74R11229 KLL-D
By Seidlits H.B. No. 2460
Substitute the following for H.B. No. 2460:
By Danburg C.S.H.B. No. 2460
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the possession, purchase, sale, distribution, and
1-3 receipt of cigarettes and tobacco products; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter H, Chapter 161, Health and Safety
1-6 Code, is amended to read as follows:
1-7 SUBCHAPTER H. SALE AND DISTRIBUTION OF CIGARETTES OR
1-8 TOBACCO PRODUCTS <TO MINORS>
1-9 Sec. 161.081. DEFINITIONS. In this subchapter:
1-10 (1) "Cigarette" has the meaning assigned by Section
1-11 154.001, Tax Code.
1-12 (2) "Commission" means the Texas Commission on Alcohol
1-13 and Drug Abuse.
1-14 (3) "Distribute" means to sell, furnish, give, or
1-15 provide tobacco products, including tobacco product samples, to the
1-16 ultimate consumer.
1-17 (4) "Person" has the meaning assigned by Section 1.04,
1-18 Alcoholic Beverage Code.
1-19 (5) "Proof of age" means a driver's license or other
1-20 documentary or written evidence that purports to establish that the
1-21 person is 18 years of age or older.
1-22 (6) "Public place" means any public street, sidewalk,
1-23 or park or any area open to the public in any publicly owned and
1-24 operated building.
2-1 (7) "Sample" means an item distributed free to members
2-2 of the public to promote the product.
2-3 (8) "Sampling" means the distribution of samples to
2-4 members of the general public in a public place.
2-5 (9) "Tobacco product" has the meaning assigned by
2-6 Section 155.001, Tax Code.
2-7 Sec. 161.082 <161.081>. Sale or Distribution of Cigarettes
2-8 or Tobacco Products to Minors Prohibited. (a) A person commits an
2-9 offense if the person, as a commercial enterprise:
2-10 (1) sells, distributes <gives>, or causes to be sold
2-11 or distributed <given> a cigarette or <other> tobacco product to
2-12 someone who <the person knows> is younger than 18 years of age; or
2-13 (2) sells, distributes <gives>, or causes to be sold
2-14 or distributed <given> a cigarette or <other> tobacco product to
2-15 another person, knowing that the person receiving the cigarette or
2-16 <other> tobacco product intends to deliver it to someone who is
2-17 younger than 18 years of age.
2-18 (b) A person engaged in the sale or distribution of
2-19 cigarettes or tobacco products shall demand proof of age from a
2-20 prospective purchaser or recipient if the person has reason to
2-21 believe that the prospective purchaser or recipient is younger than
2-22 18 years of age.
2-23 (c) This section does not prohibit the distribution of a
2-24 cigarette or tobacco product to a family member or to an employee
2-25 when required in the performance of the employee's duties.
2-26 (d) <(b)> An offense under Subsection (a) <this section> is
2-27 a Class C misdemeanor.
3-1 (e) <(c)> It is a defense to prosecution under this section
3-2 that the person to whom the cigarette or <other> tobacco product
3-3 was sold or distributed <given> presented proof of age to the
3-4 defendant and the defendant reasonably relied on that proof of age
3-5 <an apparently valid Texas driver's license or an identification
3-6 card, issued by the Department of Public Safety and containing a
3-7 physical description consistent with the person's appearance, that
3-8 purported to establish that the person was 18 years of age or
3-9 older>.
3-10 (f) If an offense under this section occurs in connection
3-11 with a sale by an employee of the owner of a store in which
3-12 cigarettes or tobacco products are sold at retail, the employee is
3-13 criminally responsible for the offense and is subject to
3-14 prosecution. If the offense occurs in connection with a sale
3-15 through a vending machine, the proprietor of the establishment in
3-16 which the vending machine is located is criminally responsible for
3-17 the offense and is subject to prosecution, except that if the
3-18 proprietor has made an employee responsible for supervising the
3-19 vending machine, then the employee is criminally responsible for
3-20 the offense and is subject to prosecution.
3-21 Sec. 161.083 <161.082>. <Warning> Notice Required. (a)
3-22 Each person who sells cigarettes or tobacco products in a <at>
3-23 retail establishment or by vending machine shall post and maintain
3-24 a sign in a location that is conspicuous to all employees and
3-25 customers and that is close to the place at which the cigarettes or
3-26 tobacco products may be purchased. The sign may not be smaller
3-27 than 93-1/2 square inches.
4-1 (b) The sign must state the following <include the
4-2 statement>:
4-3 STATE LAW STRICTLY PROHIBITS THE SALE OF CIGARETTES OR
4-4 TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 18 YEARS.
4-5 PROOF OF AGE MAY BE REQUIRED. <SALE OR PROVISION OF
4-6 TOBACCO PRODUCTS TO A MINOR UNDER 18 YEARS OF AGE IS
4-7 PROHIBITED BY LAW. UPON CONVICTION, A MAXIMUM FINE OF
4-8 UP TO $200 MAY BE IMPOSED.>
4-9 (c) <The board by rule shall determine the design and size
4-10 of the sign.>
4-11 <(d)> The commission <department> on request shall provide
4-12 the sign without charge to any person who sells cigarettes or
4-13 tobacco <cigarette> products. The commission <department> may
4-14 provide the sign without charge to <cigarette> distributors or
4-15 wholesale dealers of cigarettes or tobacco <cigarette> products in
4-16 this state for distribution to persons who sell cigarettes or
4-17 tobacco <cigarette> products. A distributor or wholesale dealer
4-18 may not charge for distributing a sign under this subsection.
4-19 (d) A notice regarding cigarettes or tobacco products, other
4-20 than the notice required by this section, may not be required to be
4-21 posted or maintained in any store that sells cigarettes or tobacco
4-22 products at retail.
4-23 (e) A person commits an offense if the person
4-24 <intentionally> fails to display a sign as prescribed by this
4-25 section. An offense under this subsection is a Class C
4-26 misdemeanor.
4-27 Sec. 161.084. LOCATION OF VENDING MACHINES CONTAINING
5-1 CIGARETTES OR TOBACCO PRODUCTS. (a) Except as provided by
5-2 Subsection (b), a person may not install or maintain a vending
5-3 machine containing cigarettes or tobacco products in a place that
5-4 is accessible to persons younger than 18 years.
5-5 (b) Subsection (a) does not apply to:
5-6 (1) a bar, lounge, or other similar place that sells
5-7 or serves alcoholic beverages;
5-8 (2) private facilities or private businesses not open
5-9 to the public;
5-10 (3) places to which persons under the age of 18 are
5-11 not permitted access;
5-12 (4) places where the vending machine is under the
5-13 supervision of the owner or an employee of the owner of the
5-14 establishment;
5-15 (5) an industrial or manufacturing plant;
5-16 (6) a business office;
5-17 (7) a college or university; or
5-18 (8) a military installation.
5-19 (c) A person commits an offense if the person violates
5-20 Subsection (a). An offense under this subsection is a Class C
5-21 misdemeanor.
5-22 Sec. 161.085. DISTRIBUTION OF SAMPLES. (a) A person,
5-23 including a person in the business of selling or promoting
5-24 cigarettes or tobacco products or an agent or employee of that
5-25 person, commits an offense if the person distributes cigarette or
5-26 tobacco product samples:
5-27 (1) to a person who is younger than 18 years of age;
6-1 or
6-2 (2) in or on a public street, sidewalk, or park that
6-3 is within 500 feet of a playground, school, or other facility when
6-4 the facility is being used primarily by persons who are younger
6-5 than 18 years of age.
6-6 (b) A person engaged in sampling shall demand proof of age
6-7 from a prospective recipient if the person has reason to believe
6-8 that the prospective recipient is younger than 18 years of age.
6-9 (c) An offense under Subsection (a) is a Class C
6-10 misdemeanor.
6-11 (d) It is a defense to prosecution under this section that
6-12 the person to whom the cigarette or tobacco product sample was
6-13 distributed presented proof of age to the defendant and the
6-14 defendant reasonably relied on that proof of age.
6-15 Sec. 161.086. OUT-OF-PACKAGE SALES. (a) A person commits
6-16 an offense if the person sells cigarettes or smokeless tobacco
6-17 products other than in an unopened package that originated with the
6-18 manufacturer and that bears the health warning required by federal
6-19 law.
6-20 (b) An offense under this section is a Class C misdemeanor.
6-21 Sec. 161.087. POSSESSION, PURCHASE, AND RECEIPT OF
6-22 CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) A person
6-23 who is younger than 18 years of age commits an offense if the
6-24 person:
6-25 (1) possesses, purchases, or accepts receipt of a
6-26 cigarette or tobacco product; or
6-27 (2) falsely represents himself or herself to be 18
7-1 years of age or older by displaying proof of age that is false,
7-2 fraudulent, or not actually his or her own for the purpose of
7-3 possessing, purchasing, or receiving a cigarette or tobacco
7-4 product.
7-5 (b) This section does not prohibit a person from possessing
7-6 or accepting receipt of a cigarette or tobacco product from a
7-7 family member or from an employer when required in the performance
7-8 of the employee's duties.
7-9 (c) An offense under this section is a misdemeanor
7-10 punishable by a fine of not less than $25 or more than $200 or by
7-11 25 hours of community service work. If a person has been
7-12 previously convicted of an offense under this section within a
7-13 two-year period, the offense is a misdemeanor punishable by a fine
7-14 of not less than $100 or more than $500 or by 50 hours of community
7-15 service work.
7-16 (d) On the conviction of a minor for an offense under this
7-17 section, the court, in addition to assessing a fine or requiring
7-18 community service work, may require the defendant to attend a
7-19 smoking awareness course approved by the Texas Commission on
7-20 Alcohol and Drug Abuse or a similar smoking awareness course
7-21 approved by the court. The court shall require the defendant to
7-22 present evidence to the court, in the manner prescribed by the
7-23 court, of satisfactory participation in and completion of the
7-24 smoking awareness course.
7-25 (e) Except as otherwise provided by this section, an
7-26 adjudication under Title 3, Family Code, that a minor engaged in
7-27 conduct indicating a need for supervision because of a violation of
8-1 this section may not be used in any subsequent adjudication to
8-2 increase a sanction level assigned for the minor.
8-3 (f) In addition to the jurisdiction and powers provided by
8-4 the constitution and other law, a justice court or municipal court
8-5 may exercise jurisdiction over any matter in which a court may
8-6 impose a requirement that a defendant perform community service
8-7 work or attend a smoking awareness course under the conditions
8-8 described by Subsection (c) or (d).
8-9 Sec. 161.088. NOTIFICATION OF EMPLOYEES. (a) The owner of
8-10 a store in which cigarettes or tobacco products are sold at retail
8-11 shall notify each individual employed by that person as a retail
8-12 sales clerk that state law:
8-13 (1) prohibits the sale or distribution of cigarettes
8-14 or tobacco products to any person who is younger than 18 years of
8-15 age; and
8-16 (2) requires that proof of age be demanded from a
8-17 prospective purchaser or recipient if the person has reason to
8-18 believe that the prospective purchaser or recipient is younger than
8-19 18 years of age.
8-20 (b) The notice required by Subsection (a) must be provided
8-21 before an individual begins work as a retail sales clerk. The
8-22 individual shall signify that the individual has received the
8-23 notice required by Subsection (a) by signing a form stating that
8-24 the law has been fully explained, that the individual understands
8-25 the law, and that the individual, as a condition of employment,
8-26 agrees to comply with the law.
8-27 (c) Each form signed by an individual under this section
9-1 shall indicate the date of the signature. The employer shall
9-2 retain the form signed by each individual employed as a retail
9-3 sales clerk until 120 days after the individual has left the
9-4 employer's employ.
9-5 (d) A person required by Subsection (a) to notify employees
9-6 commits an offense if the person fails to provide the notice
9-7 prescribed by this section. An offense under this subsection is a
9-8 misdemeanor punishable by a fine of not less than $25 or more than
9-9 $200. If a person has been previously convicted of an offense
9-10 under this subsection within a two-year period, an offense is a
9-11 misdemeanor punishable by a fine of not less than $100 or more than
9-12 $500.
9-13 Sec. 161.089. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a)
9-14 The commission shall enforce this subchapter in partnership with
9-15 county sheriffs and municipal chiefs of police and with their
9-16 cooperation, and shall ensure the state's compliance with Section
9-17 1926 of the federal Public Health Service Act (42 U.S.C. Section
9-18 300x-26) and any implementing regulations adopted by the United
9-19 States Department of Health and Human Services. Except as provided
9-20 by Section 161.093, the commission may not adopt any rules
9-21 governing the subject matter of this subchapter.
9-22 (b) The commission may make block grants to counties and
9-23 municipalities to be used by county sheriffs and municipal chiefs
9-24 of police to enforce this subchapter in a manner that can
9-25 reasonably be expected to reduce the extent to which cigarettes and
9-26 tobacco products are sold or distributed to persons who are younger
9-27 than 18 years of age. At least annually, random unannounced
10-1 inspections shall be conducted at various locations where
10-2 cigarettes and tobacco products are sold or distributed to ensure
10-3 compliance with this subchapter. The commission shall rely, to the
10-4 fullest extent possible, on sheriffs or chiefs of police or their
10-5 employees to enforce this subchapter.
10-6 Sec. 161.090. INSPECTION ASSISTANCE BY PERSONS YOUNGER THAN
10-7 18 YEARS OF AGE; REQUIREMENTS. (a) The use of a person younger
10-8 than 18 years of age shall be conducted in such a fashion that
10-9 promotes fairness. A person may be enlisted by the commission to
10-10 act as a minor decoy to test compliance with this subchapter only
10-11 if the requirements of this section are met.
10-12 (b) Written parental consent must be obtained for the use of
10-13 a person younger than 18 years of age to act as a minor decoy to
10-14 test compliance with this subchapter.
10-15 (c) At the time of the inspection, the minor decoy shall be
10-16 younger than 17 years of age.
10-17 (d) The minor decoy shall have an appearance that would
10-18 cause a reasonably prudent seller of tobacco products to request
10-19 identification and proof of age.
10-20 (e) The minor decoy shall either carry the minor's own
10-21 identification showing the minor's correct date of birth or shall
10-22 carry no identification. A minor decoy who carries identification
10-23 shall present it on request to any seller of tobacco products.
10-24 (f) A minor decoy shall answer truthfully any questions
10-25 about the minor's age.
10-26 Sec. 161.091. REPORT. The commission shall annually prepare
10-27 for submission by the governor to the secretary of the United
11-1 States Department of Health and Human Services the report required
11-2 by Section 1926 of the federal Public Health Service Act (42 U.S.C.
11-3 Section 300x-26).
11-4 Sec. 161.092. STATEWIDE UNIFORMITY. (a) This chapter shall
11-5 be implemented in an equitable and uniform manner throughout the
11-6 state and shall be enforced to ensure the eligibility for and
11-7 receipt of any federal funds or grants that the state now receives
11-8 or may receive relating to the provisions of this subchapter.
11-9 (b) To ensure that this subchapter is equitably and
11-10 uniformly enforced, a county, municipality, political subdivision
11-11 of the state, or state agency may not adopt or enforce any
11-12 ordinances, rules, or regulations concerning the sale,
11-13 distribution, advertising, display, or promotion of cigarettes or
11-14 tobacco products.
11-15 Sec. 161.093. COMPLIANCE WITH FEDERAL LAW. (a) In order to
11-16 comply with federal law and only if required by rules issued under
11-17 the federal Alcohol, Drug Abuse, and Mental Health Administration
11-18 Reorganization Act (Pub. L. No. 102-321), the commission may assess
11-19 an administrative penalty against a person who holds a permit
11-20 issued under Chapter 154 or 155, Tax Code, for a violation of
11-21 Section 161.082 or 161.083 by the permit holder or an employee of
11-22 the permit holder.
11-23 (b) An administrative penalty for violating Section 161.082
11-24 or 161.083 may not exceed:
11-25 (1) $100 for the first violation; or
11-26 (2) $250 for a second or subsequent violation within a
11-27 24-month period.
12-1 (c) In assessing penalties under Subsection (b), the
12-2 commission shall consider the following mitigating factors:
12-3 (1) the seriousness of the violation;
12-4 (2) the history of previous violations;
12-5 (3) the person's demonstrated good faith; and
12-6 (4) any other matter that justice may require.
12-7 (d) For a third or subsequent violation of Section 161.082
12-8 within a 24-month period, the penalty may include the suspension or
12-9 revocation of a retailer's permit issued under Chapter 154 or 155,
12-10 Tax Code, except that:
12-11 (1) a suspension may not exceed seven days; and
12-12 (2) a permit may not be revoked until the permit has
12-13 been suspended at least once in the preceding 12-month period.
12-14 (e) The commission shall provide written notice and a
12-15 hearing under Chapter 2001, Government Code, before determining
12-16 that a violation has occurred. As provided under Subchapter G,
12-17 Chapter 2001, Government Code, a permit holder may seek judicial
12-18 review of an action of the commission suspending or revoking a
12-19 permit under this section. The suspension or revocation is not
12-20 effective until judicial review is complete.
12-21 (f) It is a defense to the imposition of administrative
12-22 penalties or the suspension or revocation of a permit under this
12-23 section for a violation of Section 161.082 that the person to whom
12-24 the cigarette or tobacco product was sold or distributed presented
12-25 at the time of purchase or distribution an apparently valid proof
12-26 of age.
12-27 (g) For the suspension or revocation of a permit for a
13-1 violation of Section 161.082 by an employee, it is a defense that
13-2 the employer acted in good faith and:
13-3 (1) conspicuously posted and reasonably maintained the
13-4 notice required by Section 161.083;
13-5 (2) received from the employee the signed form
13-6 required by Section 161.088; and
13-7 (3) if an employee has violated this subchapter more
13-8 than once:
13-9 (A) promptly terminated the employee's
13-10 employment; or
13-11 (B) promptly reassigned the employee to a
13-12 position in which the employee is prohibited from selling and does
13-13 not sell cigarettes or tobacco products for one year from the date
13-14 of the employee's last violation.
13-15 SECTION 2. Section 154.111(b), Tax Code, is amended to read
13-16 as follows:
13-17 (b) An application for a permit required by this chapter
13-18 must be accompanied by a fee of:
13-19 (1) $100 for a bonded agent's permit;
13-20 (2) $100 for a distributor's permit;
13-21 (3) $50 for a wholesaler's permit; <and>
13-22 (4) $15 for a retailer's permit; and
13-23 (5) $15 for each permit for a vehicle if the applicant
13-24 is also applying for a permit as a bonded agent, distributor, or
13-25 wholesaler or has received a current permit from the treasurer
13-26 under Sections 154.101 and 154.110.
13-27 SECTION 3. Section 154.121, Tax Code, is amended to read as
14-1 follows:
14-2 Sec. 154.121. REVENUE. (a) Revenue from the sale of
14-3 permits to distributors, wholesalers, and bonded agents is
14-4 allocated in the same manner as other revenue allocated by
14-5 Subchapter J.
14-6 (b) Subject to Section 154.602, revenue from the sale of
14-7 permits to retailers shall be deposited in the state treasury to
14-8 the credit of a special account. Money from the account shall be
14-9 appropriated only to the Texas Commission on Alcohol and Drug Abuse
14-10 for the enforcement of Subchapter H, Chapter 161, Health and Safety
14-11 Code, including the making of block grants under that subchapter
14-12 and for the Texas D.A.R.E. Institute for the institute's programs
14-13 relating to education and awareness concerning the use of drugs,
14-14 alcohol, and tobacco.
14-15 (c) In this section, "Texas D.A.R.E. Institute" means the
14-16 Texas Drug Abuse Resistance Education Institute that is a grant
14-17 program of Southwest Texas State University.
14-18 SECTION 4. Section 154.602, Tax Code, is amended to read as
14-19 follows:
14-20 Sec. 154.602. Funds for Enforcement. The legislature may
14-21 appropriate money from the cigarette tax to the treasurer for
14-22 manufacturing and printing of cigarette tax stamps and for the
14-23 administration of the duties of the treasurer under this chapter.
14-24 Amounts appropriated under this subsection shall be taken from
14-25 revenue received from the cigarette tax before the revenue is
14-26 allocated under Section 154.121(b) or 154.603 of this code to the
14-27 funds or account specified by those sections <that section> and
15-1 shall be deposited to the credit of the treasury fiscal agency
15-2 fund. The amount withheld from revenue received from retailers
15-3 under Section 154.111(b)(4) shall be in proportion to the costs of
15-4 issuing retailers' permits and the enforcement of this chapter on
15-5 retail premises.
15-6 SECTION 5. Section 155.049(b), Tax Code, is amended to read
15-7 as follows:
15-8 (b) An application for a permit required by this chapter
15-9 must be accompanied by a fee of:
15-10 (1) $100 for a bonded agent's permit;
15-11 (2) $100 for a distributor's permit;
15-12 (3) $50 for a wholesaler's permit; <and>
15-13 (4) $15 for a retailer's permit; and
15-14 (5) $15 for each permit for a vehicle if the applicant
15-15 is also applying for a permit as a bonded agent, distributor, or
15-16 wholesaler or has received a current permit from the treasurer
15-17 under Sections 155.041 and 155.048.
15-18 SECTION 6. Section 155.058, Tax Code, is amended to read as
15-19 follows:
15-20 Sec. 155.058. REVENUE. (a) Revenue from the sale of
15-21 permits to distributors, wholesalers, and bonded agents is
15-22 allocated in the same manner that other revenue is allocated by
15-23 Subchapter H.
15-24 (b) Subject to Section 155.242, revenue from the sale of
15-25 permits to retailers shall be deposited in the state treasury to
15-26 the credit of the account created by Section 154.121.
15-27 SECTION 7. Subchapter H, Chapter 155, Tax Code, is amended
16-1 by adding Section 155.242 to read as follows:
16-2 Sec. 155.242. ENFORCEMENT FUNDS: RETAILER'S PERMIT REVENUE.
16-3 The legislature may appropriate money from the revenue received
16-4 from permits issued to retailers under Section 155.049(b)(4) to the
16-5 treasurer for the administration of the duties of the treasurer in
16-6 issuing those permits and in enforcing this chapter on retail
16-7 premises. Amounts appropriated under this section shall be taken
16-8 from revenue received from the permits before the revenue is
16-9 allocated under Section 155.058 to the account specified by that
16-10 section and shall be deposited to the credit of the treasury fiscal
16-11 agency fund.
16-12 SECTION 8. Not later than October 1, 1995, the notice
16-13 required by Section 161.088, Health and Safety Code, as added by
16-14 this Act, must be given to each individual who, on the effective
16-15 date of this Act, is working as a retail sales clerk in a retail
16-16 establishment that sells cigarettes or tobacco products.
16-17 SECTION 9. The change in law made by this Act applies only
16-18 to an offense committed on or after the effective date of this Act.
16-19 For purposes of this subsection, an offense is committed before the
16-20 effective date of this Act if any element of the offense occurs
16-21 before that date. An offense committed before the effective date
16-22 of this Act is governed by the law in effect when the offense was
16-23 committed, and the former law is continued in effect for that
16-24 purpose.
16-25 SECTION 10. (a) Except as otherwise provided by this
16-26 section, this Act takes effect September 1, 1995.
16-27 (b) Section 161.084, Health and Safety Code, as added by
17-1 Section 1 of this Act, takes effect January 1, 1996.
17-2 (c) Sections 2 and 5 of this Act take effect May 1, 1996,
17-3 and apply only to a retailer's permit that expires on or after May
17-4 31, 1996.
17-5 SECTION 11. The importance of this legislation and the
17-6 crowded condition of the calendars in both houses create an
17-7 emergency and an imperative public necessity that the
17-8 constitutional rule requiring bills to be read on three several
17-9 days in each house be suspended, and this rule is hereby suspended.