BILL ANALYSIS



C.S.S.B. 707
By: Rosson (Serna)
5-3-95
Committee Report (Substituted)


BACKGROUND

Throughout Texas in many rural, suburban, and inner city areas
there exist problems directly related to aerosol spray cans.  These
problems range from drug abuse to vandalism.  It is well known that
graffiti pollutes our streets, buildings, and walls in many
sections of our towns.  As state officials we can increase the
penalties and support "wipeouts", but we still are losing the fight
against crimes committed by youths.  

PURPOSE

As proposed, S.B. 707 aims to curtail the ability of minors to
obtain and possess aerosol paint by making possession of aerosol
paint by a person under 18 a class C misdemeanor and requiring
certain business display practices to reduce the incidence of
graffiti and to promote public health, safety, and welfare.

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 485, Subchapter C, Health and Safety
Code, by adding Section 485.0331 to read as follows:
           
     Sec. 485.0331 POSSESSION OF AEROSOL PAINT BY A MINOR. (a) A
person under 18 years old commits an offense if the person
knowingly or intentionally possesses aerosol paint.
     (b) It is an affirmative defense for the person possessing the
paint to be under direct supervision of an adult having supervisory
responsibility over the person.
     (c) An offense under this section is a class C misdemeanor.

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

     Sec. 485.019 RESTRICTION OF ACCESS TO AEROSOL PAINTS. (a) A
business establishment that displays aerosol paints must display
them:
           (1) in the line of sight of a cashier or in the line of
sight from a workstation normally continuously occupied during
normal work hours;
           (2) in a manner that makes the paint in accessible to
patrons of the business establishment without the assistance of an
employee of the establishment; or
           (3) in an area electronically protected, or viewed by
surveillance equipment that is monitored, during business hours.
     (b) Permits a court to issue a warning to business
establishments for their first violation of this section or impose
a civil penalty of $100. After the first violation, a business is
liable to the state for a civil penalty of $100 for each subsequent
violation.
     (c) Permits the court, upon the third violation of this
section in a calendar year, to issue an injunction prohibiting the
business from selling aerosol paints for a period of not more than
two years. A business that violates the injunction is liable to the
state for a civil penalty of $100, in addition to any other
penalties allowed by law, for each day the violation continues.
     (d) If the business fails to pay a civil penalty under this
section, a court may issue an injunction prohibiting the
establishment from selling aerosol paint until the establishment
pays the penalty, attorney's fees, and court costs.
     (e) Allows the attorney general or the county or district
attorney to issue a warning, collect a 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 ORIGINAL TO SUBSTITUTE

The original bill related only to the accessibility of certain
paints to business patrons in certain municipalities. The committee
substitute relates to creating an offense for the possession of
aerosol paint by a person younger than 18 years of age and
regulating access by customers to aerosol paints and provides
penalties.

The original bill amended current law to allow a municipality to
enact an ordinance or rule requiring a business to display abusable
aerosol paint in a manner that makes the paint accessible to
patrons of the business only with the assistance of personnel of
the business if the governing body of that municipality finds by
resolution that the problems associated with aerosol paint abuse in
the municipality are so pervasive that enacting an ordinance
limiting patron accessibility is necessary to promote public
health, safety, or welfare.

The committee substitute makes it a Class C Misdemeanor for a
person under 18 years old to knowingly or intentionally possess
aerosol paint. The committee substitute sets out an affirmative
defense to prosecution under this section. The committee substitute
requires that aerosol paints be displayed in the line of sight of
the cashier or workstation normally continuously occupied and in a
manner that makes the paint inaccessible without assistance of an
employee of the business, or in an electronically protected area.
The committee substitute allows a court to issue warnings, civil
penalties and injunctions for violations of this section and sets
out the process and penalty amounts. The committee substitute
allows the attorney general, county attorney or district attorney
to issue warning, collect a penalty or request an injunction. The
committee substitute requires collected penalties to be deposited
in the general revenue fund.


SUMMARY OF COMMITTEE ACTION

SB 707 was considered by the County Affairs Committee in a public
hearing on 5/3/95. Representative Serna opened. The following
person testified for SB 707: Ed Howard, representing Wal-Mart
Stores, Inc. Representative Serna closed. SB 707 was left pending.
Later in the public hearing on 5/3/95, SB 707 was considered as
pending business. The County Affairs Committee considered a
complete committee substitute. The committee substitute was adopted
without objection. SB 707 was reported favorably, as substituted,
with the recommendation that it do pass and be printed, by the
record vote of 6 ayes, 0 nays, 0 pnv, 3 absent.