1-1  By:  Zaffirini, et al.                                 S.B. No. 373
    1-2        (In the Senate - Filed February 17, 1993; February 17, 1993,
    1-3  read first time and referred to Committee on State Affairs;
    1-4  April 20, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 8, Nays 0; April 20, 1993,
    1-6  sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Harris of Dallas                              x    
   1-10        Rosson             x                               
   1-11        Carriker                                      x    
   1-12        Henderson                                     x    
   1-13        Leedom             x                               
   1-14        Lucio                                         x    
   1-15        Luna               x                               
   1-16        Nelson             x                               
   1-17        Patterson          x                               
   1-18        Shelley            x                               
   1-19        Sibley                                        x    
   1-20        West               x                               
   1-21        Whitmire           x                               
   1-22  COMMITTEE SUBSTITUTE FOR S.B. No. 373                   By:  Leedom
   1-23                         A BILL TO BE ENTITLED
   1-24                                AN ACT
   1-25  relating to the regulation of the sale, distribution, or use of
   1-26  cigarettes and tobacco products; providing penalties.
   1-27        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-28        SECTION 1.  This Act may be cited as the Children's Tobacco
   1-29  Prevention and Enforcement Act.
   1-30        SECTION 2.  Subchapter H, Chapter 161, Health and Safety
   1-31  Code, is amended to read as follows:
   1-32             SUBCHAPTER H.  SALE OF CIGARETTES OR TOBACCO
   1-33                         PRODUCTS <TO MINORS>
   1-34        Sec. 161.081.  DEFINITION.  In this subchapter, "permit
   1-35  holder" has the meaning assigned by Section 154.001 or 155.001, Tax
   1-36  Code, as applicable.
   1-37        Sec. 161.082.  ADMINISTRATION AND ENFORCEMENT.  (a)  The
   1-38  state treasurer is responsible for the administration and
   1-39  enforcement of this subchapter and for compliance with related
   1-40  provisions of the federal Alcohol, Drug Abuse and Mental Health
   1-41  Administration Reorganization Act, Pub.L. 102-321, and the rules
   1-42  prescribed under that law, except as otherwise provided by state
   1-43  law.
   1-44        (b)  In administering and enforcing this subchapter, the
   1-45  state treasurer has all rights and powers prescribed by Chapters
   1-46  154 and 155, Tax Code.
   1-47        (c)  The state treasurer shall:
   1-48              (1)  conduct random and targeted unannounced
   1-49  inspections of locations where cigarettes or tobacco products are
   1-50  sold or delivered to ensure compliance with this subchapter and as
   1-51  necessary to comply with related provisions of the federal Alcohol,
   1-52  Drug Abuse and Mental Health Administration Reorganization Act,
   1-53  Pub.L. 102-321, and the rules prescribed under that law;
   1-54              (2)  establish a system to allow persons to report the
   1-55  sale or delivery of cigarettes or tobacco products to a person
   1-56  younger than 18 years of age, including a sale or delivery by a
   1-57  permit holder;
   1-58              (3)  maintain statistics and information relating to
   1-59  violations of this subchapter and related provisions of the Tax
   1-60  Code and the activities carried out to enforce this subchapter and
   1-61  related provisions of the Tax Code;
   1-62              (4)  provide statistics and information to the Texas
   1-63  Commission on Alcohol and Drug Abuse relating to violations of this
   1-64  subchapter and the activities carried out by this state to enforce
   1-65  this subchapter and related provisions of the Tax Code;
   1-66              (5)  prescribe by rule the design and size of the sign
   1-67  required by Section 161.084; and
   1-68              (6)  adopt rules relating to:
    2-1                    (A)  the administration and enforcement of this
    2-2  subchapter, including the inspection and reporting requirements of
    2-3  this subchapter;
    2-4                    (B)  administrative proceedings for violations of
    2-5  this subchapter and Chapters 154 and 155, Tax Code; and
    2-6                    (C)  any other matter necessary to comply with
    2-7  related provisions of the federal Alcohol, Drug Abuse and Mental
    2-8  Health Administration Reorganization Act, Pub.L. 102-321, and the
    2-9  rules prescribed under that law.
   2-10        (d)  The Texas Commission on Alcohol and Drug Abuse shall:
   2-11              (1)  submit to the federal government reports necessary
   2-12  to comply with the federal Alcohol, Drug Abuse and Mental Health
   2-13  Administration Reorganization Act, Pub.L. 102-321, and the rules
   2-14  prescribed under that law;
   2-15              (2)  obtain from the state treasurer and the Central
   2-16  Education Agency statistics and information relating to violations
   2-17  of this subchapter and reports relating to activities carried out
   2-18  by this state to enforce this subchapter; and
   2-19              (3)  adopt rules relating to the reporting requirements
   2-20  prescribed by the federal Alcohol, Drug Abuse and Mental Health
   2-21  Administration Reorganization Act, Pub.L. 102-321, and the rules
   2-22  prescribed under that law.
   2-23        (e)  Before submitting a proposed rule for publication
   2-24  relating to the inspection and reporting requirements of Subsection
   2-25  (c) or (d), the state treasurer and the Texas Commission on Alcohol
   2-26  and Drug Abuse shall consult with each other regarding the rule.
   2-27        (f)  The state treasurer and the Texas Commission on Alcohol
   2-28  and Drug Abuse shall develop strategies to increase compliance with
   2-29  this subchapter.
   2-30        (g)  Subject to Subsection (h), the state treasurer may
   2-31  delegate to the Texas Department of Health or the Texas Alcoholic
   2-32  Beverage Commission authority to enforce this subchapter and may
   2-33  contract with the Texas Department of Health or the Texas Alcoholic
   2-34  Beverage Commission as necessary to administer or enforce this
   2-35  subchapter.
   2-36        (h)  The state treasurer may not delegate to or contract with
   2-37  the Texas Department of Health or the Texas Alcoholic Beverage
   2-38  Commission regarding authority to:
   2-39              (1)  hold administrative hearings under this subchapter
   2-40  or Chapters 154 and 155, Tax Code; or
   2-41              (2)  impose administrative penalties, including
   2-42  suspending or revoking permits, under this subchapter or Chapters
   2-43  154 and 155, Tax Code.
   2-44        Sec. 161.083.  SALE OR DISTRIBUTION OF CIGARETTES OR TOBACCO
   2-45  PRODUCTS TO PERSONS YOUNGER THAN 18 YEARS OF AGE <MINORS>
   2-46  PROHIBITED.  <(a)>  A person commits an offense if the person, as a
   2-47  commercial enterprise:
   2-48              (1)  with criminal negligence, sells, gives, or causes
   2-49  to be sold or given a cigarette or other tobacco product to someone
   2-50  who <the person knows> is younger than 18 years of age; or
   2-51              (2)  sells, gives, or causes to be sold or given a
   2-52  cigarette or other tobacco product to another person, knowing that
   2-53  the person receiving the cigarette or other tobacco product intends
   2-54  to deliver it to someone who is younger than 18 years of age.
   2-55        <(b)  An offense under this section is a Class C misdemeanor.>
   2-56        <(c)  It is a defense to prosecution under this section that
   2-57  the person to whom the cigarette or other tobacco product was sold
   2-58  or given presented to the defendant an apparently valid Texas
   2-59  driver's license or an identification card, issued by the
   2-60  Department of Public Safety and containing a physical description
   2-61  consistent with the person's appearance, that purported to
   2-62  establish that the person was 18 years of age or older.>
   2-63        Sec. 161.084 <161.082>.  WARNING NOTICE.  (a)  Each person
   2-64  who sells cigarettes or tobacco products at retail or by vending
   2-65  machine shall post <a sign> in a location that is conspicuous to
   2-66  all employees and customers and that is close to the place at which
   2-67  cigarettes or <the> tobacco products may be purchased a sign that
   2-68  states that sale or provision of cigarettes or tobacco products to
   2-69  a person younger than 18 years of age is prohibited by law.
   2-70        (b)  The sign required by this section must be printed in
    3-1  English and Spanish, state that identification may be required for
    3-2  cigarette and tobacco product sales, and include a telephone number
    3-3  that a person may call to report sales or deliveries of cigarettes
    3-4  or tobacco products to persons younger than 18 years of age <must
    3-5  include the statement:>
    3-6              <SALE OR PROVISION OF TOBACCO PRODUCTS TO A MINOR UNDER
    3-7              18 YEARS OF AGE IS PROHIBITED BY LAW.  UPON CONVICTION,
    3-8              A MAXIMUM FINE OF UP TO $200 MAY BE IMPOSED>.
    3-9        (c)  <The board by rule shall determine the design and size
   3-10  of the sign.>
   3-11        <(d)  The department on request shall provide the sign
   3-12  without charge to any person who sells cigarette products.  The
   3-13  department may provide the sign without charge to cigarette
   3-14  distributors or wholesale dealers of cigarette products in this
   3-15  state for distribution to persons who sell cigarette products.  A
   3-16  distributor or wholesale dealer may not charge for distributing a
   3-17  sign under this subsection.>
   3-18        <(e)>  A person commits an offense if the person
   3-19  <intentionally> fails to display a sign as prescribed by this
   3-20  section or any rules promulgated by the state treasurer.  <An
   3-21  offense under this subsection is a Class C misdemeanor.>
   3-22        Sec. 161.085.  VENDING MACHINES.  (a)  A person may not
   3-23  install or maintain a vending machine containing cigarettes or
   3-24  tobacco products in a place that is generally accessible to persons
   3-25  younger than 18 years of age, as defined by the state treasurer
   3-26  under Subsection (c).
   3-27        (b)  Subsection (a) does not apply to:
   3-28              (1)  an industrial or manufacturing plant;
   3-29              (2)  a military installation;
   3-30              (3)  a bar, lounge, or other similar facility or
   3-31  business where persons younger than 18 years of age are not allowed
   3-32  entry unless accompanied by a parent or other adult acting in place
   3-33  of a parent; or
   3-34              (4)  a private business office not generally accessible
   3-35  to persons younger than 18 years of age.
   3-36        (c)  The state treasurer may prescribe such rules relating to
   3-37  the location of vending machines containing cigarettes or tobacco
   3-38  products as are necessary to comply with the federal rules adopted
   3-39  under the federal Alcohol, Drug Abuse and Mental Health
   3-40  Administration Reorganization Act, Pub.L. 102-321, relating to
   3-41  restricting the access of persons under 18 years of age to
   3-42  cigarettes and tobacco products.
   3-43        (d)  A person who violates this section or a rule prescribed
   3-44  under authority of this section commits an offense.
   3-45        Sec. 161.086.  PREEMPTION OF LOCAL LAW.  (a)  This subchapter
   3-46  does not affect the authority of a political subdivision to adopt
   3-47  or enforce an ordinance or requirement, including penalties in the
   3-48  form of fines, relating to the sale or distribution of cigarettes
   3-49  or tobacco products to persons younger than 18 years of age if the
   3-50  regulation, ordinance, or requirement:
   3-51              (1)  is equal to or more stringent than a requirement
   3-52  prescribed by this subchapter or a rule prescribed under authority
   3-53  of this subchapter; or
   3-54              (2)  relates to an issue that is not addressed by this
   3-55  subchapter, Chapter 154 or 155, Tax Code, or a rule prescribed
   3-56  under authority of this subchapter or Chapter 154 or 155, Tax Code.
   3-57        (b)  Notwithstanding any other provision of this subchapter,
   3-58  Chapters 154 and 155, Tax Code, shall govern exclusively the
   3-59  administration and enforcement related to permits for engaging in
   3-60  business as a distributor, wholesaler, bonded agent, or retailer of
   3-61  cigarettes in this state.
   3-62        Sec. 161.087.  REPORTS OF INSPECTIONS AND VIOLATIONS.
   3-63  (a)  Each municipality, county, state agency, or other governmental
   3-64  unit that issues a citation or makes an inspection under this
   3-65  subchapter shall notify the state treasurer of the issuance of a
   3-66  citation and the inspection as required by the rules of the state
   3-67  treasurer.  The municipality, county, state agency, or other
   3-68  governmental unit shall provide the state treasurer such supporting
   3-69  documentation of inspections and prosecutions resulting from
   3-70  violations of this subchapter as the treasurer may require by rule.
    4-1        (b)  A municipality, county, state agency, or other
    4-2  governmental unit which makes inspections or issues citations under
    4-3  a local ordinance, order, or resolution, Section 250.002, Local
    4-4  Government Code, or other law intended to restrict the sale or
    4-5  delivery of cigarettes and tobacco products to persons younger than
    4-6  18 years of age shall maintain statistics and information relating
    4-7  to violations of this subchapter and the local ordinance, order,
    4-8  resolution, or other law and activities to enforce this subchapter
    4-9  and the local ordinance, order, resolution, or other law.  The
   4-10  municipality, county, state agency, or other governmental unit
   4-11  shall report the statistics and information maintained under this
   4-12  subsection as required by the rules of the state treasurer.
   4-13        Sec. 161.088.  CRIMINAL PENALTY.  An offense under Section
   4-14  161.083, 161.084, or 161.085 is a Class C misdemeanor.
   4-15        Sec. 161.089.  ADMINISTRATIVE PENALTY.  (a)  The state
   4-16  treasurer may impose an administrative penalty, as provided by this
   4-17  section, against a person who violates Section 161.083 or 161.084
   4-18  or a rule adopted under Section 161.085.  Each day a violation
   4-19  continues or occurs is a separate violation for purposes of
   4-20  imposing a penalty.
   4-21        (b)  The penalty for a first violation may be in an amount
   4-22  not to exceed $500.
   4-23        (c)  The penalty for a second or subsequent violation may be
   4-24  in an amount not to exceed $2,000.
   4-25        (d)  The amount of the penalty shall be based on:
   4-26              (1)  the seriousness of the violation;
   4-27              (2)  the history of previous violations;
   4-28              (3)  the person's demonstrated good faith; and
   4-29              (4)  any other matter that justice may require.
   4-30        (e)  If the state treasurer determines that a violation has
   4-31  occurred, the state treasurer shall give written notice of the
   4-32  violation to the person not later than the 15th day after the date
   4-33  of the determination.  The notice shall be given by certified mail.
   4-34  The notice must include a brief summary of the alleged violation
   4-35  and a statement of the amount of the recommended penalty and must
   4-36  inform the person that the person has a right to a hearing on the
   4-37  occurrence of the violation, the amount of the penalty, or both the
   4-38  occurrence of the violation and the amount of the penalty.
   4-39        (f)  Within 20 days after the date the person receives the
   4-40  notice, the person may accept the determination by paying the
   4-41  penalty to the state treasurer or may make a written request for a
   4-42  hearing on the occurrence of the violation, the amount of the
   4-43  penalty, or both the occurrence of the violation and the amount of
   4-44  the penalty.
   4-45        (g)  If the person requests a hearing the state treasurer
   4-46  shall set a hearing and give notice of the hearing to the person.
   4-47        (h)  The notice of the hearing shall be given to the person
   4-48  under the Administrative Procedure and Texas Register Act (Article
   4-49  6252-13a, Vernon's Texas Civil Statutes).
   4-50        (i)  If the person fails to timely respond to the notice, the
   4-51  state treasurer shall begin collection efforts under Article
   4-52  6252-5e, Revised Statutes.
   4-53        (j)  A penalty collected under this section shall be
   4-54  deposited in the general revenue fund.
   4-55        (k)  All proceedings under this section are subject to the
   4-56  Administrative Procedure and Texas Register Act (Article 6252-13a,
   4-57  Vernon's Texas Civil Statutes).
   4-58        Sec. 161.0891.  CIVIL PENALTY.  (a)  A person is subject to a
   4-59  civil penalty for each day during which the person is in violation
   4-60  of Section 161.084 or a rule adopted under Section 161.085 and for
   4-61  each act of violation of Section 161.083.  The amount of the civil
   4-62  penalty shall be not more than $500.  If it is shown that the
   4-63  person has been found to have violated Section 161.083 or Section
   4-64  161.084 or a rule adopted under Section 161.085 once before, the
   4-65  amount of the civil penalty shall be not more than $2,000.
   4-66        (b)  In determining the amount of the civil penalty, the
   4-67  court shall consider:
   4-68              (1)  the person's previous violations, if any;
   4-69              (2)  the seriousness of the violation, including the
   4-70  nature, circumstances, extent, and gravity of the violation;
    5-1              (3)  the demonstrated good faith of the person; and
    5-2              (4)  the amount necessary to deter future violations.
    5-3        (c)  At the request of the state treasurer or on the
    5-4  initiative of the attorney general or a district or county
    5-5  attorney, the attorney general or the appropriate district or
    5-6  county attorney may institute and conduct the suit authorized by
    5-7  this section in the name of the state.
    5-8        (d)  The state treasurer and the party bringing the suit may
    5-9  recover reasonable expenses incurred in obtaining civil penalties,
   5-10  including investigation costs, court costs, reasonable attorney
   5-11  fees, witness fees, and deposition expenses.
   5-12        (e)  A penalty collected under this section shall be
   5-13  deposited to the credit of the general revenue fund.
   5-14        (f)  The civil penalty authorized by this section is in
   5-15  addition to any other civil, administrative, or criminal penalty
   5-16  provided by law.
   5-17        Sec. 161.0892.  DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
   5-18  (a)  If the state treasurer finds, after notice and hearing as
   5-19  provided by Subchapter D, Chapter 154, or Subchapter C, Chapter
   5-20  155, Tax Code, as applicable, that a permit holder has violated
   5-21  this subchapter or rules adopted under this subchapter more than
   5-22  twice within a period of 12 consecutive months the state treasurer
   5-23  may revoke or suspend the permit.  The state treasurer shall adopt
   5-24  rules stating the time periods for which suspensions under this
   5-25  section shall be effective and the conditions under which
   5-26  revocations under this section shall be imposed.
   5-27        (b)  The state treasurer may revoke a person's permit if the
   5-28  person sells cigarettes or tobacco products during a period in
   5-29  which the permit has been suspended under this section.
   5-30        Sec. 161.0893.  DEFENSE.  (a)  It is a defense to
   5-31  prosecution, or the imposition of administrative or civil penalties
   5-32  or revocation or suspension of a permit, based on a violation of
   5-33  Section 161.083 that the person to whom a cigarette or tobacco
   5-34  product was sold or given presented to the defendant apparently
   5-35  valid proof of identification that contained a physical description
   5-36  and photograph consistent with the person's appearance, purported
   5-37  to establish that the person was 18 years of age or older, and was
   5-38  purportedly issued by a governmental agency.
   5-39        (b)  The proof of identification may include a driver's
   5-40  license issued by this state or another state, a passport, or an
   5-41  identification card issued by a state or the federal government.
   5-42        Sec. 161.0894.  LIABILITY FOR ACTIONS OF EMPLOYEE.  With
   5-43  respect to a prosecution of an employer or to the revocation or
   5-44  suspension of a permit, based on a violation of Section 161.083 by
   5-45  an employee, it is a defense that the employer acted in good faith
   5-46  and did all of the following:
   5-47              (1)  conspicuously posted and reasonably maintained
   5-48  appropriate signs in areas frequented by employees, such as near
   5-49  time cards or in lunchrooms, reminding the employees of the
   5-50  provisions of this subchapter and the penalties provided hereunder;
   5-51              (2)  conspicuously posted and reasonably maintained
   5-52  signs on or near any cash register or comparable area reminding
   5-53  employees to ask for proof of identification before selling
   5-54  cigarettes or tobacco products if there is any doubt as to the
   5-55  customer being younger than 18 years of age;
   5-56              (3)  provided the employee a copy of this subchapter or
   5-57  a reasonable summary of this subchapter and required the employee
   5-58  to sign a statement that the copy or the summary was received and
   5-59  understood and that the employee will uphold the law;
   5-60              (4)  provided the employee with a written list of the
   5-61  types of proof of identification that are deemed valid by the state
   5-62  to establish legal age under this subchapter; and
   5-63              (5)  if the employee has violated this subchapter more
   5-64  than once:
   5-65                    (A)  promptly terminated the employee's
   5-66  employment; or
   5-67                    (B)  promptly reassigned the employee to a
   5-68  position in which the employee is prohibited from selling and does
   5-69  not sell cigarettes or tobacco products for a period of one year
   5-70  from the date of the employee's last violation.
    6-1        SECTION 3.  Subsection (a), Section 154.114, Tax Code, is
    6-2  amended to read as follows:
    6-3        (a)  The treasurer may suspend or revoke a distributor's,
    6-4  wholesaler's, bonded agent's, or retailer's permit if the treasurer
    6-5  finds, after notice and hearing as provided by this section, that
    6-6  the permit holder violated this chapter or an administrative rule
    6-7  made under this chapter or Section 161.083, 161.084, or 161.085,
    6-8  Health and Safety Code, or a rule promulgated thereunder.
    6-9        SECTION 4.  Subsection (a), Section 155.059, Tax Code, is
   6-10  amended to read as follows:
   6-11        (a)  The treasurer may revoke or suspend a distributor's,
   6-12  wholesaler's, bonded agent's, or retailer's permit if the treasurer
   6-13  finds, after notice and hearing as provided by this section, that
   6-14  the permit holder violated this chapter or an administrative rule
   6-15  made under this chapter or Section 161.083, 161.084, or 161.085,
   6-16  Health and Safety Code, or a rule promulgated thereunder.
   6-17        SECTION 5.  Subsection (a), Section 154.403, Tax Code, is
   6-18  amended to read as follows:
   6-19        (a)  The treasurer with or without process may seize:
   6-20              (1)  cigarettes taxed under this chapter that are
   6-21  possessed or controlled by a person for the purpose of selling or
   6-22  removing the cigarettes in violation of this chapter;
   6-23              (2)  cigarettes that are removed, deposited, or
   6-24  concealed by a person intending to avoid payment of taxes imposed
   6-25  by this chapter;
   6-26              (3)  an automobile, boat, conveyance, or other type of
   6-27  vehicle used to remove or transport cigarettes by a person
   6-28  intending to avoid payment of taxes imposed by this chapter; <and>
   6-29              (4)  equipment, paraphernalia, or other tangible
   6-30  personal property used by a person intending to avoid payment of
   6-31  taxes imposed by this chapter found in the place where the
   6-32  cigarettes are found; and
   6-33              (5)  a vending machine for a third or subsequent
   6-34  violation of Section 161.085, Health and Safety Code, or a rule
   6-35  adopted under that section or a violation of this chapter.
   6-36        SECTION 6.  Section 154.304, Tax Code, is amended to read as
   6-37  follows:
   6-38        Sec. 154.304.  INSPECTION.  (a)  To determine the tax
   6-39  liability of a person dealing in cigarettes or the person's
   6-40  compliance with any provisions of this chapter or Subchapter H,
   6-41  Chapter 161, Health and Safety Code, the treasurer may during
   6-42  business hours:
   6-43              (1)  inspect any place of business <premises>,
   6-44  including a vehicle or a vending machine and its contents, where
   6-45  cigarettes are manufactured, produced, stored, transported, sold,
   6-46  or offered for sale or exchange;
   6-47              (2)  remain on the premises as long as necessary during
   6-48  business hours to determine the tax liability;
   6-49              (3)  examine the records required by this chapter or
   6-50  other records, books, documents, papers, accounts, and objects that
   6-51  the treasurer determines are necessary for conducting a complete
   6-52  examination; and
   6-53              (4)  examine stocks of cigarettes and cigarette stamps.
   6-54        (b)  A person dealing in cigarettes may not during business
   6-55  hours:
   6-56              (1)  fail to produce, on the treasurer's demand,
   6-57  records required by this chapter; or
   6-58              (2)  hinder or prevent the inspection of records or the
   6-59  examination of the premises.
   6-60        SECTION 7.  Section 154.512, Tax Code, is amended to read as
   6-61  follows:
   6-62        Sec. 154.512.  REFUSAL OF INSPECTION <OF PREMISES>.  A person
   6-63  commits an offense if the person refuses to permit a complete
   6-64  inspection during business hours by an authorized representative of
   6-65  the treasurer of any place of business <premises> where cigarettes
   6-66  are manufactured, produced, stored, transported, sold, or offered
   6-67  for sale or exchange, or fails to produce, on the treasurer's
   6-68  demand, records required by this chapter.
   6-69        SECTION 8.  Section 155.183, Tax Code, is amended to read as
   6-70  follows:
    7-1        Sec. 155.183.  INSPECTION.  (a)  To determine the tax
    7-2  liability of a person dealing in tobacco products or the person's
    7-3  compliance with any provisions of this chapter or Subchapter H,
    7-4  Chapter 161, Health and Safety Code, the treasurer may during
    7-5  business hours:
    7-6              (1)  inspect any place of business <premises>,
    7-7  including a vehicle or a vending machine and its contents, where
    7-8  tobacco products are manufactured, produced, stored, transported,
    7-9  sold, or offered for sale or exchange;
   7-10              (2)  remain on the premises as long as necessary during
   7-11  business hours <to determine the tax liability>;
   7-12              (3)  examine the records required by this chapter or
   7-13  other records, books, documents, papers, accounts, and objects that
   7-14  the treasurer determines are necessary for conducting a complete
   7-15  examination; and
   7-16              (4)  examine stocks of tobacco products.
   7-17        (b)  A person dealing in tobacco products may not during
   7-18  business hours:
   7-19              (1)  fail to produce, on the treasurer's demand,
   7-20  records required by this chapter; or
   7-21              (2)  hinder or prevent the inspection of records or the
   7-22  examination of the premises.
   7-23        SECTION 9.  Section 155.210, Tax Code, is amended to read as
   7-24  follows:
   7-25        Sec. 155.210.  REFUSAL OF INSPECTION <OF PREMISES>.  A person
   7-26  commits an offense if the person refuses to permit a complete
   7-27  inspection during business hours by an authorized representative of
   7-28  the treasurer of any place of business <premises> where tobacco
   7-29  products are manufactured, produced, stored, transported, sold, or
   7-30  offered for sale or exchange or fails to produce, on the
   7-31  treasurer's demand, records required by this chapter.
   7-32        SECTION 10.  Chapter 250, Local Government Code, is amended
   7-33  by adding Section 250.002 to read as follows:
   7-34        Sec. 250.002.  LOCAL ENFORCEMENT OF PROHIBITIONS ON SALE OR
   7-35  DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS TO PERSONS YOUNGER
   7-36  THAN 18.  (a)  The governing body of a municipality or county may
   7-37  grant authority under this section to a municipal or county
   7-38  employee who is not a peace officer and who is employed by:
   7-39              (1)  a health authority appointed under Section
   7-40  121.021, Health and Safety Code;
   7-41              (2)  a local health department established under
   7-42  Section 121.031, Health and Safety Code; or
   7-43              (3)  a public health district established under Section
   7-44  121.041, Health and Safety Code.
   7-45        (b)  The governing body may grant to the employee the power
   7-46  to conduct random unannounced inspections of locations where
   7-47  cigarettes or tobacco products are sold or delivered within the
   7-48  territorial limits of the municipality or county.
   7-49        (c)  The governing body may also grant to the employee the
   7-50  authority to issue a citation in the territorial limits of the
   7-51  municipality or county to enforce a provision of Subchapter H,
   7-52  Chapter 161, Health and Safety Code.  The citation must state the
   7-53  name of the person cited, the violation charged, and the time and
   7-54  place the person is required to appear in court.
   7-55        (d)  The court in which a person who receives a citation
   7-56  under Subsection (c) is to appear may issue an arrest warrant for
   7-57  the person for the violation described in the citation if the
   7-58  person fails to appear on or before the return date stated in the
   7-59  citation.
   7-60        (e)  County courts, justice courts, and municipal courts,
   7-61  including municipal courts of record, have jurisdiction in all
   7-62  criminal cases arising under this section that:
   7-63              (1)  arise within the territorial limits of the
   7-64  municipality or county, as appropriate; and
   7-65              (2)  are punishable only by a fine not to exceed
   7-66  $2,000.
   7-67        (f)  Subsection (e) prevails over any other provision of law,
   7-68  ordinance, or charter.
   7-69        SECTION 11.  Section 21.927, Education Code, is amended to
   7-70  read as follows:
    8-1        Sec. 21.927.  SMOKING AND USE OF OTHER TOBACCO PRODUCTS ON
    8-2  SCHOOL PROPERTY.  The board of trustees of a school district shall
    8-3  prohibit <students from> smoking and the use of <or using> tobacco
    8-4  products at any school related or sanctioned activity on or off
    8-5  school property and shall instruct school personnel to enforce the
    8-6  policy against smoking and the use of tobacco products on school
    8-7  property.  It shall be the responsibility of the Central Education
    8-8  Agency to monitor and enforce this provision of the law.
    8-9        SECTION 12.  (a)  Except as provided by Subsection (b) of
   8-10  this section, this Act takes effect September 1, 1993.
   8-11        (b)  Sections 1 through 10 of this Act take effect only if
   8-12  the administration and enforcement of the program provided by this
   8-13  Act are funded through provisions of S.B. No. 5, Acts of the 73rd
   8-14  Legislature, Regular Session, 1993.  If such funding is not
   8-15  provided or if the bill providing the funding is not finally passed
   8-16  and approved by the governor, those sections have no effect.
   8-17        SECTION 13.  (a)  The change in law made by this Act applies
   8-18  only to an offense committed on or after the effective date of this
   8-19  Act.  For purposes of this subsection, an offense is committed
   8-20  before the effective date of this Act if any element of the offense
   8-21  occurs before that date.  An offense committed before the effective
   8-22  date of this Act is governed by the law in effect when the offense
   8-23  was committed, and the former law is continued in effect for this
   8-24  purpose.
   8-25        (b)  This Act applies to the sale or distribution of
   8-26  cigarettes or tobacco products on or after the effective date of
   8-27  this Act.  The sale or distribution of a cigarette or tobacco
   8-28  product before the effective date of this Act is governed by the
   8-29  law in effect when the sale or distribution was made, and that law
   8-30  is continued in effect for that purpose.
   8-31        SECTION 14.  The importance of this legislation and the
   8-32  crowded condition of the calendars in both houses create an
   8-33  emergency and an imperative public necessity that the
   8-34  constitutional rule requiring bills to be read on three several
   8-35  days in each house be suspended, and this rule is hereby suspended.
   8-36                               * * * * *
   8-37                                                         Austin,
   8-38  Texas
   8-39                                                         April 20, 1993
   8-40  Hon. Bob Bullock
   8-41  President of the Senate
   8-42  Sir:
   8-43  We, your Committee on State Affairs to which was referred S.B. No.
   8-44  373, have had the same under consideration, and I am instructed to
   8-45  report it back to the Senate with the recommendation that it do not
   8-46  pass, but that the Committee Substitute adopted in lieu thereof do
   8-47  pass and be printed.
   8-48                                                         Rosson,
   8-49  Vice-Chairman
   8-50                               * * * * *
   8-51                               WITNESSES
   8-52                                                  FOR   AGAINST  ON
   8-53  ___________________________________________________________________
   8-54  Name:  Steve Bresnen                                           x
   8-55  Representing:  Lt Governor
   8-56  City:  Buda
   8-57  -------------------------------------------------------------------
   8-58  Name:  William C. Levin, M.D.                    x
   8-59  Representing:  Texas Cancer Council
   8-60  City:  Galveston
   8-61  -------------------------------------------------------------------
   8-62  Name:  Charles Lemaistre                         x
   8-63  Representing:  UTMD Anderson Cancer Center
   8-64  City:  Houston
   8-65  -------------------------------------------------------------------
   8-66  Name:  Bob Dickson                               x
   8-67  Representing:  TCADA
   8-68  City:  Austin
   8-69  -------------------------------------------------------------------
   8-70  Name:  David Smith                                             x
    9-1  Representing:  Texas Dept of Health
    9-2  City:  Austin
    9-3  -------------------------------------------------------------------
    9-4  Name:  Mark Clanton, M.D.                        x
    9-5  Representing:  American Cancer Society
    9-6  City:  Dallas
    9-7  -------------------------------------------------------------------
    9-8                                                  FOR   AGAINST  ON
    9-9  ___________________________________________________________________
   9-10  Name:  Gill Herber                               x
   9-11  Representing:  Texas Dept of Health
   9-12  City:  Austin
   9-13  -------------------------------------------------------------------
   9-14  Name:  Steve McKee                               x
   9-15  Representing:  Austin Wilderness Counseling
   9-16  City:  Austin
   9-17  -------------------------------------------------------------------
   9-18  Name:  William Heydenburg                        x
   9-19  Representing:  American Cancer Society
   9-20  City:  Austin
   9-21  -------------------------------------------------------------------
   9-22  Name:  Coley Cowden                                            x
   9-23  Representing:  TCADA
   9-24  City:  Austin
   9-25  -------------------------------------------------------------------
   9-26  Name:  Jim McDade                                              x
   9-27  Representing:  TCADA
   9-28  City:  Austin
   9-29  -------------------------------------------------------------------
   9-30  Name:  Milton Brown                                            x
   9-31  Representing:  TABC
   9-32  City:  Austin
   9-33  -------------------------------------------------------------------
   9-34  Name:  Susan Steeg                                             x
   9-35  Representing:  Texas Dept of Health
   9-36  City:  Austin
   9-37  -------------------------------------------------------------------
   9-38  Name:  Kae McLaughlin                            x
   9-39  Representing:  American Heart Assn
   9-40  City:  Austin
   9-41  -------------------------------------------------------------------
   9-42  Name:  Jennifer Thomas                           x
   9-43  Representing:  Self
   9-44  City:  Austin
   9-45  -------------------------------------------------------------------
   9-46  Name:  Glen Provost                                            x
   9-47  Representing:  Texas Dept Health
   9-48  City:  Austin
   9-49  -------------------------------------------------------------------
   9-50  Name:  Judy Jonas                                x
   9-51  Representing:  Texas Comprehensive School
   9-52  City:  Austin
   9-53  -------------------------------------------------------------------
   9-54  Name:  Dennis Baker                                            x
   9-55  Representing:  Texas Dept of Health
   9-56  City:  Austin
   9-57  -------------------------------------------------------------------
   9-58  Name:  Sylvia Ostos                              x
   9-59  Representing:  Texas PTA
   9-60  City:  Corpus Christi
   9-61  -------------------------------------------------------------------
   9-62  Name:  Annette Wieser                            x             x
   9-63  Representing:  Statewide Providers
   9-64  City:  Fredericksburg
   9-65  -------------------------------------------------------------------
   9-66  Name:  Oscar Rodriguez                                         x
   9-67  Representing:  Texas Education Agency
   9-68  City:  Austin
   9-69  -------------------------------------------------------------------
   9-70  Name:  Susan Pitman                              x
   10-1  Representing:  The Chemical Connection
   10-2  City:  Wimberley
   10-3  -------------------------------------------------------------------
   10-4  Name:  Camilla Huges                             x
   10-5  Representing:  City of West Lake
   10-6  City:  West Lake Hills
   10-7  -------------------------------------------------------------------
   10-8                                                  FOR   AGAINST  ON
   10-9  ___________________________________________________________________
  10-10  Name:  Jean Dubois                               x
  10-11  Representing:  Self
  10-12  City:  Austin
  10-13  -------------------------------------------------------------------
  10-14  Name:  Tom Smith                                 x
  10-15  Representing:  Public Citizen Inc
  10-16  City:  Austin
  10-17  -------------------------------------------------------------------
  10-18  Name:  Dan Reed                                  x
  10-19  Representing:  Texas Academy of Physician
  10-20  City:  Austin
  10-21  -------------------------------------------------------------------
  10-22  Name:  David Marwitz                             x
  10-23  Representing:  Texas Hospital Assn
  10-24  City:  Austin
  10-25  -------------------------------------------------------------------
  10-26  Name:  Wade Thomason                             x
  10-27  Representing:  American Lung Assn
  10-28  City:  Austin
  10-29  -------------------------------------------------------------------
  10-30  Name:  Edward Carter                             x
  10-31  Representing:  American Lung Assn
  10-32  City:  Austin
  10-33  -------------------------------------------------------------------
  10-34  Name:  Dr. Mathis Blackstock                     x
  10-35  Representing:  Texas Academy of Family
  10-36  City:  Austin
  10-37  -------------------------------------------------------------------
  10-38  Name:  Terry Douglas                             x
  10-39  Representing:  Texas Medical Assn
  10-40  City:  Austin
  10-41  -------------------------------------------------------------------
  10-42  Name:  Earl Martin                               x
  10-43  Representing:  Tx Partnership Tobacco Preven
  10-44  City:  Austin
  10-45  -------------------------------------------------------------------
  10-46  Name:  Letha Aycock                              x
  10-47  Representing:  Tarrant/Ft Worth Health Dept
  10-48  City:  Fort Worth
  10-49  -------------------------------------------------------------------
  10-50  Name:  Nick Curry, M.D.
  10-51  Representing:  Tarrant/Ft Worth Health Dept
  10-52  City:  Fort Worth
  10-53  -------------------------------------------------------------------
  10-54  Name:  Justine Strand                            x
  10-55  Representing:  Texas Academy of Physician
  10-56  City:  Austin
  10-57  -------------------------------------------------------------------
  10-58  Name:  Ann Kitchen                               x
  10-59  Representing:  Statewide Health Coordinating
  10-60  City:  Austin
  10-61  -------------------------------------------------------------------
  10-62  Name:  Arthur J. Wolff                           x
  10-63  Representing:  American Cancer Society
  10-64  City:  Round Rock
  10-65  -------------------------------------------------------------------
  10-66  Name:  Ron Todd                                  x
  10-67  Representing:
  10-68  City:  Austin
  10-69  -------------------------------------------------------------------
  10-70  Name:  Phillip Blackerby                         x
   11-1  Representing:  Austin Family House, Inc.
   11-2  City:  Austin
   11-3  -------------------------------------------------------------------
   11-4  Name:  Bill Finck                                        x
   11-5  Representing:  Finck Co
   11-6  City:  San Antonio
   11-7  -------------------------------------------------------------------
   11-8                                                  FOR   AGAINST  ON
   11-9  ___________________________________________________________________
  11-10  Name:  Jack Dillard                                      x
  11-11  Representing:  Philip Morris USA
  11-12  City:  Austin
  11-13  -------------------------------------------------------------------
  11-14  Name:  Ronnie Volening                                   x
  11-15  Representing:  Southland Corp
  11-16  City:  Dallas
  11-17  -------------------------------------------------------------------
  11-18  Name:  Joe Ratcliff                                      x
  11-19  Representing:  Tx Assn of Wholesale Distrib
  11-20  City:  Austin
  11-21  -------------------------------------------------------------------
  11-22  Name:  Chuck Courtney                                    x
  11-23  Representing:  Texas Retailers Assn
  11-24  City:  Austin
  11-25  -------------------------------------------------------------------
  11-26  Name:  Ed Debiec                                               x
  11-27  Representing:  Texas Education Agency
  11-28  City:  Austin
  11-29  -------------------------------------------------------------------
  11-30  Name:  Ladd Little                                       x
  11-31  Representing:  Texas  Merchandise Vending Co
  11-32  City:  San Antonio
  11-33  -------------------------------------------------------------------