AND UNPROFESSIONAL OR UNETHICAL

CONDUCT IN HEALTH CARE FACILITIES

Sec. 161.131. DEFINITIONS. In this subchapter:

(1) "Abuse" has the meaning assigned by the federal Protection

and Advocacy for Mentally Ill Individuals Act of 1986 (42 U.S.C.

Section 10801 et seq.).

(2) "Comprehensive medical rehabilitation" means the provision

of rehabilitation services that are designed to improve or

minimize a person's physical or cognitive disabilities, maximize

a person's functional ability, or restore a person's lost

functional capacity through close coordination of services,

communication, interaction, and integration among several

professions that share the responsibility to achieve team

treatment goals for the person.

(3) "Hospital" has the meaning assigned by Section 241.003.

(4) "Illegal conduct" means conduct prohibited by law.

(5) "Inpatient mental health facility" has the meaning assigned

by Section 571.003.

(6) "License" means a state agency permit, certificate,

approval, registration, or other form of permission required by

state law.

(7) "Mental health facility" has the meaning assigned by Section

571.003.

(8) "Neglect" has the meaning assigned by the federal Protection

and Advocacy for Mentally Ill Individuals Act of 1986 (42 U.S.C.

Section 10801 et seq.).

(9) "State health care regulatory agency" means a state agency

that licenses a health care professional.

(10) "Treatment facility" has the meaning assigned by Section

464.001.

(11) "Unethical conduct" means conduct prohibited by the ethical

standards adopted by state or national professional organizations

for their respective professions or by rules established by the

state licensing agency for the respective profession.

(12) "Unprofessional conduct" means conduct prohibited under

rules adopted by the state licensing agency for the respective

profession.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 1.01, eff. Sept. 1,

1993.

Sec. 161.132. REPORTS OF ABUSE AND NEGLECT OR OF ILLEGAL,

UNPROFESSIONAL, OR UNETHICAL CONDUCT. (a) A person, including

an employee, volunteer, or other person associated with an

inpatient mental health facility, a treatment facility, or a

hospital that provides comprehensive medical rehabilitation

services, who reasonably believes or who knows of information

that would reasonably cause a person to believe that the physical

or mental health or welfare of a patient or client of the

facility who is receiving chemical dependency, mental health, or

rehabilitation services has been, is, or will be adversely

affected by abuse or neglect caused by any person shall as soon

as possible report the information supporting the belief to the

agency that licenses the facility or to the appropriate state

health care regulatory agency.

(b) An employee of or other person associated with an inpatient

mental health facility, a treatment facility, or a hospital that

provides comprehensive medical rehabilitation services, including

a health care professional, who reasonably believes or who knows

of information that would reasonably cause a person to believe

that the facility or an employee of or health care professional

associated with the facility has, is, or will be engaged in

conduct that is or might be illegal, unprofessional, or unethical

and that relates to the operation of the facility or mental

health, chemical dependency, or rehabilitation services provided

in the facility shall as soon as possible report the information

supporting the belief to the agency that licenses the facility or

to the appropriate state health care regulatory agency.

the requirements provided by Chapter 261, Family Code, and

Chapter 48, Human Resources Code.

(d) The Texas Board of Mental Health and Mental Retardation,

Texas Board of Health, Texas Commission on Alcohol and Drug

Abuse, and each state health care regulatory agency by rule

shall:

(1) prescribe procedures for the investigation of reports

received under Subsection (a) or (b) and for coordination with

and referral of reports to law enforcement agencies or other

appropriate agencies; and

(2) prescribe follow-up procedures to ensure that a report

referred to another agency receives appropriate action.

(e) Each hospital, inpatient mental health facility, and

treatment facility shall prominently and conspicuously post for

display in a public area of the facility that is readily

available to patients, residents, volunteers, employees, and

visitors a statement of the duty to report under this section.

The statement must be in English and in a second language and

contain a toll-free telephone number that a person may call to

report.

(f) Each state health care regulatory agency by rule shall

provide for appropriate disciplinary action against a health care

professional licensed by the agency who fails to report as

required by this section.

(g) An individual who in good faith reports under this section

is immune from civil or criminal liability arising from the

report. That immunity extends to participation in an

administrative or judicial proceeding resulting from the report

but does not extend to an individual who caused the abuse or

neglect or who engaged in the illegal, unprofessional, or

unethical conduct.

(h) A person commits an offense if the person:

(1) intentionally, maliciously, or recklessly reports false

material information under this section; or

(2) fails to report as required by Subsection (a).

(i) An offense under Subsection (h) is a Class A misdemeanor.

(j) In this section, "abuse" includes coercive or restrictive

actions that are illegal or not justified by the patient's

condition and that are in response to the patient's request for

discharge or refusal of medication, therapy, or treatment.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 1.01, eff. Sept. 1,

1993. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.41, eff.

Sept. 1, 1997.

Sec. 161.133. MEMORANDUM OF UNDERSTANDING ON INSERVICE TRAINING.

(a) The Texas Board of Mental Health and Mental Retardation,

Texas Board of Health, and Texas Commission on Alcohol and Drug

Abuse by rule shall adopt a joint memorandum of understanding

that requires each inpatient mental health facility, treatment

facility, or hospital that provides comprehensive medical

rehabilitation services to annually provide as a condition of

continued licensure a minimum of eight hours of inservice

training designed to assist employees and health care

professionals associated with the facility in identifying patient

abuse or neglect and illegal, unprofessional, or unethical

conduct by or in the facility.

(b) The memorandum must prescribe:

(1) minimum standards for the training program; and

(2) a means for monitoring compliance with the requirement.

necessary not later than the last month of each state fiscal

year.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 1.01, eff. Sept. 1,

1993.

Sec. 161.134. RETALIATION AGAINST EMPLOYEES PROHIBITED. (a) A

hospital, mental health facility, or treatment facility may not

suspend or terminate the employment of or discipline or otherwise

discriminate against an employee for reporting to the employee's

supervisor, an administrator of the facility, a state regulatory

agency, or a law enforcement agency a violation of law, including

a violation of this chapter, a rule adopted under this chapter,

or a rule adopted by the Texas Board of Mental Health and Mental

Retardation, the Texas Board of Health, or the Texas Commission

on Alcohol and Drug Abuse.

(b) A hospital, mental health facility, or treatment facility

that violates Subsection (a) is liable to the person

discriminated against. A person who has been discriminated

against in violation of Subsection (a) may sue for injunctive

relief, damages, or both.

recover actual damages, including damages for mental anguish even

if an injury other than mental anguish is not shown.

(d) In addition to an award under Subsection (c), a plaintiff

who prevails in a suit under this section may recover exemplary

damages and reasonable attorney fees.

(e) In addition to amounts recovered under Subsections (c) and

(d), a plaintiff is entitled to, if applicable:

(1) reinstatement in the plaintiff's former position;

(2) compensation for lost wages; and

(3) reinstatement of lost fringe benefits or seniority rights.

(f) A plaintiff suing under this section has the burden of

proof, except that it is a rebuttable presumption that the

plaintiff's employment was suspended or terminated, or that the

employee was disciplined or discriminated against, for making a

report related to a violation if the suspension, termination,

discipline, or discrimination occurs before the 60th day after

the date on which the plaintiff made a report in good faith.

(g) A suit under this section may be brought in the district

court of the county in which:

(1) the plaintiff was employed by the defendant; or

(2) the defendant conducts business.

(h) A person who alleges a violation of Subsection (a) must sue

under this section before the 180th day after the date the

alleged violation occurred or was discovered by the employee

through the use of reasonable diligence.

(i) This section does not abrogate any other right to sue or

interfere with any other cause of action.

(j) Each hospital, mental health facility, and treatment

facility shall prominently and conspicuously post for display in

a public area of the facility that is readily available to

patients, residents, employees, and visitors a statement that

employees and staff are protected from discrimination or

retaliation for reporting a violation of law. The statement must

be in English and in a second language.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 1.01, eff. Sept. 1,

1993.

Sec. 161.135. RETALIATION AGAINST NONEMPLOYEES PROHIBITED. (a)

A hospital, mental health facility, or treatment facility may not

retaliate against a person who is not an employee for reporting a

violation of law, including a violation of this chapter, a rule

adopted under this chapter, or a rule adopted by the Texas Board

of Mental Health and Mental Retardation, the Texas Board of

Health, or the Texas Commission on Alcohol and Drug Abuse.

(b) A hospital, mental health facility, or treatment facility

that violates Subsection (a) is liable to the person retaliated

against. A person who has been retaliated against in violation of

Subsection (a) may sue for injunctive relief, damages, or both.

except that it is a rebuttable presumption that the plaintiff was

retaliated against if:

(1) before the 60th day after the date on which the plaintiff

made a report in good faith, the hospital, mental health

facility, or treatment facility:

(A) discriminates in violation of Section 161.134 against a

relative who is an employee of the facility;

(B) transfers, disciplines, suspends, terminates, or otherwise

discriminates against the person or a relative who is a volunteer

in the facility or who is employed under the patient work program

administered by the Texas Department of Mental Health and Mental

Retardation;

person or a relative of the person; or

(D) transfers, discharges, punishes, or restricts the privileges

of the person or a relative of the person who is receiving

inpatient or outpatient services in the facility; or

(2) a person expected to testify on behalf of the plaintiff is

intentionally made unavailable through an action of the facility,

including a discharge, resignation, or transfer.

(d) A plaintiff who prevails in a suit under this section may

recover actual damages, including damages for mental anguish even

if an injury other than mental anguish is not shown.

(e) In addition to an award under Subsection (c), a plaintiff

who prevails in a suit under this section may recover exemplary

damages and reasonable attorney fees.

(f) A suit under this section may be brought in the district

court of the county in which:

(1) the plaintiff received care or treatment; or

(2) the defendant conducts business.

(g) This section does not abrogate any other right to sue or

interfere with any other cause of action.

(h) Each hospital, mental health facility, and treatment

facility shall prominently and conspicuously post for display in

a public area of the facility that is readily available to

patients, residents, employees, and visitors a statement that

nonemployees are protected from discrimination or retaliation for

reporting a violation of law. The statement must be in English

and in a second language. The sign may be combined with the sign

required by Section 161.134(j).

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 1.01, eff. Sept. 1,

1993.

Sec. 161.136. BROCHURE RELATING TO SEXUAL EXPLOITATION. (a) A

state health care regulatory agency by rule may require a mental

health services provider licensed by that agency to provide a

standardized written brochure, in wording a patient can

understand, that summarizes the law prohibiting sexual

exploitation of patients. The brochure must be available in

English and in a second language.

(b) The brochure shall include:

(1) procedures for filing a complaint relating to sexual

exploitation, including any toll-free telephone number available;

and

(2) the rights of a victim of sexual exploitation.

meaning assigned by Section 81.001, Civil Practice and Remedies

Code.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 1.01, eff. Sept. 1,

1993.

Sec. 161.137. PENALTIES. In addition to the penalties

prescribed by this subchapter, a violation of a provision of this

subchapter by an individual or facility that is licensed by a

state health care regulatory agency is subject to the same

consequence as a violation of the licensing law applicable to the

individual or facility or of a rule adopted under that licensing

law.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 1.01, eff. Sept. 1,

1993.

SUBCHAPTER M. MEDICAL OR MENTAL HEALTH RECORDS

Sec. 161.201. DEFINITION. In this subchapter, "health care

provider" means a person who is licensed, certified, or otherwise

authorized by the laws of this state to provide or render health

care in the ordinary course of business or practice of a

profession.

Added by Acts 1995, 74th Leg., ch. 707, Sec. 1, eff. Aug. 28,

1995.

Sec. 161.202. FEES. (a) A health care provider or health care

facility may not charge a fee for a medical or mental health

record requested by a patient or former patient, or by an

attorney or other authorized representative of the patient or

former patient, for use in supporting an application for

disability benefits or other benefits or assistance the patient

or former patient may be eligible to receive based on that

patient's or former patient's disability, or an appeal relating

to denial of those benefits or assistance under:

(1) Chapter 31, Human Resources Code;

(2) the state Medicaid program;

(3) Title II, the federal Social Security Act, as amended (42

U.S.C. Section 401 et seq.);

(4) Title XVI, the federal Social Security Act, as amended (42

U.S.C. Section 1382 et seq.);

(5) Title XVIII, the federal Social Security Act, as amended (42

U.S.C. Section 1395 et seq.);

(6) 38 U.S.C. Section 1101 et seq., as amended; or

(7) 38 U.S.C. Section 1501 et seq., as amended.

(b) A health care provider or health care facility may charge a

fee for the medical or mental health record of a patient or

former patient requested by a state or federal agency in relation

to the patient or former patient's application for benefits or

assistance under Subsection (a) or an appeal relating to denial

of those benefits or assistance.

a record under this section shall include with the request a

statement or document from the department or agency that

administers the issuance of the assistance or benefits that

confirms the application or appeal.

(d) A health care provider or health facility is not required to

provide more than one complete record for a patient or former

patient requested under Subsection (a)(6) or (7) without charge.

If additional material is added to the patient or former

patient's record, on request the health care provider or health

facility shall supplement the record provided under Subsection

(a)(6) or (7) without charge. This subsection does not affect the

ability of a person to receive a medical or mental health record

under Subsections (a)(1)-(5).

Added by Acts 1995, 74th Leg., ch. 707, Sec. 1, eff. Aug. 28,

1995. Amended by Acts 1999, 76th Leg., ch. 201, Sec. 1, eff.

Sept. 1, 1999.

Sec. 161.203. DISTRIBUTION OF RECORDS. A health care provider

or health care facility shall provide to the requestor a medical

or mental health record requested under Section 161.202 not later

than the 30th day after the date on which the provider or

facility receives the request.

Added by Acts 1995, 74th Leg., ch. 707, Sec. 1, eff. Aug. 28,

1995.

Sec. 161.204. APPLICATION OF OTHER LAW. This subchapter

controls over Section 611.0045 of this code and Section 159.006,

Occupations Code, and any other provision that authorizes the

charging of a fee for providing medical or mental health records.

Added by Acts 1995, 74th Leg., ch. 707, Sec. 1, eff. Aug. 28,

1995. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.783,

eff. Sept. 1, 2001.

SUBCHAPTER N. TOBACCO USE BY MINORS

Sec. 161.251. DEFINITIONS. In this subchapter:

(1) "Cigarette" has the meaning assigned by Section 154.001, Tax

Code.

(2) "Tobacco product" has the meaning assigned by Section

155.001, Tax Code.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,

1998.

Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT OF

CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) An

individual who is younger than 18 years of age commits an offense

if the individual:

(1) possesses, purchases, consumes, or accepts a cigarette or

tobacco product; or

(2) falsely represents himself or herself to be 18 years of age

or older by displaying proof of age that is false, fraudulent, or

not actually proof of the individual's own age in order to obtain

possession of, purchase, or receive a cigarette or tobacco

product.

(b) It is an exception to the application of this section that

the individual younger than 18 years of age possessed the

cigarette or tobacco product in the presence of:

(1) an adult parent, a guardian, or a spouse of the individual;

(2) an employer of the individual, if possession or receipt of

the tobacco product is required in the performance of the

employee's duties as an employee.

the individual younger than 18 years of age is participating in

an inspection or test of compliance in accordance with Section

161.088.

(d) An offense under this section is punishable by a fine not to

exceed $250.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,

1998.

Sec. 161.253. TOBACCO AWARENESS PROGRAM; COMMUNITY SERVICE. (a)

On conviction of an individual for an offense under Section

161.252, the court shall suspend execution of sentence and shall

require the defendant to attend a tobacco awareness program

approved by the commissioner. The court may require the parent or

guardian of the defendant to attend the tobacco awareness program

with the defendant.

(b) On request, a tobacco awareness program may be taught in

languages other than English.

another area of this state in which access to a tobacco awareness

program is not readily available, the court shall require the

defendant to perform eight to 12 hours of tobacco-related

community service instead of attending the tobacco awareness

program.

(d) The tobacco awareness program and the tobacco-related

community service are remedial and are not punishment.

(e) Not later than the 90th day after the date of a conviction

under Section 161.252, the defendant shall present to the court,

in the manner required by the court, evidence of satisfactory

completion of the tobacco awareness program or the

tobacco-related community service.

(f) On receipt of the evidence required under Subsection (e),

the court shall:

(1) if the defendant has been previously convicted of an offense

under Section 161.252, execute the sentence, and at the

discretion of the court, reduce the fine imposed to not less than

half the fine previously imposed by the court; or

(2) if the defendant has not been previously convicted of an

offense under Section 161.252, discharge the defendant and

dismiss the complaint or information against the defendant.

(g) If the court discharges the defendant under Subsection

(f)(2), the defendant is released from all penalties and

disabilities resulting from the offense except that the defendant

is considered to have been convicted of the offense if the

defendant is subsequently convicted of an offense under Section

161.252 committed after the dismissal under Subsection (f)(2).

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,

1998.

Sec. 161.254. DRIVER'S LICENSE SUSPENSION OR DENIAL. (a) If

the defendant does not provide the evidence required under

Section 161.253(e) within the period specified by that

subsection, the court shall order the Department of Public Safety

to suspend or deny issuance of any driver's license or permit to

the defendant. The order must specify the period of the

suspension or denial, which may not exceed 180 days after the

date of the order.

(b) The Department of Public Safety shall send to the defendant

notice of court action under Subsection (a) by first class mail.

The notice must include the date of the order and the reason for

the order and must specify the period of the suspension or

denial.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,

1997. Amended by Acts 1999, 76th Leg., ch. 1409, Sec. 8, eff.

Sept. 1, 1999.

Sec. 161.255. EXPUNGEMENT OF CONVICTION. (a) An individual

convicted of an offense under Section 161.252 may apply to the

court to have the conviction expunged. If the court finds that

the individual satisfactorily completed the tobacco awareness

program or tobacco-related community service ordered by the

court, the court shall order the conviction and any complaint,

verdict, sentence, or other document relating to the offense to

be expunged from the individual's record and the conviction may

not be shown or made known for any purpose.

(b) The court shall charge an applicant a fee in the amount of

$30 for each application for expungement filed under this section

to defray the cost of notifying state agencies of orders of

expungement under this section.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,

1998.

Amended by:

Acts 2005, 79th Leg., Ch.

886, Sec. 5, eff. September 1, 2005.

Sec. 161.256. JURISDICTION OF COURTS. A justice court or

municipal court may exercise jurisdiction over any matter in

which a court under this subchapter may:

(1) impose a requirement that a defendant attend a tobacco

awareness program or perform tobacco-related community service;

(2) order the suspension or denial of a driver's license or

permit.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,

1998.

Sec. 161.257. APPLICATION OF OTHER LAW. Title 3, Family Code,

does not apply to a proceeding under this subchapter.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,

1998.

SUBCHAPTER O. PREVENTION OF TOBACCO USE BY MINORS

Sec. 161.301. TOBACCO USE PUBLIC AWARENESS CAMPAIGN. (a) The

commissioner shall develop and implement a public awareness

campaign designed to reduce tobacco use by minors in this state.

The campaign may use advertisements or similar media to provide

educational information about tobacco use.

(b) The commissioner may contract with another person to develop

and implement the public awareness campaign. The contract shall

be awarded on the basis of competitive bids.

to a business that has a proven background in advertising and

public relations campaigns.

(d) The commissioner may not award a contract under Subsection

(b) to:

(1) a person or entity that is required to register with the

Texas Ethics Commission under Chapter 305, Government Code,

except as provided by Subsection (f);

(2) any partner, employee, employer, relative, contractor,

consultant, or related entity of a person or entity described by

Subdivision (1) and not described by Subsection (f); or

(3) a person or entity who has been hired to represent

associations or other entities for the purpose of affecting the

outcome of legislation, agency rules, or other government

policies through grassroots or media campaigns.

(e) The persons or entities described by Subsection (d) are not

eligible to receive the money or participate either directly or

indirectly in the public awareness campaign.

(f) A registrant under Chapter 305, Government Code, is not

ineligible under Subsections (d) and (e) if the person is

required to register under that chapter solely because the person

communicates directly with a member of the executive branch to

influence administrative action concerning a matter relating to

the purchase of products or services by a state agency.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Sept. 1,

1997.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1174, Sec. 6, eff. September 1, 2009.

Sec. 161.302. GRANT PROGRAM FOR YOUTH GROUPS. (a) The entity

administering Section 161.301 shall also develop and implement a

grant program to support youth groups that include as a part of

the group's program components related to reduction of tobacco

use by the group's members.

(b) "Youth group" means a nonprofit organization that:

(1) is chartered as a national or statewide organization;

(2) is organized and operated exclusively for youth recreational

or educational purposes and that includes, as part of the group's

program, in addition to the components described by Subsection

(a), components relating to:

(A) prevention of drug abuse;

(B) character development;

(D) physical and mental fitness;

(3) has been in existence for at least 10 years; and

(4) has a membership of which at least 65 percent is younger

than 22 years of age.

Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Sept. 1,

1997.

SUBCHAPTER P. DISCLOSURE OF INGREDIENTS IN CIGARETTES AND TOBACCO

PRODUCTS

Sec. 161.351. DEFINITIONS. In this subchapter:

(1) "Cigarette" has the meaning assigned by Section 154.001, Tax

Code.

(2) "Manufacturer" has the meanings assigned by Sections 154.001

and 155.001, Tax Code.

(3) "Tobacco product" has the meaning assigned by Section

155.001, Tax Code.

Added by Acts 1997, 75th Leg., ch. 1216, Sec. 1, eff. Sept. 1,

1997. Renumbered from Sec. 161.251 by Acts 1999, 76th Leg., ch.

62, Sec. 19.01(64), eff. Sept. 1, 1999.

Sec. 161.352. REPORT TO DEPARTMENT. (a) Each manufacturer

shall file with the department an annual report for each

cigarette or tobacco product distributed in this state, stating:

(1) the identity of each ingredient in the cigarette or tobacco

product, listed in descending order according to weight, measure,

or numerical count, other than:

(A) tobacco;

(B) water; or

(2) a nicotine yield rating for the cigarette or tobacco product

established under Section 161.353.

(b) This section does not require a manufacturer to disclose the

specific amount of any ingredient in a cigarette or tobacco

product if that ingredient has been approved as safe when burned

and inhaled by the United States Food and Drug Administration or

a successor entity.

an annual report under this section and shall prescribe the form

for the report.

Added by Acts 1997, 75th Leg., ch. 1216, Sec. 1, eff. Sept. 1,

1997. Renumbered from Sec. 161.252 by Acts 1999, 76th Leg., ch.

62, Sec. 19.01(64), eff. Sept. 1, 1999. Amended by Acts 1999,

76th Leg., ch. 62, Sec. 19.02(12), eff. Sept. 1, 1999.

Sec. 161.353. NICOTINE YIELD RATES. (a) Each manufacturer

shall assign a nicotine yield rating to each cigarette or tobacco

product distributed in this state. The rating shall be assigned

in accordance with standards adopted by the department.

(b) The department standards must be developed so that the

nicotine yield rating reflects, as accurately as possible,

nicotine intake for an average consumer of the cigarette or

tobacco product.

Added by Acts 1997, 75th Leg., ch. 1216, Sec. 1, eff. Sept. 1,

1997. Renumbered from Sec. 161.253 by Acts 1999, 76th Leg., ch.

62, Sec. 19.01(64), eff. Sept. 1, 1999.

Sec. 161.354. PUBLIC INFORMATION. (a) Except as provided by

Subsections (b), (c), and (d), information included in a report

filed under this subchapter is public information and is not

confidential unless it is determined to be confidential under

this section.

(b) The department may not disclose information under Subsection

(a) until the department has obtained the advice of the attorney

general under this section with respect to the particular

information to be disclosed. If the attorney general determines

that the disclosure of particular information would constitute an

unconstitutional taking of property, the information is

confidential and the department shall exclude that information

from disclosure.

is confidential if the department determines that there is no

reasonable scientific basis for concluding that the availability

of the information could reduce risks to public health.

(d) Information included in a report filed under this subchapter

is confidential under Chapter 552, Government Code, if the

information would be excepted from public disclosure as a trade

secret under state or federal law.

Added by Acts 1997, 75th Leg., ch. 1216, Sec. 1, eff. Sept. 1,

1997. Renumbered from Sec. 161.254 by Acts 1999, 76th Leg., ch.

62, Sec. 19.01(64), eff. Sept. 1, 1999.

Sec. 161.355. INJUNCTION. (a) A district court, on petition of

the department and on a finding by the court that a manufacturer

has failed to file the report required by Section 161.352, may by

injunction:

(1) prohibit the sale or distribution in this state of a

cigarette or tobacco product manufactured by the manufacturer; or

(2) grant any other injunctive relief warranted by the facts.

(b) The attorney general shall institute and conduct a suit

authorized by this section at the request of the department and

in the name of the state.

County.

Added by Acts 1997, 75th Leg., ch. 1216, Sec. 1, eff. Sept. 1,

1997. Renumbered from Sec. 161.255 by Acts 1999, 76th Leg., ch.

62, Sec. 19.01(64), eff. Sept. 1, 1999. Amended by Acts 1999,

76th Leg., ch. 62, Sec. 19.02(13), eff. Sept. 1, 1999.

SUBCHAPTER Q. INSTALLATION OF ASBESTOS

Sec. 161.401. DEFINITIONS. In this subchapter:

(1) "Asbestos" means the asbestiform varieties of chrysotile,

amosite, crocidolite, tremolite, anthophyllite, and actinolite.

(2) "Contractor" means a person who constructs, repairs, or

maintains a public building as an independent contractor. The

term includes a subcontractor.

(3) "Public building" means a building used or to be used for

purposes that provide for public access or occupancy. The term

does not include:

(A) an industrial facility to which access is limited

principally to employees of the facility because of processes or

functions that are hazardous to human safety or health;

(B) a federal building or installation;

(D) an apartment building with not more than four dwelling

units; or

(E) a manufacturing facility or building that is part of a

facility to which access is limited to workers and invited guests

under controlled conditions.

Added by Acts 2001, 77th Leg., ch. 416, Sec. 1, eff. Sept. 1,

2001.

Sec. 161.402. MATERIAL SAFETY DATA SHEET REQUIRED; ASBESTOS

INSTALLATION OR REINSTALLATION PROHIBITED. The board shall adopt

rules designating the materials or replacement parts for which a

person must obtain a material safety data sheet before installing

the materials or parts in a public building. A person may not

install materials or replacement parts in a public building if:

(1) the person does not obtain a required material safety data

sheet; or

(2) the materials or parts, according to the material safety

data sheet, contain more than one percent asbestos and there is

an alternative material or part.

Added by Acts 2001, 77th Leg., ch. 416, Sec. 1, eff. Sept. 1,

2001.

Sec. 161.403. INJUNCTION. (a) The attorney general or the

appropriate district or county attorney, in the name of the

state, may bring an action for an injunction or other process

against a contractor who is violating or threatening to violate

this subchapter. The action may be brought in a district court of

Travis County or of a county in which any part of the violation

or threatened violation occurs.

(b) The district court may grant any prohibitory or mandatory

relief warranted by the facts, including a temporary restraining

order, temporary injunction, or permanent injunction.

Added by Acts 2001, 77th Leg., ch. 416, Sec. 1, eff. Sept. 1,

2001.

Sec. 161.404. CIVIL PENALTY. (a) A contractor who violates

this subchapter is subject to a civil penalty not to exceed

$10,000 a day for each violation. Each day of violation

constitutes a separate violation for purposes of penalty

assessment.

(b) In determining the amount of the civil penalty, the court

shall consider:

(1) the contractor's previous violations;

(2) the seriousness of the violation, including the nature,

circumstances, extent, and gravity of the violation;

(3) whether the health and safety of the public was threatened

by the violation;

(4) the demonstrated good faith of the contractor; and

(5) the amount necessary to deter future violations.

attorney, in the name of the state, may bring an action under

this section in a district court of Travis County or of a county

in which any part of the violation occurs.

(d) The party bringing the suit may:

(1) combine a suit to assess and recover civil penalties with a

suit for injunctive relief brought under Section 161.403; or

(2) file a suit to assess and recover civil penalties

independently of a suit for injunctive relief.

(e) A penalty collected under this section by the attorney

general shall be deposited in the state treasury to the credit of

the general revenue fund. A penalty collected under this section

by a district or county attorney shall be deposited to the credit

of the general fund of the county in which the suit was heard.

Added by Acts 2001, 77th Leg., ch. 416, Sec. 1, eff. Sept. 1,

2001.

Sec. 161.405. RECOVERY OF COSTS. The party bringing a suit

under Section 161.403 or 161.404 may recover reasonable expenses

incurred in obtaining injunctive relief, civil penalties, or

both, including investigation costs, court costs, reasonable

attorney's fees, witness fees, and deposition expenses.

Added by Acts 2001, 77th Leg., ch. 416, Sec. 1, eff. Sept. 1,

2001.

Sec. 161.406. ADMINISTRATIVE PENALTY. (a) The department may

impose an administrative penalty on a contractor who violates

this subchapter.

(b) The amount of the penalty may not exceed $10,000 a day for a

violation. Each day a violation continues or occurs is a separate

violation for the purpose of imposing a penalty.

(1) the seriousness of the violation, including the nature,

circumstances, extent, and gravity of the violation;

(2) the history of previous violations;

(3) the amount necessary to deter a future violation;

(4) efforts to correct the violation; and

(5) any other matter that justice may require.

(d) The enforcement of the penalty may be stayed during the time

the order is under judicial review if the contractor pays the

penalty to the clerk of the court or files a supersedeas bond

with the court in the amount of the penalty. A contractor who

cannot afford to pay the penalty or file the bond may stay the

enforcement by filing an affidavit in the manner required by the

Texas Rules of Civil Procedure for a party who cannot afford to

file security for costs, subject to the right of the department

to contest the affidavit as provided by those rules.

(e) The attorney general may sue to collect the penalty.

(f) A proceeding to impose the penalty is considered to be a

contested case under Chapter 2001, Government Code.

Added by Acts 2001, 77th Leg., ch. 416, Sec. 1, eff. Sept. 1,

2001.

Sec. 161.407. REMEDIES CUMULATIVE. The civil penalty,

administrative penalty, and injunction authorized by this

subchapter are in addition to any other civil, administrative, or

criminal action provided by law.

Added by Acts 2001, 77th Leg., ch. 416, Sec. 1, eff. Sept. 1,

2001.

SUBCHAPTER R. DELIVERY SALES OF CIGARETTES

Sec. 161.451. DEFINITIONS. In this subchapter:

(1) "Delivery sale" means a sale of cigarettes to a consumer in

this state in which the purchaser submits the order for the sale

by means of a telephonic or other method of voice transmission,

by using the mails or any other delivery service, or through the

Internet or another on-line service, or the cigarettes are

delivered by use of the mails or another delivery service. A sale

of cigarettes is a delivery sale regardless of whether the seller

is located within or without this state. A sale of cigarettes not

for personal consumption to a person who is a wholesale dealer or

a retail dealer is not a delivery sale.

(2) "Delivery service" means a person, including the United

States Postal Service, that is engaged in the commercial delivery

of letters, packages, or other containers.

(3) "Shipping container" means a container in which cigarettes

are shipped in connection with a delivery sale.

(4) "Shipping documents" means a bill of lading, airbill, United

States Postal Service form, or any other document used to

evidence the undertaking by a delivery service to deliver

letters, packages, or other containers.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.452. REQUIREMENTS FOR DELIVERY SALES. (a) A person

may not make a delivery sale of cigarettes to an individual who

is under the age prescribed by Section 161.082.

(b) A person taking a delivery sale order shall comply with:

(1) the age verification requirements prescribed by Section

161.453;

(2) the disclosure requirements prescribed by Section 161.454;

(3) the shipping requirements prescribed by Section 161.455;

(4) the registration and reporting requirements prescribed by

Section 161.456;

(5) the tax collection requirements prescribed by Section

161.457; and

(6) each law of this state that generally applies to sales of

cigarettes that occur entirely within this state, including a

law:

(A) imposing a tax; or

(B) prescribing a permitting or tax-stamping requirement.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.453. AGE VERIFICATION REQUIREMENT. (a) A person may

not mail or ship cigarettes in connection with a delivery sale

order unless before mailing or shipping the cigarettes the person

accepting the delivery sale order first:

(1) obtains from the prospective customer a certification that

includes:

(A) reliable confirmation that the purchaser is at least 18

years of age; and

(B) a statement signed by the prospective purchaser in writing

and under penalty of law:

(i) certifying the prospective purchaser's address and date of

birth;

(ii) confirming that the prospective purchaser understands that

signing another person's name to the certification is illegal,

that sales of cigarettes to an individual under the age

prescribed by Section 161.082 are illegal under state law, and

that the purchase of cigarettes by an individual under that age

is illegal under state law; and

(iii) confirming that the prospective purchaser wants to receive

mailings from a tobacco company;

(2) makes a good faith effort to verify the information

contained in the certification provided by the prospective

purchaser under Subdivision (1) against a commercially available

database or obtains a photocopy or other image of a

government-issued identification bearing a photograph of the

prospective purchaser and stating the date of birth or age of the

prospective purchaser;

(3) sends to the prospective purchaser, by e-mail or other

means, a notice that complies with Section 161.454; and

(4) for an order made over the Internet or as a result of an

advertisement, receives payment for the delivery sale from the

prospective purchaser by a credit or debit card that has been

issued in the purchaser's name or by check.

(b) A person taking a delivery sale order may request that a

prospective purchaser provide the purchaser's e-mail address.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.454. DISCLOSURE REQUIREMENTS. The notice required by

Section 161.453(a)(3) must include a prominent and clearly

legible statement that:

(1) cigarette sales to individuals who are below the age

prescribed by Section 161.082 are illegal under state law;

(2) sales of cigarettes are restricted to those individuals who

provide verifiable proof of age in accordance with Section

161.453; and

(3) cigarette sales are taxable under Chapter 154, Tax Code, and

an explanation of how that tax has been or is to be paid with

respect to the delivery sale.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.455. SHIPPING REQUIREMENTS. (a) A person who mails or

ships cigarettes in connection with a delivery sale order shall:

(1) include as part of the shipping documents a clear and

conspicuous statement: "CIGARETTES: TEXAS LAW PROHIBITS SHIPPING

TO INDIVIDUALS UNDER 18 YEARS OF AGE AND REQUIRES THE PAYMENT OF

ALL APPLICABLE TAXES";

(2) use a method of mailing or shipping that obligates the

delivery service to require:

(A) the purchaser placing the delivery sale order, or an adult

who is at least 18 years of age and who resides at the

purchaser's address, to sign to accept delivery of the shipping

container; and

(B) the person signing to accept delivery of the shipping

container to provide proof, in the form of a government-issued

identification bearing a photograph that the person is:

(i) the addressee or an adult who is at least 18 years of age

and who resides at the purchaser's address; and

(ii) at least 18 years of age if the person appears to be

younger than 27 years of age; and

(3) provide to the delivery service retained to make the

delivery evidence of full compliance with Section 161.457.

(b) A person taking a delivery sale order who delivers the

cigarettes without using a third-party delivery service shall

comply with the requirements prescribed by this subchapter that

apply to a delivery service.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.456. REGISTRATION AND REPORTING REQUIREMENTS. (a) A

person may not make a delivery sale or ship cigarettes in

connection with a delivery sale unless the person first files

with the comptroller a statement that includes:

(1) the person's name and trade name; and

(2) the address of the person's principal place of business and

any other place of business, and the person's telephone number

and e-mail address.

(b) Not later than the 10th day of each month, each person who

has made a delivery sale or shipped or delivered cigarettes in

connection with a delivery sale during the previous month shall

file with the comptroller a memorandum or a copy of the invoice

that provides for each delivery sale:

(1) the name, address, telephone number, and e-mail address of

the individual to whom the delivery sale was made;

(2) the brand or brands of the cigarettes that were sold; and

(3) the quantity of cigarettes that were sold.

amended, is considered to have complied with this section.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.457. COLLECTION OF TAXES. A person who makes a

delivery sale shall collect and remit to the comptroller any

taxes imposed by this state in relation to the delivery sale. A

person is not required to collect and remit any taxes for which

the person has obtained proof, in the form of the presence of

applicable tax stamps or otherwise, that the taxes have already

been paid to this state.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.458. GENERAL OFFENSES. (a) A person commits an

offense if the person violates a provision of this subchapter for

which a criminal penalty is not otherwise provided.

(b) An offense under Subsection (a) is a Class C misdemeanor.

previously been convicted of an offense under this section, the

offense is a Class B misdemeanor.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.459. KNOWING VIOLATION. (a) A person who knowingly

violates a provision of this subchapter or who knowingly submits

a certification under Section 161.453(a)(1) in another person's

name commits an offense.

(b) An offense under this section is a felony of the third

degree.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.460. CIVIL PENALTY FOR NONPAYMENT OF TAX. A person who

fails to pay a tax imposed in connection with a delivery sale

shall pay to the state a civil penalty in an amount equal to five

times the amount of the tax due. The penalty provided by this

section is in addition to any other penalty provided by law.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.461. FORFEITURE. (a) Cigarettes sold or that a person

attempted to sell in a delivery sale that does not comply with

this subchapter are forfeited to the state and shall be

destroyed.

(b) A fixture, equipment, or other material or personal property

on the premises of a person who, with the intent to defraud this

state, fails to comply with this subchapter is forfeited to the

state.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

Sec. 161.462. ENFORCEMENT. The attorney general or the attorney

general's designee may bring an action in a court of this state

to prevent or restrain a violation of this subchapter by any

person or by a person controlling such a person.

Added by Acts 2003, 78th Leg., ch. 730, Sec. 1, eff. Sept. 1,

2003.

SUBCHAPTER S. ALLOCATION OF KIDNEYS AVAILABLE FOR TRANSPLANT

Sec. 161.471. DEFINITION. In this subchapter, "organ

procurement organization" means an organization that is a

qualified organ procurement organization under 42 U.S.C. Section

273 that is currently certified or recertified in accordance with

that federal law.

Added by Acts 2003, 78th Leg., ch. 926, Sec. 1, eff. June 20,

2003.

Renumbered from Health and Safety Code, Section 161.451 by Acts

2005, 79th Leg., Ch.

728, Sec. 23.001(45), eff. September 1, 2005.

Sec. 161.472. FORMATION OF KIDNEY SHARING POOL AND DISTRIBUTION

TO LONGEST WAITING PATIENTS. (a) Under the system for

allocating kidneys available for transplant in this state, to the

extent allowed by federal law, a statewide pool of 20 percent of

the kidneys from deceased donors of each blood type recovered by

each organ procurement organization that has a defined service

area that includes all or part of this state is provided to a

special pool for redistribution to patients who have been waiting

the longest for transplantation in this state.

(b) Medically eligible patients with low panel reactive

antibodies of less than 10 percent who, in terms of accumulated

waiting time, comprise the top 20 percent of all patients waiting

will be put in a pool. As one of those patients receives a

transplant, the patient will be replaced in the pool, in turn, by

the next longest waiting patient. Only accumulated waiting time

will be used to establish priority access to the pool.

match with zero antigen mismatch, assigning points for human

leukocyte antigen (HLA) match will be eliminated by organ

procurement organizations that are participating in the pool

established under Subsection (a).

(d) After a patient has qualified for entry into the pool

established under Subsection (b), the order of distribution is

based solely on the length of time each patient has waited.

(e) Use of the pools will be managed by the federal Organ

Procurement and Transplantation Network.

(f) A panel of appropriate physician specialists of Texas' Organ

Procurement and Transplantation Network members will monitor the

listing of patients and the appropriate use of the pools.

Added by Acts 2003, 78th Leg., ch. 926, Sec. 1, eff. June 20,

2003.

Renumbered from Health and Safety Code, Section 161.452 by Acts

2005, 79th Leg., Ch.

728, Sec. 23.001(45), eff. September 1, 2005.

SUBCHAPTER T. INFORMATION FOR PARENTS OF NEWBORN CHILDREN

Sec. 161.501. RESOURCE PAMPHLET AND RESOURCE GUIDE PROVIDED TO

PARENTS OF NEWBORN CHILDREN. (a) A hospital, birthing center,

physician, nurse midwife, or midwife who provides prenatal care

to a pregnant woman during gestation or at delivery of an infant

shall:

(1) provide the woman and the father of the infant, if possible,

or another adult caregiver for the infant, with a resource

pamphlet that includes:

(A) a list of the names, addresses, and phone numbers of

professional organizations that provide postpartum counseling and

assistance to parents relating to postpartum depression and other

emotional trauma associated with pregnancy and parenting;

(B) information regarding the prevention of shaken baby syndrome

including:

(i) techniques for coping with anger caused by a crying baby;

(ii) different methods for preventing a person from shaking a

newborn, infant, or other young child;

(iii) the dangerous effects of shaking a newborn, infant, or

other young child; and

(iv) the symptoms of shaken baby syndrome and who to contact, as

recommended by the American Academy of Pediatrics, if a parent

suspects or knows that a baby has been shaken in order to receive

prompt medical treatment;

law to be immunized and the appropriate schedule for the

administration of those immunizations;

(D) the appropriate schedule for follow-up procedures for

newborn screening; and

(E) information regarding sudden infant death syndrome,

including current recommendations for infant sleeping conditions

to lower the risk of sudden infant death syndrome;

(2) if the woman is a recipient of medical assistance under

Chapter 32, Human Resources Code, provide the woman and the

father of the infant, if possible, or another adult caregiver

with a resource guide that includes information in both English

and Spanish relating to the development, health, and safety of a

child from birth until age five, including information relating

to:

(A) selecting and interacting with a primary health care

practitioner and establishing a "medical home" for the child;

(B) dental care;

(D) child safety;

(E) the importance of reading to a child;

(F) expected developmental milestones;

(G) health care resources available in the state;

(H) selecting appropriate child care; and

(I) other resources available in the state;

(3) document in the woman's record that the woman received the

resource pamphlet described in Subdivision (1) and the resource

guide described in Subdivision (2), if applicable; and

(4) retain the documentation for at least five years in the

hospital's, birthing center's, physician's, nurse midwife's, or

midwife's records.

(b) A hospital, birthing center, physician, nurse midwife, or

midwife:

(1) may use the pamphlet provided on the department's website or

an alternative pamphlet that provides the information required by

Subsection (a)(1); and

(2) may use the resource guide provided on the department's

website or an alternative guide that provides the information

required by Subsection (a)(2).

existing publication created by another health and human services

agency as the resource guide required by Subsection (a)(2).

Redesignated from Health and Safety Code, Subchapter R, Chapter

161 and amended by Acts 2005, 79th Leg., Ch.

696, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

106, Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

171, Sec. 1, eff. September 1, 2009.

Sec. 161.502. DUTIES OF DEPARTMENT. (a) The department shall:

(1) establish guidelines for the provision of the information

required by Section 161.501;

(2) make available on the department's website:

(A) a printable version of the pamphlet required by Section

161.501(a)(1); and

(B) a printable version of the resource guide required by

Section 161.501(a)(2);

(3) update the list of resources and required immunizations in

the pamphlet required under Subdivision (2)(A) quarterly;

(4) make the pamphlet and resource guide required by Section

161.501 available for distribution to hospitals, physicians,

birthing centers, nurse midwives, and midwives; and

(5) coordinate funding for the development, publication, and

distribution of the informational pamphlet and resource guide

with other health and human services agencies, and solicit

funding for the department's duties under this subchapter through

means other than appropriations, such as gifts, grants, and sales

of sponsorship or advertising.

(b) The department may include additional information in the

pamphlet or resource guide as appropriate for parents of

newborns.

specific performance measures by which the commission may

evaluate the effectiveness of the resource guide under Section

161.501(a)(2) in:

(1) reducing costs to the state; and

(2) improving outcomes for children.

(d) Not later than December 1 of each even-numbered year, the

Health and Human Services Commission shall submit a report to the

legislature on the effectiveness of the resource guide under

Section 161.501(a)(2), including legislative recommendations

concerning the guide.

Redesignated from Health and Safety Code, Subchapter R, Chapter

161 and amended by Acts 2005, 79th Leg., Ch.

696, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

171, Sec. 1, eff. September 1, 2009.

Sec. 161.503. LIABILITY NOT CREATED. This subchapter does not

create civil or criminal liability.

Redesignated from Health and Safety Code, Subchapter R, Chapter

161 and amended by Acts 2005, 79th Leg., Ch.

696, Sec. 1, eff. September 1, 2005.

SUBCHAPTER U. INFORMATION REGARDING PROGRAMS FOR MILITARY

PERSONNEL AND THEIR FAMILIES

Sec. 161.551. DEFINITIONS. In this subchapter:

(1) "Commission" means the Health and Human Services Commission.

(2) "Department" means the Department of State Health Services.

(3) "Servicemember" means a resident of this state who is a

member or former member of the state military forces or a

component of the United States armed forces, including a reserve

component. In this section, "state military forces" has the

meaning assigned by Section 431.001, Government Code.

Added by Acts 2007, 80th Leg., R.S., Ch.

1381, Sec. 6, eff. September 1, 2007.

Sec. 161.552. DIRECTORY OF SERVICES. (a) The department and

commission shall compile, maintain, and disseminate through the

Texas Information and Referral Network and through other

appropriate media, a directory of services and other resources,

tools, and counseling programs available to servicemembers and

their immediate family.

(b) The directory must include:

(1) information regarding counseling services that:

(A) facilitate the reintegration of the servicemember into

civilian and family life;

(B) identify and treat stress disorders, trauma, and traumatic

brain injury;

substance abuse issues; and

(D) provide crisis intervention services;

(2) to the greatest degree possible in the judgment of the

department, all private and public community, state, and national

resources that protect and promote the health and well-being of

servicemembers and their immediate family and that are accessible

in the state directly or through electronic media, print media,

or the Internet; and

(3) other resources that support the health of servicemembers

and their families.

in a manner that allows a person to locate services in a specific

community in the state.

(d) The department and commission shall develop and maintain the

directory in collaboration with local, state, and national

private and government organizations, including:

(1) the United States Veterans Health Administration;

(2) the United States Department of Defense;

(3) the adjutant general's department;

(4) the Texas Veterans Commission; and

(5) other public and private national and community-based

organizations that provide support to servicemembers and their

families.

(e) The department shall provide the directory to the Texas

Information and Referral Network of the commission in the time

periods and in the manner and format specified by the Texas

Information and Referral Network.

(f) The department shall provide the directory on the

department's website or through links appearing on the

department's website.

Added by Acts 2007, 80th Leg., R.S., Ch.

1381, Sec. 6, eff. September 1, 2007.

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2009 Texas Code HEALTH AND SAFETY CODE TITLE 2. HEALTH CHAPTER 161. PUBLIC HEALTH PROVISIONS

2009 Texas Code
HEALTH AND SAFETY CODE
TITLE 2. HEALTH
CHAPTER 161. PUBLIC HEALTH PROVISIONS