BILL ANALYSIS



C.S.H.B. 2115
By: Lewis, Glenn
04-19-95
Committee Report (Substituted)


BACKGROUND

Municipalities across the state are experiencing a considerable
problem with graffiti.  As a result of citizen concern, the Fort
Worth City Council directed the City Manager to create a Task Force
on Graffiti comprised of citizens and municipality staff to examine
the issue and to develop a workable program to address graffiti in
Fort Worth and Tarrant County.  As part of its overall
recommendations to reduce the incidence of graffiti in Fort Worth,
this task force advocated several legislative initiatives that have
been endorsed by the Fort Worth City Council.  The legislative
initiatives are aimed at reducing the ability of minors to obtain
and possess aerosol paint and thereby reduce the incidence of
graffiti.  

PURPOSE

If enacted, C.S.H.B. 2115 would allow cities to pass an ordinance
requiring businesses to display aerosol paint in such a manner that
makes these items accessible to patrons only with assistance of the
business personnel.  In addition, the legislation would make the
possession of aerosol paint by a person under 18 a misdemeanor
offense punishable by a fine of up to $500 and would make business
that violate new rules liable for civil penalties.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency, or institution.

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapter C, Chapter 485, Health and Safety
Code, by adding Section 485.0331 as follows:

Sec. 485.0331.  POSSESSION OF AEROSOL PAINT BY A MINOR.

     (a) creates an offense for individuals younger than 18 found
     to be knowingly or intentionally in possession of aerosol
     paint.

     (b) creates an affirmative defense to prosection if the person
     in possession is found to be under the direct supervision of
     an adult. 

     (c) classifies an offense under this section as a Class C
     misdemeanor.

SECTION 2.  Amends Subchapter B, Chapter 485, Health and Safety
Code, by adding Section 485.019 as follows:

Sec. 485.019.  RESTRICTION OF ACCESS TO AEROSOL PAINTS.

     (a) requires a business establishment that displays aerosol
     paints to display the paints:

           (1) in the cashier's sight line or in the sight line
           from a work station normally occupied during business
           hours;

           (2) in a manner that makes the paint inaccessible to
           customers without an employee's assistance; or


           (3) in an area electronically protected or viewed by
           surveillance equipment that is monitored during business
           hours.

     (b) makes a business that violates this section liable to the
     state for a civil penalty of $100 for the first violation and
     $200 for each subsequent violation.

     (c) allows the court to issue an injunction, for the third
     violation in a calendar year, prohibiting the business from
     selling aerosol paints for a maximum of two years; makes a
     business that violates the injunction liable for a civil
     penalty of $100 for each day the violation continues.

     (d) allows a court to issue an injunction prohibiting the
     business from selling aerosol paints until the business pays
     required penalty, attorney's fees, and court costs.

     (e) allows the attorney general or the county or district
     attorney to file suit to collect the penalty or request an
     injunction.

     (f) requires a penalty collected under this section to be
     deposited in the state treasury to the credit of the general
     revenue fund.

SECTION 3.  Effective date:  September 1, 1995.

SECTION 4.  Emergency clause.

COMPARISON OF SUBSTITUTE TO ORIGINAL

SECTION 2 of the substitute amends Subchapter B, Chapter 485,
Health and Safety Code, by adding Section 485.019, RESTRICTION OF
ACCESS TO AEROSOL PAINTS.  This section delineates where, in
stores, aerosol paints can be displayed by the businesses that sell
them.  This section also describes the penalties assessed on
businesses that violate these rules.

SECTION 2 of the original bill, amending Section 485.018(a), Health
and Safety Code, is deleted.

SUMMARY OF COMMITTEE ACTION

HB 2115 was considered by the full committee in a public hearing on
April 19, 1995.  The following persons testified in favor of the
bill:

     Robert N. Hills, representing the National Council to Prevent
     Delinquency;
     Dan T. Worthey, representing the City of Fort Worth; and
     Samith (Sam) Hill, representing the City of Forth Worth.

The committee considered a complete committee substitute for the
bill.  The following person testified in favor of the substitute:

     Sharon Hull, representing the Southwest Hardware and Farm
     Implement 
Association.

The substitute was withdrawn.  The committee considered a complete
committee substitute for the bill.  An amendment was offered to the
substitute.  The amendment was adopted by a non-record vote.  The
substitute as amended was adopted by a non-record vote.  The Chair
directed the staff to incorporate the amendment into the
substitute.  HB 2115 was reported favorably as substituted with the
recommendation that it do pass and be printed, by a record vote of
5 ayes, 0 nays, 0 pnv, and 4 absent.