HBA-DMD, TYH H.B. 1059 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1059 By: Keel Public Safety 7/30/1999 Enrolled BACKGROUND AND PURPOSE Prior to the 76th Legislature, amusement rides could not legally operate in Texas until insurance coverage was obtained and filed with the Texas Department of Insurance with an approved safety inspection certificate. An annual inspection was required under the Amusement Ride Safety Inspection and Insurance Act (Article 21.60, Insurance Code). The statute placed responsibility on the operator to have insurance before the rides could have been used by the public and on the insurance companies to ascertain that the amusement ride was in good operating condition before they issued the insurance and inspection certificate. However, if safety concerns were present or if there was a failure to comply with statutory insurance or inspection requirements, the only option available to law enforcement officials was to institute action in a court in order to shut down the ride. H.B. 1059 gives state and local law enforcement officials authority to conduct spot inspections and immediately shut down an amusement ride if safety concerns are present or for failure to comply with statutory insurance or inspection requirements. It increases penalties and enforcement measures for noncompliance with safety and insurance regulations and increases mandated insurance coverage to be consistent for all types of rides. This bill also requires the commissioner of insurance to adopt rules requiring operators of mobile amusement rides to perform inspections of mobile amusement rides, including rules requiring daily inspections of safety restraints. In addition, this bill creates the offense of operating or assembling an amusement ride while intoxicated. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the commissioner of insurance in SECTION 3 (Section 4, Article 21.60, Insurance Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 2(3), Article 21.60, Insurance Code, and adds Subdivisions (5) and (6), to modify the definition of "Class A amusement ride" and to add the definitions of "commissioner" and "mobile amusement ride." SECTION 2. Amends Section 3(a), Article 21.60, Insurance Code, to require the commissioner of insurance (commissioner), rather than the State Board of Insurance (board), to administer and enforce this article. Raises the maximum annual fee for each amusement ride covered by this article from $20 to $40. Makes a conforming change. SECTION 3. Amends Sections 4(a) and (b), Article 21.60, Insurance Code, and adds Sections 4(d), (e), (f), (g), and (h), as follows: (a) Prohibits a person from operating an amusement ride unless the person files a photocopy of the inspection certificate and the insurance policy, rather than a certificate stating that the insurance required is in effect, to each sponsor, lessor, landowner, or other person responsible for an amusement ride being offered for use by the public. This requirement is listed among other enumerated requirements. Makes conforming changes. (b) Provides that the inspection must include a method to test the stress- and wear-related damage of critical parts of a ride that the manufacturer of the amusement ride, rather than the board, determines are reasonably subject to failure. Makes a nonsubstantive changes. (d) Requires a person who operates an amusement ride in this state to maintain accurate records of any governmental action taken in any state relating to that particular amusement ride, including an inspection resulting in the repair or replacement of equipment used in the operation of the amusement ride. Requires the operator to file with the commissioner on a quarterly basis a report on a form designed by the commissioner describing each governmental action taken in the quarter covered by the report for which the operator is required by this subsection to maintain records. Provides that a report is not required under this section in any quarter in which no reportable governmental action was taken in any state in which the person operated the amusement ride. (e) Requires a person who operates an amusement ride to maintain for not less than two years at any location where the ride is operated, for inspection by a municipal, county, or state law enforcement official, a photocopy of any quarterly report required under Subsection (c) or (d) of this section to be filed with the commissioner. (f) Requires the commissioner to adopt rules requiring operators of mobile amusement rides to perform inspections of mobile amusement rides, including rules requiring daily inspections of safety restraints. Provides that rules adopted under this subsection may apply to specific rides of specific manufacturers. Requires the commissioner to prescribe forms for inspections required under this subsection and to require records of the inspections to be made available for inspection by any municipality, county, or state law enforcement officials at any location at which an amusement ride is operated. (g) Requires the commissioner to adopt rules requiring that a sign be posted to inform the public how to report an amusement ride that appears to be unsafe or to report an amusement ride operator who appears to be violating the law. Provides that the rules must require the sign to be posted at the principal entrance to the site at which an amusement ride is located or at any location on that site at which tickets for an amusement ride are available. (h) Requires an amusement ride covered by this article that is sold, maintained, or operated in this state to comply with standards established by the American Society of Testing and Materials (ASTM) as of May 1, 1999. Provides that those standards are minimum standards. Provides that to the extent that the standards of the American Society of Testing and Materials conflict with the requirements of this article, the more stringent requirement or standard applies. SECTION 4. Amends Section 8, Article 21.60, Insurance Code, to authorize the district attorney of each county in which an amusement ride is operated or, on request of the commissioner, the attorney general or one of his agents to seek an injunction against any person operating an amusement ride in violation of a rule adopted by the commissioner under Section 4 of this article, in addition to a violation of this article. SECTION 5. Amends the heading of Section 9, Article 21.60, Insurance Code, as follows: Sec. 9. New title: PENALTIES. Deletes "; Local Enforcement" from existing title. SECTION 6. Amends Section 9, Article 21.60, Insurance Code, by amending Subsections (a) and (c), and adding Subsection (f), as follows: (a) Includes a person's failure to comply with any requirement under Section 4, 5 (Filing Affidavit), 10(e), 10(f), or 10(g) of this article or under any rule adopted by the commissioner under Section 4 of this article as a commission of an offense. Makes a conforming and a nonsubstantive change. (c) Provides that an offense under this section is a Class B, rather than a Class C, misdemeanor. (f) Requires the prosecuting attorney in a case in which a person is convicted of an offense to report the offense to the Texas Department of Insurance (department) no later than 90 days after the conviction. SECTION 7. Amends Article 21.60, Insurance Code, by adding Section 10, as follows: Sec. 10. ENFORCEMENT. (a) Authorizes a municipal, county, or state law enforcement official (official) to determine compliance with Section 4 (Amusement Ride Operation Requirements) or 5 (Filing Affidavit) of this article in conjunction with the commissioner and to institute an action in a court of competent jurisdiction to enforce this article. (b) Authorizes an official to enter and inspect without notice any amusement ride at any time to ensure public safety. (c) Requires the operator of an amusement ride to immediately provide the inspection certificate and the insurance policy required by Section 4 of this article to an official requesting the information. Authorizes a photocopy of the inspection certificate or insurance policy to be provided instead of the certificate or policy. (d) Authorizes an official, except as provided by Subsection (i), to immediately prohibit operation of an amusement ride under certain conditions. (e) Prohibits a person, if the operation of an amusement ride is prohibited under Subsection (d), from operating the amusement ride unless certain conditions are met. (f) Prohibits a person, if on the date an amusement ride's operation is prohibited under Subsection (d) the amusement ride is not in compliance with Section 4, from operating the amusement ride until after a person subsequently complies with Section 4. (g) Prohibits a person, if on the date an amusement ride's operation is prohibited under Subsection (d) the amusement ride is in compliance with Section 4, from operating the amusement ride until certain conditions are met. (h) Authorizes the owner or operator of the amusement ride to file suit for relief from an action taken under Subsection (d) or (k) of this section in a district court in the county in which the amusement ride was located when the prohibition against operation occurred. (i) Provides that Subsection (d) does not apply to an amusement ride with a fixed location and operated at an amusement park that was attended by more than 200,000 customers in the year preceding the inspection under Subsection (b). (j) Provides that performance or nonperformance by a municipal, county, or state law enforcement official of any action authorized by this article is a discretionary act. (k) Prohibits a mobile amusement ride on which a death occurs from being operated, except as provided by Subsection (l) or (m) of this section. (l) Authorizes a person, if a mobile amusement ride was in compliance with Section 4(a) of this article when its operation was initially prohibited under Subsection (k) of this section, to resume operating the mobile amusement ride only after an insurance company insuring the amusement ride on the date its operation was prohibited, performs certain inspections and provides the commissioner with the specified information. (m) Authorizes a person, if a mobile amusement ride was not in compliance with Section 4(a) of this article when its operation was initially prohibited under Subsection (k) of this section, to resume operating the mobile amusement ride only after the person subsequently complies with Section 4(a) of this article. SECTION 8. Amends Section 49.01, Penal Code, by adding Subdivisions (5) and (6), to define "amusement ride" and "mobile amusement ride." SECTION 9. Amends Chapter 49, Penal Code, by adding Section 49.065, as follows: Sec. 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED. (a) Provides that a person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride. (b) Provides that except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours. (c) Provides that if it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days. SECTION 10. Amends Section 49.07(a), Penal Code, to include as an offense, a person who operated an amusement ride or while operating a motor vehicle in a public place was intoxicated and causes by accident or mistake serious bodily injury to another or as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another. SECTION 11. Amends Section 49.08(a), Penal Code, to include an intoxicated person who operates an aircraft, water craft, or an amusement ride, or assembles a mobile amusement ride and causes the death of another by accident or mistake as an offense. SECTION 12. Amends Sections 49.09(a), (b), (d), and (e), Penal Code, as follows: (a) Provides that if it is shown on the trial of an offense under Section 49.065, included among other existing sections, that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated, the offense is a Class A misdemeanor, with a minimum term of confinement of 30 days. (b) Provides that if it is shown on the trial of an offense under Section 49.065, included among other existing sections, that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated, the offense is a felony of the third degree. (d) Provides that for the purposes of this section, a conviction for an offense under Section 49.065, included among other existing sections, that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated. (e) Prohibits a conviction from being used for purposes of enhancement under this section if the person has not been convicted of an offense under Section 49.065, included among other existing sections, or any offense related to operating a motor vehicle while intoxicated committed within 10 years before the date on which the offense for which the person is being tried was committed. SECTION 13. Amends Section 49.09(c), Penal Code, by adding Subdivision (4), to define "offense of operating or assembling an amusement ride while intoxicated." SECTION 14. Amends Section 49.10, Penal Code, to provide that the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense to prosecution under Section 49.065, among other existing enumerated sections. SECTION 15. Repealer: Section 9(e), Article 21.60, Insurance Code. This section pertains to the authority of a municipal or law enforcement official to determine compliance and institute an action in court to enforce this article. SECTION 16. (a) Effective date: January 1, 2000. (b) Provides that the change in law made by this Act to Section 9, Article 21.60, Insurance Code, applies only to an offense committed on or after the effective date of this Act. (c) Provides that an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. Provides that for purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before that date. SECTION 17.Emergency clause.