By: Zaffirini S.B. No. 373
73R3713 CBH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the sale or distribution of tobacco
1-3 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 to read as follows:
1-9 SUBCHAPTER H. SALE OF CIGARETTES OR TOBACCO
1-10 PRODUCTS <TO MINORS>
1-11 Sec. 161.081. DEFINITIONS. In this subchapter:
1-12 (1) "Distributor" has the meaning assigned by Section
1-13 154.001 or 155.001, Tax Code, as applicable.
1-14 (2) "Permit holder" has the meaning assigned by
1-15 Section 154.001 or 155.001, Tax Code, as applicable.
1-16 (3) "Retailer" has the meaning assigned by Section
1-17 154.001 or 155.001, Tax Code, as applicable.
1-18 (4) "Retail sale" means a transfer of possession from
1-19 a retailer to a consumer in connection with a purchase, sale, or
1-20 exchange for value of cigarettes or tobacco products.
1-21 (5) "Wholesaler" has the meaning assigned by Section
1-22 154.001 or 155.001, Tax Code, as applicable.
1-23 Sec. 161.082. ADMINISTRATION AND ENFORCEMENT. (a) The
1-24 department, the state treasurer, and the Texas Commission on
2-1 Alcohol and Drug Abuse shall jointly administer this subchapter.
2-2 (b) The state treasurer is primarily responsible for the
2-3 enforcement of this subchapter and for the administration and
2-4 enforcement of the permitting systems prescribed by Chapters 154
2-5 and 155, Tax Code. In administering and enforcing this subchapter,
2-6 the state treasurer has the powers prescribed by Chapters 154 and
2-7 155, Tax Code, relating to the administration and enforcement of
2-8 the cigarette and tobacco products taxes.
2-9 (c) The state treasurer shall:
2-10 (1) conduct random unannounced inspections of
2-11 locations where cigarettes or tobacco products are sold or
2-12 delivered to ensure compliance with this subchapter and related
2-13 laws;
2-14 (2) establish a system to allow persons to report the
2-15 sale or delivery of cigarettes or tobacco products to a person
2-16 younger than 18 years of age, including a sale or delivery by a
2-17 permit holder; and
2-18 (3) maintain statistics relating to violations of this
2-19 subchapter and related laws, the activities carried out by this
2-20 state to enforce this subchapter and related laws, and the extent
2-21 to which the state has succeeded in reducing the availability of
2-22 cigarettes and tobacco products to persons younger than 18 years of
2-23 age.
2-24 (d) The department and the Texas Commission on Alcohol and
2-25 Drug Abuse shall provide support to the state treasurer by:
2-26 (1) providing training to treasury officers and local
2-27 law enforcement and health officers authorized to enforce this
3-1 subchapter and related laws; and
3-2 (2) developing strategies to increase compliance with
3-3 this subchapter and related laws.
3-4 (e) The Texas Commission on Alcohol and Drug Abuse shall
3-5 submit to the federal government any reports necessary to comply
3-6 with federal law.
3-7 Sec. 161.0825. RULES. (a) The board, the state treasurer,
3-8 and the Texas Commission on Alcohol and Drug Abuse shall jointly
3-9 adopt rules that specify the responsibilities of each agency in
3-10 relation to:
3-11 (1) the enforcement of the laws regulating the sale of
3-12 cigarettes and tobacco products; and
3-13 (2) reporting requirements prescribed by federal law.
3-14 (b) The Texas Commission on Alcohol and Drug Abuse shall
3-15 publish the joint rules. Before accepting a proposed rule for
3-16 publication, the secretary of state shall certify that the rule was
3-17 adopted by each agency.
3-18 (c) The agencies shall review the rule as necessary, but not
3-19 later than the last month of each state fiscal year. If the review
3-20 of a rule shows that a rule should be modified, the rule shall be
3-21 changed not later than the last month of the state fiscal year.
3-22 Sec. 161.083. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
3-23 PERSONS YOUNGER THAN 18 YEARS OF AGE <MINORS> PROHIBITED. (a) A
3-24 person commits an offense if the person, as a commercial enterprise
3-25 and with criminal negligence:
3-26 (1) sells, gives, or causes to be sold or given a
3-27 cigarette or other tobacco product to someone who <the person
4-1 knows> is younger than 18 years of age; or
4-2 (2) sells, gives, or causes to be sold or given a
4-3 cigarette or other tobacco product to another person who<, knowing
4-4 that the person receiving the cigarette or other tobacco product>
4-5 intends to deliver it to someone who is younger than 18 years of
4-6 age.
4-7 (b) An offense under this section is a <Class C> misdemeanor
4-8 punishable by a fine of not less than $100 or more than $1,000. If
4-9 it is shown on the trial of the person that the person previously
4-10 has been convicted of an offense under this section, the offense is
4-11 punishable by a fine of not less than $500 or more than $2,000.
4-12 (c) It is a defense to prosecution under Subsection (a)(1)
4-13 <this section> that the person to whom the cigarette or other
4-14 tobacco product was sold or given presented to the defendant <an>
4-15 apparently valid proof of <Texas driver's license or an>
4-16 identification that contained <card, issued by the Department of
4-17 Public Safety and containing> a physical description and photograph
4-18 consistent with the person's appearance, <that> purported to
4-19 establish that the person is <was> 18 years of age or older, and
4-20 was issued by a governmental agency. The proof of identification
4-21 may include a driver's license issued by this state or another
4-22 state, a passport, or an identification card issued by a state or
4-23 the federal government.
4-24 Sec. 161.084. LOCATION OF VENDING MACHINES CONTAINING
4-25 CIGARETTES OR TOBACCO PRODUCTS. (a) Except as provided by
4-26 Subsection (b), a person may not install or maintain a vending
4-27 machine containing cigarettes or tobacco products in a place that
5-1 is generally accessible to the public or to persons younger than 18
5-2 years of age, regardless of whether it is accessible to the public.
5-3 (b) Subsection (a) does not apply to:
5-4 (1) a bar, lounge, or other similar place that
5-5 primarily sells or serves alcoholic beverages for on-premises
5-6 consumption; or
5-7 (2) a facility or business that is not open to persons
5-8 younger than 18 years of age.
5-9 (c) The state treasurer or a peace officer may, with or
5-10 without a warrant, seize, seal, or disable a vending machine that
5-11 is found in a location prohibited under Subsection (a). Property
5-12 seized under this subsection is subject to forfeiture to the state
5-13 in accordance with Subchapter H, Chapter 154, Tax Code, and
5-14 Subchapter E, Chapter 155, Tax Code.
5-15 (d) A person commits an offense if the person violates
5-16 Subsection (a). An offense under this subsection is punishable by
5-17 a fine of not less than $100 or more than $1,000. If it is shown
5-18 on the trial of the person that the person previously has been
5-19 convicted of an offense under this subsection, the offense is
5-20 punishable by a fine of not less than $500 or more than $2,000.
5-21 Sec. 161.085. DISTRIBUTION OF CIGARETTES OR TOBACCO
5-22 PRODUCTS. (a) A person may not distribute a free sample of a
5-23 cigarette or tobacco product in a location other than a store that
5-24 sells cigarettes or tobacco products to the public as its primary
5-25 business.
5-26 (b) A person may not distribute at a public event or place
5-27 and for commercial or promotional purposes a coupon or other item
6-1 that the recipient may use to receive a free or discounted
6-2 cigarette or tobacco product or sample cigarette or tobacco
6-3 product.
6-4 (c) Except as provided by Subsection (d), a permit holder
6-5 may not accept or redeem, offer to accept or redeem, or hire a
6-6 person to accept or redeem a coupon or other item that the
6-7 recipient may use to receive a free or discounted cigarette or
6-8 tobacco product or sample cigarette or tobacco product.
6-9 (d) Subsection (c) does not apply to a transaction between
6-10 permit holders unless the transaction is a retail sale.
6-11 (e) A person commits an offense if the person violates this
6-12 section. An offense under this subsection is punishable by a fine
6-13 of not less than $100 or more than $1,000. If it is shown on the
6-14 trial of the person that the person previously has been convicted
6-15 of an offense under this subsection, the offense is punishable by a
6-16 fine of not less than $500 or more than $2,000.
6-17 Sec. 161.086. JURISDICTION OF CRIMINAL PROCEEDING. (a) A
6-18 municipal court, including a municipal court of record, has
6-19 jurisdiction in all criminal cases arising under this subchapter
6-20 that:
6-21 (1) arise within the territorial limits of the
6-22 municipality; and
6-23 (2) are punishable only by a fine not to exceed
6-24 $2,000.
6-25 (b) This section prevails over any other provision of law,
6-26 ordinance, or charter.
6-27 Sec. 161.0865. MUNICIPAL ENFORCEMENT. (a) The governing
7-1 body of a municipality may grant authority under this section to a
7-2 municipal employee who is not a peace officer and who is employed
7-3 by:
7-4 (1) a health authority appointed under Section
7-5 121.021;
7-6 (2) a local health department established under
7-7 Section 121.031; or
7-8 (3) a public health district established under Section
7-9 121.041.
7-10 (b) The governing body may grant to the employee the power
7-11 to conduct random unannounced inspections of locations where
7-12 cigarettes or tobacco products are sold or delivered within the
7-13 territorial limits of the municipality.
7-14 (c) The governing body may also grant to the employee the
7-15 authority to issue a citation in the territorial limits of the
7-16 municipality to enforce a provision of this subchapter. The
7-17 citation must state the name of the person cited, the violation
7-18 charged, and the time and place the person is required to appear in
7-19 court.
7-20 (d) The court in which a person who receives a citation
7-21 under Subsection (c) is to appear may issue an arrest warrant for
7-22 the person for the violation described in the citation if the
7-23 person fails to appear on or before the return date stated in the
7-24 citation.
7-25 Sec. 161.087. CIVIL PENALTY. (a) A person is subject to a
7-26 civil penalty of not less than $100 or more than $2,000 for each
7-27 day of violation and each act of violation of Section 161.083,
8-1 161.084, or 161.085. In determining the amount of the civil
8-2 penalty, the court shall consider:
8-3 (1) the person's previous violations;
8-4 (2) the seriousness of the violation, including the
8-5 nature, circumstances, extent, and gravity of the violation;
8-6 (3) the demonstrated good faith of the person; and
8-7 (4) the amount necessary to deter future violations.
8-8 (b) At the request of the state treasurer or on the
8-9 initiative of the attorney general or district or county attorney,
8-10 the attorney general or the appropriate district or county attorney
8-11 shall institute and conduct the suit authorized by this section in
8-12 the name of the state.
8-13 (c) The state treasurer and the party bringing the suit may
8-14 recover reasonable expenses incurred in obtaining civil penalties,
8-15 including investigation costs, court costs, reasonable attorney's
8-16 fees, witness fees, and deposition expenses.
8-17 (d) A penalty collected under this section by the attorney
8-18 general shall be deposited to the credit of the general revenue
8-19 fund. A penalty collected under this section by a district or
8-20 county attorney shall be deposited to the credit of the general
8-21 fund of the county in which the suit was heard.
8-22 (e) The civil penalty authorized by this section is in
8-23 addition to any other civil, administrative, or criminal penalty
8-24 provided by law.
8-25 Sec. 161.088. PREEMPTION OF LOCAL LAW. This subchapter does
8-26 not preempt a local regulation of the sale, distribution, or use of
8-27 cigarettes or tobacco products or affect the authority of a
9-1 political subdivision to adopt or enforce an ordinance or
9-2 requirement relating to the sale, distribution, or use of
9-3 cigarettes or tobacco products if the regulation, ordinance, or
9-4 requirement:
9-5 (1) is compatible with and equal to or more stringent
9-6 than a requirement prescribed by this subchapter; or
9-7 (2) relates to an issue that is not specifically
9-8 addressed by this subchapter or Chapter 154 or 155, Tax Code.
9-9 Sec. 161.089. REPORTS OF VIOLATION. A local or state law
9-10 enforcement agency or other governmental unit shall notify the
9-11 state treasurer of any violation of this subchapter that the agency
9-12 or unit detects, investigates, or prosecutes.
9-13 <Sec. 161.082. WARNING NOTICE. (a) Each person who sells
9-14 tobacco products at retail or by vending machine shall post a sign
9-15 in a location that is conspicuous to all employees and customers
9-16 and that is close to the place at which the tobacco products may be
9-17 purchased.>
9-18 <(b) The sign must include the statement:>
9-19 <SALE OR PROVISION OF TOBACCO PRODUCTS TO A
9-20 MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY
9-21 LAW. UPON CONVICTION, A MAXIMUM FINE OF UP TO
9-22 $200 MAY BE IMPOSED.>
9-23 <(c) The board by rule shall determine the design and size
9-24 of the sign.>
9-25 <(d) The department on request shall provide the sign
9-26 without charge to any person who sells cigarette products. The
9-27 department may provide the sign without charge to cigarette
10-1 distributors or wholesale dealers of cigarette products in this
10-2 state for distribution to persons who sell cigarette products. A
10-3 distributor or wholesale dealer may not charge for distributing a
10-4 sign under this subsection.>
10-5 <(e) A person commits an offense if the person intentionally
10-6 fails to display a sign as prescribed by this section. An offense
10-7 under this subsection is a Class C misdemeanor.>
10-8 SECTION 3. Subchapter A, Chapter 154, Tax Code, is amended
10-9 by adding Section 154.002 to read as follows:
10-10 Sec. 154.002. WARNING NOTICE. (a) Each retailer shall post
10-11 on each vending machine and in a location that is conspicuous to
10-12 all employees and customers and that is close to the place at which
10-13 cigarettes may be purchased a sign that states that sale or
10-14 provision of cigarettes to a person younger than 18 years of age is
10-15 prohibited by law.
10-16 (b) The sign required by this section must be printed in
10-17 English and Spanish, state that identification may be required for
10-18 cigarette sales, and include a telephone number that a person may
10-19 call to report sales or deliveries of cigarettes to persons younger
10-20 than 18 years of age.
10-21 (c) The treasurer, Texas Board of Health, and Texas
10-22 Commission on Alcohol and Drug Abuse shall jointly adopt rules
10-23 specifying the design, size, and exact wording of the sign. The
10-24 wording must allow for use of the sign by a retailer required to
10-25 obtain a permit under this chapter, Chapter 155, or both. Each
10-26 agency shall publish the jointly adopted rules.
10-27 SECTION 4. (a) Section 154.111(b), Tax Code, is amended to
11-1 read as follows:
11-2 (b) An application for a permit required by this chapter
11-3 must be accompanied by a fee of:
11-4 (1) $300 <$100> for a bonded agent's permit;
11-5 (2) $300 <$100> for a distributor's permit;
11-6 (3) $200 <$50> for a wholesaler's permit; <and>
11-7 (4) $15 for each permit for a vehicle if the applicant
11-8 is also applying for a permit as a bonded agent, distributor, or
11-9 wholesaler or has received a current permit from the treasurer
11-10 under Sections 154.101 and 154.110; and
11-11 (5) $200 for a retailer's permit.
11-12 (b) Section 154.111(c), Tax Code, is repealed.
11-13 SECTION 5. Subchapter D, Chapter 154, Tax Code, is amended
11-14 by adding Section 154.1142 to read as follows:
11-15 Sec. 154.1142. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
11-16 (a) If the treasurer finds, after notice and hearing as provided
11-17 by this subchapter, that a permit holder has violated Section
11-18 154.002 or a provision of Subchapter H, Chapter 161, Health and
11-19 Safety Code, the treasurer may revoke the permit or suspend the
11-20 permit for not more than 60 days.
11-21 (b) If the permit holder has been found to have violated
11-22 Section 154.002 or Subchapter H, Chapter 161, Health and Safety
11-23 Code, once before during the preceding 36 months, the treasurer may
11-24 revoke the permit or suspend the permit for not more than 90 days.
11-25 (c) If the permit holder has been found to have violated
11-26 Section 154.002 or Subchapter H, Chapter 161, Health and Safety
11-27 Code, twice before during the preceding 36 months, the treasurer
12-1 may revoke the permit or suspend the permit for not more than 12
12-2 months.
12-3 SECTION 6. Subchapter A, Chapter 155, Tax Code, is amended
12-4 by adding Section 155.002 to read as follows:
12-5 Sec. 155.002. WARNING NOTICE. (a) Each retailer shall post
12-6 on each vending machine and in a location that is conspicuous to
12-7 all employees and customers and that is close to the place at which
12-8 tobacco products may be purchased a sign that states that sale or
12-9 provision of tobacco products to a person younger than 18 years of
12-10 age is prohibited by law.
12-11 (b) The sign required by this section must be printed in
12-12 English and Spanish, state that identification may be required for
12-13 sales of tobacco products, and include a telephone number that a
12-14 person may call to report sales or deliveries of tobacco products
12-15 to persons younger than 18 years of age.
12-16 (c) The treasurer, Texas Board of Health, and Texas
12-17 Commission on Alcohol and Drug Abuse shall jointly adopt rules
12-18 specifying the design, size, and exact wording of the sign. The
12-19 wording must allow for use of the sign by a retailer required to
12-20 obtain a permit under this chapter, Chapter 154, or both. Each
12-21 agency shall publish the jointly adopted rules.
12-22 SECTION 7. (a) Section 155.049(b), Tax Code, is amended to
12-23 read as follows:
12-24 (b) An application for a permit required by this chapter
12-25 must be accompanied by a fee of:
12-26 (1) $300 <$100> for a bonded agent's permit;
12-27 (2) $300 <$100> for a distributor's permit;
13-1 (3) $200 <$50> for a wholesaler's permit; <and>
13-2 (4) $15 for each permit for a vehicle if the applicant
13-3 is also applying for a permit as a bonded agent, distributor, or
13-4 wholesaler or has received a current permit from the treasurer
13-5 under Sections 155.041 and 155.048; and
13-6 (5) $200 for a retailer's permit.
13-7 (b) Section 155.049(c), Tax Code, is repealed.
13-8 SECTION 8. Subchapter C, Chapter 155, Tax Code, is amended
13-9 by adding Section 155.0591 to read as follows:
13-10 Sec. 155.0591. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
13-11 (a) If the treasurer finds, after notice and hearing as provided
13-12 by this subchapter, that a permit holder has violated Section
13-13 155.002 or a provision of Subchapter H, Chapter 161, Health and
13-14 Safety Code, the treasurer may revoke the permit or suspend the
13-15 permit for not more than 60 days.
13-16 (b) If the permit holder has been found to have violated
13-17 Section 155.002 or Subchapter H, Chapter 161, Health and Safety
13-18 Code, once before during the preceding 36 months, the treasurer may
13-19 revoke the permit or suspend the permit for not more than 90 days.
13-20 (c) If the permit holder has been found to have violated
13-21 Section 155.002 or Subchapter H, Chapter 161, Health and Safety
13-22 Code, twice before during the preceding 36 months, the treasurer
13-23 may revoke the permit or suspend the permit for not more than 12
13-24 months.
13-25 SECTION 9. Section 21.927, Education Code, is amended to
13-26 read as follows:
13-27 Sec. 21.927. SMOKING AND USE OF OTHER TOBACCO PRODUCTS ON
14-1 SCHOOL PROPERTY. The board of trustees of a school district shall
14-2 prohibit <students from> smoking and the use of other <or using>
14-3 tobacco products at any school related or sanctioned activity on or
14-4 off school property and shall instruct school personnel to enforce
14-5 the policy against smoking and the use of other tobacco products on
14-6 school property. It shall be the responsibility of the Central
14-7 Education Agency to monitor and enforce this provision of the law.
14-8 SECTION 10. (a) Except as provided by Subsection (b) of
14-9 this section, this Act takes effect September 1, 1993.
14-10 (b) Section 161.084, Health and Safety Code, as added by
14-11 this Act, takes effect January 1, 1994.
14-12 (c) The change in law made by this Act applies only to an
14-13 offense committed on or after the effective date of this Act. For
14-14 purposes of this subsection, an offense is committed before the
14-15 effective date of this Act if any element of the offense occurs
14-16 before that date. An offense committed before the effective date
14-17 of this Act is governed by the law in effect when the offense was
14-18 committed, and the former law is continued in effect for this
14-19 purpose.
14-20 (d) This Act applies to the sale or distribution of coupons,
14-21 cigarettes, or tobacco products on or after the effective date of
14-22 this Act. The sale or distribution of a coupon, cigarette, or
14-23 tobacco product before the effective date of this Act is governed
14-24 by the law in effect when the sale or distribution was made, and
14-25 that law is continued in effect for that purpose.
14-26 (e) The increase in the amount of a fee as provided by
14-27 Sections 4 and 7 of this Act takes effect for and is applicable to
15-1 the permit years beginning on or after March 1, 1994, and June 1,
15-2 1994, as applicable.
15-3 SECTION 11. The importance of this legislation and the
15-4 crowded condition of the calendars in both houses create an
15-5 emergency and an imperative public necessity that the
15-6 constitutional rule requiring bills to be read on three several
15-7 days in each house be suspended, and this rule is hereby suspended.