Health and Safety Code
SUBTITLE H. PUBLIC HEALTH PROVISIONS
CHAPTER 161. PUBLIC HEALTH PROVISIONS
SUBCHAPTER A. IMMUNIZATIONS
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.
(c) A person who fails to comply with Section 161.004 is not
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.
(c) Physicians shall be responsible for reviewing the
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) immunization conflicts with the tenets of an organized
religion to which a parent, managing conservator, or guardian
belongs; or
(2) the immunization is medically contraindicated based on
an examination of the child by a physician licensed by any
state in the United States.
(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.
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.
(c) A facility covered by this section shall keep an individual
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. 161.006. 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 purposes 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 childhood communicable
disease prevention and control efforts, shall establish and
maintain a childhood immunization registry. The department by
rule shall develop guidelines to:
(1) protect the confidentiality of patients in accordance
with Section 5.08, Medical Practice Act (Article 4495b,
Vernon's Texas Civil Statutes);
(2) inform a parent, managing conservator, or guardian of
each patient about the registry;
(3) require the written consent of a parent, managing
conservator, or guardian of a patient before any information
relating to the patient is included in the registry; and
(4) permit a parent, managing conservator, or guardian to
withdraw consent for the patient to be included in the
registry.
(b) The childhood immunization registry must contain
information on the immunization history that is obtained by the
department under this section of each person who is younger than
18 years of age and for whom consent has been obtained in
accordance with guidelines adopted under Subsection (a). The
department shall remove from the registry information for any
person for whom consent has been withdrawn.
Text of subsec. (c) effective January 1, 1999
(c) An insurance company, a health maintenance organization, or
another organization that pays or reimburses a claim for an
immunization of a person younger than 18 years of age shall
provide an immunization history to the department. An insurance
company, health maintenance organization, or other organization
is not required to provide an immunization history to the
department under this subsection for a person for whom consent
has not been obtained in accordance with guidelines adopted under
Subsection (a) or for whom consent has been withdrawn.
Text of subsec. (d) effective January 1, 1999
(d) A health care provider who administers an immunization to a
person younger than 18 years of age shall provide an immunization
history to the department unless the immunization history is
submitted to an insurance company, a health maintenance
organization, or another organization that pays or reimburses a
claim for an immunization to a person younger than 18 years of
age. The report shall be in a format prescribed by the
department, which may include submission in writing, by
electronic means, or by voice. A health care provider is not
required to provide an immunization history to the department
under this subsection for a person for whom consent has not been
obtained in accordance with guidelines adopted under Subsection
(a) or for whom consent has been withdrawn.
(e) The department may use the registry to provide notices by
mail, telephone, personal contact, or other means to a parent,
managing conservator, or guardian regarding his or her child or
ward who is due or overdue for a particular type of immunization
according to the department's immunization schedule. 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.
(f) 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).
(g) A person, including a health care provider, who submits or
obtains in good faith an immunization history or data 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.
(h) Information obtained by the department for the immunization
registry is confidential and may be disclosed only with the
written consent of the child's parent, managing conservator, or
guardian.
(i) The board shall adopt rules to implement this section.
Added by Acts 1997, 75th Leg., ch. 900, Sec. 1, eff. Sept. 1,
1997.
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.
(c) The department, only with the consent of a child's parent,
managing conservator, or guardian, may:
(1) obtain the data constituting an immunization record for
the child from a public health district, a local health
department, or a physician to the child; or
(2) release the data constituting an immunization record for
the child to a public health district, a local health
department, a physician to the child, or a school or child care
facility in which the child is enrolled.
(d) A parent, managing conservator, or legal guardian may
obtain and on request to the department shall be provided with
all individually identifiable immunization registry information
concerning his or her child or ward.
Added by Acts 1997, 75th Leg., ch. 900, Sec. 1, eff. Sept. 1,
1997.
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 or 161.008; or
(2) negligently uses the information in the immunization
registry to solicit new patients or clients or for other
purposes that are not associated with immunization 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.
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 or a health ordinance of a political
subdivision.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
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 state penitentiary 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.
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.
(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.
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.
(c) A person shall provide medical, demographic, epidemiologic,
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.
(c) Interviews, reports, statements, memoranda, and other
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
(C) a hospital, clinic, or facility staffed, operated,
or used 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 the Texas Health Maintenance
Organization Act (Chapter 20A, Vernon's Texas Insurance Code),
the rules adopted under that Act, or other applicable state and
federal statutes and rules.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
SUBCHAPTER D. RECORDS OF AND IMMUNITIES FOR MEDICAL COMMITTEES
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 the Texas
Health Maintenance Organization Act (Chapter 20A, Vernon's Texas
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;
or
(5) an extended care facility.
(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.
(c) The term includes a committee, including a joint committee,
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.
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) The records and proceedings may be used by the committee
and the committee members only in the exercise of proper
committee functions.
(c) This section and Section 5.06, Medical Practices Act
(Article 4495b, Vernon's Texas Civil Statutes), 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, 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.
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
Sec. 161.041. Mandatory Reporting.
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.
Sec. 161.042. 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.
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 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; or
(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.
(c) An offense under this section is a Class C misdemeanor.
(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 V.T.C.A., Health and Safety Code Sec.
161.081 and amended by Acts 1997, 75th Leg., ch. 671, Sec. 1.01.
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).
(c) A proof of identification described by Section 161.082(e)
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).
(c) The comptroller by rule shall determine the design and size
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 intentionally
fails to display a sign as prescribed by this section. An
offense under this subsection is a Class C misdemeanor.
Added by Acts 1991, 72nd Leg., ch. 14, Sec. 50, eff. Sept. 1,
1991. Renumbered from V.T.C.A., Health and Safety Code Sec.
161.082 and amended by Acts 1997, 75th Leg., ch. 671, Sec. 1.01.
Sec. 161.085. Notification of Employees and Agents.
(a) Each permit holder shall notify each individual employed by
that permit holder 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 an intentional 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.
(c) Each form signed by an individual under this section shall
indicate the date of the signature and the current address and
social security number of the individual. The permit holder
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 permit holder required by this section to notify
employees commits an offense if the permit holder fails, on
demand of a peace officer or an agent of the comptroller, to
provide the notice 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 notice
required by Subsection (a). Proof must be shown to the
comptroller or an agent of the comptroller within 72 hours of the
offense.
Added by Acts 1997, 75th Leg., ch. 671, Sec. 1.01, eff. Jan. 1,
1998.
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; or
(2) that part of a facility or business that is a humidor or
other enclosure designed to store cigars in a
climate-controlled environment.
(c) The comptroller or a peace officer may, with or without a
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.
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.
(c) Subsections (a)(2) and (b) do not apply to a transaction
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 county sheriffs and municipal chiefs of police
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 county sheriffs and municipal chiefs
of police 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 sheriffs or chiefs of
police or their employees to enforce this subchapter.
(c) To facilitate the effective administration and enforcement
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 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.
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
(C) sources of citations;
(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 I. ILLEGAL REMUNERATION
Sec. 161.091. Prohibition on Illegal Remuneration.
(a) A person commits an offense if the person intentionally or
knowingly offers to pay or agrees to accept any remuneration
directly or indirectly, overtly or covertly, in cash or in kind,
to or from any person, firm, association of persons, partnership,
or corporation for securing or soliciting patients or patronage
for or from a person licensed, certified, or registered by a
state health care regulatory agency.
(b) It is a rebuttable presumption that a person has violated
this section if:
(1) the person refers or accepts a referral of a person to an
inpatient mental health facility or chemical dependency treatment
facility;
(2) before the patient is discharged or furloughed from the
inpatient facility, the person pays the referring person or
accepts payment from the inpatient facility for outpatient
services to be provided by the referring person after the patient
is discharged or furloughed from the inpatient facility; and
(3) the referring person does not provide the outpatient services
for which payment was made and does not return to the inpatient
facility the payment for the services not provided.
(c) This section shall not be construed to prohibit advertising
except that which is false, misleading, or deceptive or that
which advertises professional superiority or the performance of a
professional service in a superior manner and that is not readily
subject to verification.
(d) Except as provided by this section, an offense under this
section is a Class A misdemeanor. If it is shown on the trial of
a person under this section that the person has previously been
convicted of an offense under this section or that the person was
employed by a federal, state, or local government at the time the
offense occurred, the offense is a felony of the third degree.
In addition to any other penalties or remedies provided, a
violation of this section shall be grounds for disciplinary
action by a regulatory agency that has issued a license,
certification, or registration to the person.
(e) This section shall be construed to permit any payment,
business arrangements, or payments practice permitted by 42
U.S.C. Section 1320a-7b(b) or any regulations promulgated
pursuant thereto.
(f) This section shall not apply to licensed insurers,
governmental entities, including intergovernmental risk pools
established under Chapter 172, Local Government Code, and
institutions as defined in the Texas State College and University
Employees Uniform Insurance Benefits Act (Article 3.50-3,
Vernon's Texas Insurance Code), group hospital service
corporations, or health maintenance organizations which
reimburse, provide, offer to provide, or administer hospital,
medical, dental, or other health-related benefits under a health
benefits plan for which it is the payor.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, Sec. 5.21, eff.
Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 573, Sec.
5.01, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 706, Sec. 1,
eff. Aug. 30, 1993.
Sec. 161.0915. Exemption.
(a) This subchapter does not apply to a health care information
service that:
(1) provides its services to a consumer only by telephone
communication on request initiated by the consumer and without
charge to the consumer;
(2) provides information about health care providers to
enable consumer selection of health care provider services
without any direct influence by a health care provider on
actual consumer selection of those services;
(3) in response to each consumer inquiry, on a
nondiscriminatory basis, provides information identifying
health care providers who substantially meet the consumer's
detailed criteria based on consumer responses to standard
questions designed to elicit a consumer's criteria for a health
care provider, including criteria concerning location of the
practice, practice specialties, costs and payment policies,
acceptance of insurance coverage, general background and
practice experience, and various personal characteristics;
(4) does not attempt through its standard questions for
solicitation of consumer criteria or through any other means or
methods to steer or lead a consumer to select or consider
selection of a particular health care provider for health care
provider services;
(5) identifies to a consumer:
(A) all health care providers who substantially meet the
consumer's stated criteria and who are located within the
zip code area in which the consumer elects to obtain
services from a health care provider; or
(B) all health care providers substantially meeting the
consumer's stated criteria who are located in zip code areas
in the closest proximity to the elected zip code area if no
health care provider substantially meeting the consumer's
criteria is located within that zip code area;
(6) discloses to each consumer the relationship between the
health care information service and health care providers
participating in its services;
(7) does not provide or represent itself as providing
diagnostic or counseling services or assessment of illness or
injury and does not make any promises of cure or guarantees of
treatment;
(8) does not provide or arrange for transportation of a
consumer to or from the location of a health care provider;
(9) does not limit the scope of or direct its advertising or
other marketing of its services to a particular health care
provider specialty, to a particular segment of the population,
or to persons suffering from a particular illness, condition,
or infirmity;
(10) charges to and collects fees from a health care
provider participating in its services that are set in advance,
are consistent with the fair market value for those information
services, and are not based on the potential value of a patient
or patients to a health care provider or on the value of or a
percentage of the value of a professional service provided by
the health care provider;
(11) does not limit participation by a health care provider
in its services to a particular health care specialty or to a
particular service provided by a health care provider;
(12) does not limit participation by a health care provider
in its services for a reason other than:
(A) failure to have a current, valid license without
limitation to practice in this state;
(B) failure to maintain professional liability insurance
while participating in the service;
(C) significant dissatisfaction of consumers of the
health care information service that is documented and can
be proved;
(D) a decision by a peer review committee that the
health care provider has failed to meet prescribed standards
or has not acted in a professional or ethical manner; or
(E) termination of the contract between the health care
provider and the health care information service by either
party under the terms of the contract;
(13) maintains a customer service department to handle
complaints and answer questions for consumers;
(14) maintains a customer follow-up system to monitor
consumer satisfaction; and
(15) does not use, maintain, distribute, or provide for any
purpose any information that will identify a particular
consumer, such as a name, address, or telephone number,
obtained from a consumer seeking its services other than for
the purposes of:
(A) providing the information to the health care
provider with whom an appointment is made;
(B) performing administrative functions necessary to
operate the health care information service;
(C) providing directly to a consumer, at the request of
that consumer on that consumer's initial contact with the
health care information service, information relating to
health-related support groups or providers of
health-care-related services or equipment within the area or
areas of interest requested by the consumer; or
(D) conducting analytical research on data obtained
through provision of services and preparing statistical
reports that generally analyze that data but do not in any
manner identify one or more specific consumers.
(b) In this section:
(1) "Health care information service" means a person who
provides information to a consumer regarding health care
providers that can enable the consumer to select one or more
health care providers to furnish health care services.
(2) "Health care provider" means a person licensed,
certified, or registered by a state health care regulatory
agency other than a:
(A) mental health facility as defined by Section
571.003; or
(B) treatment facility as defined by Section 464.001.
Added by Acts 1993, 73rd Leg., ch. 573, Sec. 5.01, eff. Sept. 1,
1993; Acts 1993, 73rd Leg., ch. 706, Sec. 1, eff. Aug. 30, 1993.
Sec. 161.092. Notification of Remuneration.
(a) A person commits an offense if:
(1) the person, in a manner otherwise permitted under
Section 161.091, accepts remuneration to secure or solicit
patients or patronage for a person licensed, certified, or
registered by a state health care regulatory agency; and
(2) does not, at the time of initial contact and at the time
of referral, disclose to the patient:
(A) the person's affiliation, if any, with the person
for whom the patient is secured or solicited; and
(B) that the person will receive remuneration, directly
or indirectly, for securing or soliciting the patient.
(b) Except as otherwise provided by this section, an offense
under this section is a Class A misdemeanor. If it is shown on
the trial of a person under this section that the person has
previously been convicted of an offense under this section or
that the person was employed by a federal, state, or local
government at the time the offense occurred, the offense is a
felony of the third degree.
(c) In addition to other penalties or remedies provided by this
subchapter, a violation of this section is grounds for
disciplinary action by a regulatory agency that has issued a
license, certification, or registration to the person.
Added by Acts 1993, 73rd Leg., ch. 573, Sec. 5.01, eff. Sept. 1,
1993; Acts 1993, 73rd Leg., ch. 706, Sec. 1, eff. Aug. 30, 1993.
Sec. 161.093. Injunction.
(a) The attorney general or the appropriate district or county
attorney, in the name of the state, may institute and conduct an
action in a district court of Travis County or of a county in
which any part of the violation occurs for an injunction or other
process against a person who is violating this subchapter.
(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 1993, 73rd Leg., ch. 573, Sec. 5.01, eff. Sept. 1,
1993; Acts 1993, 73rd Leg., ch. 706, Sec. 1, eff. Aug. 30, 1993.
Sec. 161.094. Civil Penalties.
(a) A person who violates this subchapter is subject to a civil
penalty of not more than $10,000 for each day of violation and
each act of violation. In determining the amount of the civil
penalty, the court shall consider:
(1) the person'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 person; and
(5) the amount necessary to deter future violations.
(b) The attorney general or the appropriate district or county
attorney, in the name of the state, may institute and conduct an
action authorized by this section in a district court of Travis
County or of a county in which any part of the violation occurs.
(c) 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
161.093; or
(2) file a suit to assess and recover civil penalties
independently of a suit for injunctive relief.
(d) The party bringing the suit may recover reasonable expenses
incurred in obtaining injunctive relief, civil penalties, or
both, including investigation costs, court costs, reasonable
attorney fees, witness fees, and deposition expenses.
(e) A penalty collected under this section by the attorney
general shall be deposited 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.
(f) The civil penalty and injunction authorized by this
subchapter are in addition to any other civil, administrative, or
criminal action provided by law.
Added by Acts 1993, 73rd Leg., ch. 573, Sec. 5.01, eff. Sept. 1,
1993; Acts 1993, 73rd Leg., ch. 706, Sec. 1, eff. Aug. 30, 1993.
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.
(c) The board shall adopt rules to implement this section.
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.
(c) This section does not apply to a sign located on or in a
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.
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. 161.123. 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.
(c) The liability for the payment of fees under this section
may 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.
(c) The amount of the penalty shall be based on:
(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.
(c) The requirement prescribed by this section is in addition
to 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.
(c) Each agency shall review and modify the memorandum as
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.
(c) 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.
(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.
(c) A person suing under this section has the burden of proof,
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;
(C) commits or threatens to commit, without
justification, the 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.
(c) In this section, "mental health services provider" has the
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.); or
(5) Title XVIII, the federal Social Security Act, as amended
(42 U.S.C. Section 1395 et seq.).
(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)(1), (2), (3), or (4) or an appeal
relating to denial of those benefits or assistance.
(c) A person, including a state or federal agency, that
requests 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.
Added by Acts 1995, 74th Leg., ch. 707, Sec. 1, eff. Aug. 28,
1995.
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 and Section
5.08(k), Medical Practice Act (Article 4495b, Vernon's Texas
Civil Statutes), 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.
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; or
(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.
(c) It is an exception to the application of this section that
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.
(c) If the defendant resides in a rural area of this state or
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 certified mail,
return receipt requested. 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.
Sec. 161.255. Expungement of Conviction.
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.
Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Jan. 1,
1998.
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;
or
(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 N. DISCLOSURE OF INGREDIENTS IN CIGARETTES AND
TOBACCO
PRODUCTS
Sec. 161.251. 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.
Sec. 161.252. 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
(C) a reconstituted tobacco sheet made wholly from
tobacco; and
(2) a nicotine yield rating for the cigarette or tobacco
product established under Section 161.253.
(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.
(c) The department by rule shall establish the time for filing
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.
Sec. 161.253. Nicotine Yield Ratings.
(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.
Sec. 161.254. 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.
(c) Information included in a report filed under this
subchapter 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.
Sec. 161.255. 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 161.252, 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.
(c) A suit for injunctive relief must be brought in Travis
County.
Added by Acts 1997, 75th Leg., ch. 1216, Sec. 1, eff. Sept. 1,
1997.
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.
(c) A contract awarded under Subsection (b) may be awarded only
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;
(2) any partner, employee, employer, relative, contractor,
consultant, or related entity of a person or entity described by
Subdivision (1); 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.
Added by Acts 1997, 75th Leg., ch. 671, Sec. 3.01, eff. Sept. 1,
1997.
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;
(C) citizenship training; and
(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