By Zaffirini, et al. S.B. No. 373
Substitute the following for S.B. No. 373:
By Tallas C.S.S.B. No. 373
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the sale, distribution or use of
1-3 cigarettes and tobacco products; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. This Act may be cited as the Children's Tobacco
1-6 Prevention and Enforcement Act.
1-7 SECTION 2. Subchapter H, Chapter 161, Health and Safety
1-8 Code, is amended by adding Section 161.083 to read as follows:
1-9 Sec. 161.083. PURCHASE OF CIGARETTES OR TOBACCO PRODUCTS BY
1-10 PERSONS YOUNGER THAN 18 YEARS OF AGE PROHIBITED. (a) A person
1-11 younger than 18 years of age commits an offense if the person
1-12 purchases a cigarette or other tobacco product.
1-13 (b) An offense under this section is subject to a fine not
1-14 to exceed $100 and the provisions of Article 45.521, Code of
1-15 Criminal Procedure.
1-16 SECTION 3. Subchapter H, Chapter 161, Health and Safety
1-17 Code, is amended by adding Section 161.084 to read as follows:
1-18 Sec. 161.084. ADMINISTRATION AND IMPLEMENTATION. (a) The
1-19 state treasurer shall be responsible for the administration and
1-20 implementation of this subchapter and for compliance with the
1-21 related provisions of the federal Alcohol, Drug Abuse, and Mental
1-22 Health Administration Reorganization Act, Pub. L. 102-321, except
1-23 as otherwise provided by state law.
1-24 (b) Upon disposition of a case relating to a violation of
2-1 Section 161.081, 161.082 or 161.083 of this subchapter, the clerk
2-2 of the court shall promptly notify the state treasurer of the
2-3 disposition of the case, regardless of whether the case resulted in
2-4 a conviction.
2-5 (c) The state treasurer with the cooperation of local law
2-6 enforcement agencies shall annually conduct random, unannounced
2-7 inspections at locations where tobacco products are sold to ensure
2-8 compliance with this subchapter. Persons under 18 years of age may
2-9 be enlisted by local law enforcement agencies to ensure compliance
2-10 with this subchapter, provided that such persons may be enlisted
2-11 only if the inspection is conducted under the direct supervision of
2-12 local law enforcement agency personnel. Each cooperating local law
2-13 enforcement agency shall file a report with the state treasurer
2-14 which summarizes findings regarding compliance with this section
2-15 and the number of violations occurring within their jurisdiction.
2-16 The state treasurer shall prepare the report required by section
2-17 one thousand nine hundred and twenty-six of subpart I part B of
2-18 title XIX of the federal Public Health Service Act (42 U.S.C.
2-19 300X-26) on an annual basis for submission to the Secretary of the
2-20 United States Department of Health and Human Services.
2-21 (d) Should the U.S. Department of Health and Human Services
2-22 issue rules under the federal Alcohol, Drug Abuse, and Mental
2-23 Health Administration Reorganization Act, Pub. L. 102-321,
2-24 requiring state action not provided for in Subsections (a), (b) and
2-25 (c) of this section, the state treasurer is authorized to adopt
2-26 rules, only to the extent necessary to avoid loss of federal
2-27 funding, to provide for administrative penalties and suspension and
3-1 revocation of permits issued under Chapter 154 and 155, Tax Code,
3-2 for a violation of Sections 161.081 or 161.082 by a permit holder.
3-3 (e) In promulgation of rules under Subsection (d), the state
3-4 treasurer shall provide for the following:
3-5 (1) any administrative penalties for violations of
3-6 Sections 161.081 or 161.082 shall not exceed the following
3-7 schedule:
3-8 (i) the penalty for the first violation may be
3-9 in an amount not to exceed $500;
3-10 (ii) the penalty for a second or subsequent
3-11 violation may be in an amount not to exceed $1000.
3-12 (iii) the penalty for a third or subsequent
3-13 violation of Section 161.081 may include the suspension or
3-14 revocation of a retailer's permit issued under Chapter 154 or 155,
3-15 Tax Code; provided however, that no suspension may exceed a period
3-16 of 10 days. Further, a permit may not be revoked until such permit
3-17 has been suspended at least once in the prior 12 month period. The
3-18 amount of a penalty shall be based on:
3-19 (A) the seriousness of the violation;
3-20 (B) the history of previous violations;
3-21 (C) the person's demonstrated good faith; and
3-22 (D) any other matter that justice may require.
3-23 (2) A determination that a violation has occurred
3-24 shall be made following written notice and hearing pursuant to the
3-25 Administrative Procedure and Texas Register Act (Article 6252-13a,
3-26 Vernon's Texas Civil Statutes).
3-27 (3) It shall be a defense to the imposition of
4-1 administrative penalties or suspension or revocation of a permit
4-2 for a violation of Sections 161.081 that the person to whom the
4-3 cigarette or tobacco product was sold or given presented to the
4-4 person apparently valid proof of identification that contained a
4-5 physical description and photograph consistent with the person's
4-6 appearance, purported to establish that the person is 18 years of
4-7 age or older, and was purportedly issued by a governmental agency.
4-8 The proof of identification may include a driver's license issued
4-9 by this state or another state, a passport or an identification
4-10 card issued by a state or the federal government.
4-11 (4) With respect to the revocation or suspension of a
4-12 permit, based on a violation of Section 161.081 by an employee, it
4-13 is a defense that the employer acted in good faith and did the
4-14 following:
4-15 (i) conspicuously posted and reasonably
4-16 maintained appropriate signs in areas frequented by employees, such
4-17 as near time cards or in lunchrooms, reminding the employees of the
4-18 provisions of this subchapter and the penalties provided hereunder;
4-19 (ii) conspicuously posted and reasonable
4-20 maintained signs on or near any cash register or comparable area
4-21 reminding employees to ask for proof of identification before
4-22 selling cigarettes or tobacco products if there is any doubt as to
4-23 the customer being younger than 18 years of age:
4-24 (iii) provided the employee a copy of this
4-25 subchapter or a reasonable summary of this subchapter and required
4-26 the employee to sign a statement that the copy or the summary was
4-27 received and understood and that the employee will uphold the law;
5-1 (iv) provided the employee with a written list
5-2 of the types of proof of identification that are deemed valid by
5-3 the state to establish legal age under this subchapter; and
5-4 (v) if the employee has violated this subchapter
5-5 more than once:
5-6 (A) promptly terminated the employee's
5-7 employment; or
5-8 (B) promptly reassigned the employee to a
5-9 position in which the employee is prohibited from selling and does
5-10 not sell cigarettes or tobacco products for a period of one year
5-11 from the date of the employee's last violation.
5-12 SECTION 4. Subchapter H, Chapter 161, Health and Safety
5-13 Code, is amended by adding Section 161.085 to read as follows:
5-14 Sec. 161.085. ENFORCEMENT. The provisions of Subchapter H,
5-15 Chapter 161, Health and Safety Code, and Chapters 154 and 155, Tax
5-16 Code, shall govern exclusively the sale and distribution of
5-17 cigarettes and other tobacco products in this state; provided,
5-18 however, that this section shall not affect an ordinance,
5-19 regulation, order, resolution or policy adopted by the governing
5-20 board of a political subdivision relating to the regulation of the
5-21 sale or distribution of cigarettes or other tobacco products in
5-22 effect on October 1, 1993.
5-23 SECTION 5. The change in law made by this Act applies only
5-24 to an offense committed on or after the effective date of this Act.
5-25 For the purposes of this subsection, an offense is committed before
5-26 the effective date of this Act if any element of the offense occurs
5-27 before that date. An offense committed before the effective date
6-1 of this Act is governed by the law in effect when the offense was
6-2 committed, and the former law is continued in effect for this
6-3 purpose.
6-4 SECTION 6. The importance of this legislation and the
6-5 crowded condition of the calendars in both houses create an
6-6 emergency and an imperative public necessity that the
6-7 constitutional rule requiring bills to be read on three several
6-8 days in each house be suspended, and this rule is hereby suspended.