BILL ANALYSIS
H.B. 2460
By: Seidlits (Armbrister)
State Affairs
05-25-95
Senate Committee Report (Unamended)
BACKGROUND
In 1992, the Alcohol Drug Abuse and Mental Health Administration
Reorganization Act, a federal law that provides for block grants to
states for the purposes of funding substance abuse programs was
passed. An amendment to the legislation was included which
requires states to enact and enforce legislation prohibiting the
sale and distribution of tobacco products to persons under the age
of 18, or risk losing federal substance abuse block grants.
PURPOSE
As proposed, H.B. 2460 imposes regulation of the sale and
distribution of tobacco products to minors under the age of 18.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 161H, Health and Safety Code, as follows:
SUBCHAPTER H. SALE AND DISTRIBUTION OF CIGARETTES
OR TOBACCO PRODUCTS
Sec. 161.081. DEFINITIONS. Defines "cigarette," "commission,"
"distribute," "person," "proof of age," "public place,"
"sample," "sampling," and "tobacco product."
Sec. 161.082. New heading: SALE OR DISTRIBUTION OF CIGARETTES
OR TOBACCO PRODUCTS TO MINORS PROHIBITED. Redesignates
existing Section 161.081. (a) Sets forth the actions which
constitute an offense.
(b) Requires a person engaged in the sale of distribution
of cigarettes or tobacco products to demand proof of age
from a prospective purchaser or recipient if the person has
reason to believe that the prospective purchaser or
recipient is younger than 18 years of age.
(c) Provides that this section does not prohibit the
distribution of a cigarette or tobacco product to a family
member or to an employee when required in the performance of
the employee's duties.
(d) Makes a conforming change.
(e) Provides that it is a defense to prosecution under this
section that the person to whom the cigarette or tobacco
product was sold or distributed presented proof of age to
the defendant and the defendant reasonably relied on that
proof of age. Deletes the defense of being presented an
apparently valid Texas driver's license or an identification
card, issued by the Department of Public Safety (DPS) and
containing a physical description consistent with the
person's appearance, that purported to establish that the
person was 18 years of age or older.
(f) Provides that if an offense under this section occurs
in connection with a sale by an employee of the owner of a
store in which cigarettes or tobacco products are sold at
retail, the employee is criminally responsible for the
offense and is subject to prosecution. Sets forth the
provisions of responsibility if the offense occurs in
connection with a sale through a vending machine.
Sec. 161.083. New heading: NOTICE REQUIRED. Redesignated from
existing Section 161.082. (a) Prohibits the required sign
which states the liability associated with sale of cigarettes
from being smaller than 93-1/2 square inches.
(b) Sets forth the required language of the sign.
(c)-(d) Make conforming changes.
(e) Prohibits a notice regarding cigarettes or tobacco
products, other than the notice required by this section,
from being required to be posted or maintained in any store
that sells cigarettes or tobacco products at retail.
(f) Redesignated from existing Subsection (e). Removes the
condition of intent from the offense of failure to post a
notice under this section.
Sec. 161.084. LOCATION OF VENDING MACHINES CONTAINING
CIGARETTES OR TOBACCO PRODUCTS. (a) Prohibits a person from
installing or maintaining a vending machine containing
cigarettes or tobacco products in a place that is accessible
to persons younger than 18 years of age.
(b) Sets forth the conditions in which Subsection (a) does
not apply.
(c) Provides that a person commits a Class C misdemeanor if
the person violates Subsection (a).
Sec. 161.085. DISTRIBUTION OF SAMPLES. (a) Provides that a
person commits an offense if the person distributes cigarette
or tobacco product samples to certain persons.
(b) Requires a person engaged in sampling to demand proof
of age from a prospective recipient if the person has reason
to believe that the prospective recipient is younger than 18
years of age.
(c) Provides that an offense under Subsection (a) is a
Class C misdemeanor.
(d) Provides that it is a defense to prosecution under this
section that the person to whom the cigarette or tobacco
product sample was distributed presented proof of age to the
defendant and the defendant reasonably relied on that proof
of age.
Sec. 161.086. OUT-OF-PACKAGE SALES. Provides that a person
commits a Class C misdemeanor if the person sells cigarettes
or smokeless tobacco products other than in an unopened
package that originated with the manufacturer and that bears
the health warning required by federal law.
Sec. 161.087. POSSESSION, PURCHASE, AND RECEIPT OF CIGARETTES
OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) Sets forth the
actions under which a person who is younger than 18 years of
age commits an offense.
(b) Provides that this section does not prohibit a person
from possessing or accepting receipt of a cigarette or
tobacco product from a family member or from an employer
when required in the performance of the employee's duties.
(c) Provides that an offense under this section is a Class
C misdemeanor, with an exception. Requires the court to
require the defendant to present evidence to the court, in
the manner prescribed by the court, of satisfactory
participation in and the completion of the smoking awareness
course.
(d) Authorizes the court, on the conviction of a defendant
for an offense under this section, to order DPS to suspend
the defendant's driver's license or permit, or if the
defendant does not have a license or permit, to deny the
issuance of a license or permit to the defendant. Requires
the order to specify the period of suspension or denial,
which may not exceed 180 days immediately following the date
of the order.
(e) Authorizes a person convicted of a violation of this
section to apply to the court in which the person was
convicted to have the conviction expunged. Requires the
court to order the conviction and all complaints, verdicts,
sentences, and other documents relating to the offense to be
expunged from the applicant's record, and the conviction may
not be shown or made known for any purpose if the court
finds that the applicant successfully completed the smoking
awareness course ordered by the court.
(f) Authorizes a justice or municipal court to exercise
jurisdiction over any matter in which a court may impose a
requirement that a defendant attend a smoking awareness
course or order the suspension or denial of a driver's
license or permit under the conditions described by
Subsection (c) or (d).
(g) Provides that an offense under this section is not
subject to suit under Title 3, Family Code.
Sec. 161.088. NOTIFICATION OF EMPLOYEES. (a) Requires the
owner of a store in which cigarettes or tobacco products are
sold at retail to notify each individual employed by that
person as a retail sales clerk of certain provisions of state
law.
(b) Requires the notice required by Subsection (a) to be
provided before an individual begins work as a retail sales
clerk. Requires the individual to signify that the
individual has received the notice required by Subsection
(a) by signing a form stating that the law has been fully
explained, that the individual understands the law, and that
the individual, as a condition of employment, agrees to
comply with the law.
(c) Requires each form signed by an individual under this
section to indicate the date of the signature. Requires the
employer to retain the form signed by each individual
employed as a retail sales clerk until 120 days after the
individual has left the employer's employ.
(d) Provides that a person required by Subsection (a) to
notify employees commits an offense if the person fails to
provide the notice prescribed by this section. Provides
that an offense under this subsection is a misdemeanor
punishable by a fine of not less than $25 or more than $200.
Provides that if a person has been previously convicted of
an offense under this subsection within a two-year period,
an offense is a misdemeanor punishable by a fine of not less
than $100 or more than $500.
Sec. 161.089. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a)
Requires the Texas Commission on Alcohol and Drug Abuse
(commission) to enforce this subchapter in partnership with
county sheriffs and municipal chiefs of police and with their
cooperation, and to ensure the state's compliance with Section
1926 of 42 U.S.C. Section 300x-26 (Public Health Services Act)
and any implementing regulations adopted by the U.S.
Department of Health and Human Services (department).
Prohibits the commission from adopting rules, except as
provided by Section 161.093, governing the subject matter of
this subchapter.
(b) Authorizes the commission to make block grants to
counties and municipalities to be used by county sheriffs
and municipal chiefs of police to enforce this subchapter in
a manner that can reasonably be expected to reduce the
extent to which cigarettes and tobacco products are sold or
distributed to persons who are younger than 18 years of age.
Requires random unannounced inspections to be conducted at
various locations where cigarettes and tobacco products are
sold or distributed to ensure compliance with this
subchapter. Requires the commission to rely on sheriffs or
chiefs of police or their employees to enforce this
subchapter.
Sec. 161.090. INSPECTION ASSISTANCE BY PERSONS YOUNGER THAN
18 YEARS OF AGE; REQUIREMENTS. (a) Requires the use of a
person younger than 18 years of age to be conducted in such a
fashion that promotes fairness. Authorizes a person to be
enlisted by the commission to act as a minor decoy (decoy) to
test compliance with this subchapter only if the requirements
of this section are met.
(b) Requires written parental consent to be obtained for
the use of a person younger than 18 years of age to act as
a minor decoy to test compliance with this subchapter.
(c) Requires the decoy to be younger than 17 years of age
at the time of the inspection.
(d) Requires the decoy to have an appearance that would
cause a reasonably prudent seller of tobacco products to
request identification and proof of age.
(e) Requires the decoy to either carry the decoy's own
identification or to carry no identification. Requires a
decoy who carries identification to present it upon request
to any seller of tobacco products.
(f) Requires the decoy to answer truthfully any questions
about the minor's age.
Sec. 161.091. REPORT. Requires the commission to annually
prepare for submission by the governor to the secretary of the
department the report required by the federal public Health
Service Act.
Sec. 161.092. STATEWIDE UNIFORMITY. (a) Requires this
chapter to be implemented in an equitable and uniform manner
throughout the state and to be enforced to ensure the
eligibility for and receipt of any federal funds or grants
that the state now receives or may receive relating to the
provisions of this subchapter.
(b) Prohibits a county, municipality, political subdivision
of the state, or state agency from adopting or enforcing any
ordinances, rules, or regulations concerning the sale,
distribution, advertising, display, or promotion of
cigarettes or tobacco products.
Sec. 161.093. COMPLIANCE WITH FEDERAL LAW. (a) Authorizes
the commission to assess an administrative penalty against a
person who holds a permit issued under Chapter 154 or 155, Tax
Code, for a violation of Section 161.082 or 161.083 by the
permit holder or an employee of the permit holder.
(b) Prohibits an administrative penalty for violation of
Section 161.082 or 161.083 from exceeding $100 for the first
violation or $250 for a second or subsequent violation
within a 24-month period.
(c) Sets forth the criteria to be considered in assessing
penalties under Subsection (b).
(d) Authorizes the penalty to include the suspension or
revocation of a retailer's permit issued under Chapter 154
or 155, Tax Code, for a third or subsequent violation of
Section 161.082 within a 24-month period, except that a
suspension may not exceed seven days and a permit may not be
revoked until the permit has been suspended at least once in
the preceding 12-month period.
(e) Requires the commission to provide written notice and
a hearing under Chapter 2001, Government Code, before
determining that a violation has occurred. Authorizes a
permit holder to seek judicial review of an action of the
commission suspending or revoking a permit under this
section. Provides that the suspension or revocation is not
effective until judicial review is complete.
(f) Provides that it is a defense to the imposition of
administrative penalties or the suspension or revocation of
a permit under this section for a violation of Section
161.082 that the person to whom the cigarette or tobacco
product was sold or distributed presented at the time of
purchase or distribution an apparently valid proof of age.
(g) Sets forth the conditions in which it is a defense that
the employer acted in good faith regarding the suspension or
revocation of a permit for a violation of Section 161.082.
SECTION 2. Amends Chapter 154D, Tax Code, by adding Section
154.1016, as follows:
Sec. 154.1016. SALES; MINIMUM PACKAGE SIZE. Prohibits a
permit holder from selling or distributing cigarettes in a
package that contains fewer than 20 individual cigarettes.
SECTION 3. Amends Section 154.111(b), Tax Code, to require an
application for a permit required by this chapter to be accompanied
by, among other charges, a $50 fee for a retailers permit. Makes
conforming changes.
SECTION 4. Amends Section 154.121, Tax Code, as follows:
Sec. 154.121. REVENUE. (a) Created from existing text.
(b) Requires the revenue from the sale of permits to
retailers to be deposited in the state treasury to the
credit of a special account. Requires money from the
account to be appropriated only to the commission for the
Texas D.A.R.E. Institute for the institute's programs
relating to tobacco enforcement projects and education and
awareness concerning the use of drugs, alcohol, and tobacco.
(c) Defines "Texas D.A.R.E. Institute."
SECTION 5. Amends Section 154.602, Tax Code, to provide that the
amount withheld from revenue from retailers under Section
154.111(b)(4) to be in proportion to the costs of issuing
retailers' permits and the enforcement of this chapter on retail
premises. Makes conforming and changes.
SECTION 6. Amends Section 155.049(b), Tax Code, to make a
conforming change.
SECTION 7. Amends Section 155.058, Tax Code, to make conforming
changes.
SECTION 8. Repealer: Sections 154.111(c) and 155.049(c), Tax Code
(Permit Year; Fees-Licensing Year; Fees).
SECTION 9. Amends Chapter 155H, Tax Code, by adding Section
155.242, as follows:
Sec. 155.242. ENFORCEMENT FUNDS: RETAILER'S PERMIT REVENUE.
Authorizes the legislature to appropriate money from the
revenue received from permits issued to retailers under
Section 155.049(b)(4) to the treasurer for the administration
of the duties of the treasurer in issuing those permits and in
enforcing this chapter on retail premises. Requires the
amounts appropriated under this section to be taken from
revenue received from the permits before the revenue is
allocated under Section 155.058 to the account specified by
that section and to be deposited to the credit of the treasury
fiscal agency fund.
SECTION 10. Requires the notice required by Section 161.088,
Health and Safety Code, as added by this Act, to be given to each
individual who on the effective date of this Act, is working as a
retail sales clerk in a retail establishment that sells cigarettes
or tobacco products.
SECTION 11. Makes application of this Act prospective.
SECTION 12. (a) Effective date: September 1, 1995.
(b) Effective date of Section 161.084, Health and Safety
Code: January 1, 1996.
(c) Makes application of Section 2 of this Act prospective
beginning January 1, 1996.
(d) Makes application of Sections 3 and 6 of this Act
prospective beginning January 1, 1996.
SECTION 13. Emergency clause.