By Seidlits H.B. No. 2460
74R7688 KLL-F
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) "Department" means the Department of Public Safety
1-13 of the State of Texas.
1-14 (3) "Distribute" means to sell, furnish, give, or
1-15 provide to the ultimate consumer.
1-16 (4) "Person" has the meaning assigned by Section 1.04,
1-17 Alcoholic Beverage Code.
1-18 (5) "Proof of age" means a driver's license or other
1-19 documentary or written evidence that purports to establish that the
1-20 person is 18 years of age or older.
1-21 (6) "Public place" means any public street, sidewalk,
1-22 or park or any area open to the public in any publicly owned and
1-23 operated building.
1-24 (7) "Sample" means an item distributed free to members
2-1 of the public to promote the product.
2-2 (8) "Tobacco product" has the meaning assigned by
2-3 Section 155.001, Tax Code.
2-4 Sec. 161.082 <161.081>. Sale or Distribution of Cigarettes
2-5 or Tobacco Products to Minors Prohibited. (a) A person commits an
2-6 offense if the person, as a commercial enterprise:
2-7 (1) sells, distributes <gives>, or causes to be sold
2-8 or distributed <given> a cigarette or <other> tobacco product to
2-9 someone who <the person knows> is younger than 18 years of age; or
2-10 (2) sells, distributes <gives>, or causes to be sold
2-11 or distributed <given> a cigarette or <other> tobacco product to
2-12 another person, knowing that the person receiving the cigarette or
2-13 <other> tobacco product intends to deliver it to someone who is
2-14 younger than 18 years of age.
2-15 (b) A person engaged in the sale or distribution of
2-16 cigarettes or tobacco products shall demand proof of age from a
2-17 prospective purchaser or recipient if the person has reason to
2-18 believe that the prospective purchaser or recipient is younger than
2-19 18 years of age.
2-20 (c) This section does not prohibit the distribution of a
2-21 cigarette or tobacco product to a family member or to an employee
2-22 when required in the performance of the employee's duties.
2-23 (d) <(b)> An offense under Subsection (a) <this section> is
2-24 a Class C misdemeanor.
2-25 (e) <(c)> It is a defense to prosecution under this section
2-26 that the person to whom the cigarette or <other> tobacco product
2-27 was sold or distributed <given> presented proof of age to the
3-1 defendant and the defendant reasonably relied on that proof of age
3-2 <an apparently valid Texas driver's license or an identification
3-3 card, issued by the Department of Public Safety and containing a
3-4 physical description consistent with the person's appearance, that
3-5 purported to establish that the person was 18 years of age or
3-6 older>.
3-7 (f) If an offense under this section occurs in connection
3-8 with a sale by an employee of the owner of a store in which
3-9 cigarettes or tobacco products are sold at retail, the employee is
3-10 criminally responsible for the offense and is subject to
3-11 prosecution. If the offense occurs in connection with a sale
3-12 through a vending machine, the proprietor of the establishment in
3-13 which the vending machine is located is criminally responsible for
3-14 the offense and is subject to prosecution, except that if the
3-15 proprietor has made an employee responsible for supervising the
3-16 vending machine, then the employee is criminally responsible for
3-17 the offense and is subject to prosecution.
3-18 Sec. 161.083 <161.082>. <Warning> Notice Required.
3-19 (a) Each person who sells cigarettes or tobacco products in a <at>
3-20 retail establishment or by vending machine shall post and maintain
3-21 a sign in a location that is conspicuous to all employees and
3-22 customers and that is close to the place at which the cigarettes or
3-23 tobacco products may be purchased. The sign may not be smaller
3-24 than 93-1/2 square inches.
3-25 (b) The sign must state the following <include the
3-26 statement>:
3-27 STATE LAW STRICTLY PROHIBITS THE SALE OF CIGARETTES OR
4-1 TOBACCO PRODUCTS TO PERSONS UNDER THE AGE OF 18 YEARS.
4-2 PROOF OF AGE MAY BE REQUIRED. <SALE OR PROVISION OF
4-3 TOBACCO PRODUCTS TO A MINOR UNDER 18 YEARS OF AGE IS
4-4 PROHIBITED BY LAW. UPON CONVICTION, A MAXIMUM FINE OF
4-5 UP TO $200 MAY BE IMPOSED.>
4-6 (c) <The board by rule shall determine the design and size
4-7 of the sign.>
4-8 <(d)> The department on request shall provide the sign
4-9 without charge to any person who sells cigarettes or tobacco
4-10 <cigarette> products. The department may provide the sign without
4-11 charge to <cigarette> distributors or wholesale dealers of
4-12 cigarettes or tobacco <cigarette> products in this state for
4-13 distribution to persons who sell cigarettes or tobacco <cigarette>
4-14 products. A distributor or wholesale dealer may not charge for
4-15 distributing a sign under this subsection.
4-16 (d) A notice regarding cigarettes or tobacco products, other
4-17 than the notice required by this section, may not be required to be
4-18 posted or maintained in any store that sells cigarettes or tobacco
4-19 products at retail.
4-20 (e) A person commits an offense if the person
4-21 <intentionally> fails to display a sign as prescribed by this
4-22 section. An offense under this subsection is a Class C
4-23 misdemeanor.
4-24 Sec. 161.084. LOCATION OF VENDING MACHINES CONTAINING
4-25 CIGARETTES OR TOBACCO PRODUCTS. (a) Except as provided by
4-26 Subsection (b), a person may not install or maintain a vending
4-27 machine containing cigarettes or tobacco products in a place that
5-1 is accessible to persons younger than 18 years.
5-2 (b) Subsection (a) does not apply to:
5-3 (1) a bar, lounge, or other similar place that sells
5-4 or serves alcoholic beverages;
5-5 (2) private facilities or private businesses not open
5-6 to the public;
5-7 (3) places to which persons under the age of 18 are
5-8 not permitted access;
5-9 (4) places where the vending machine is under the
5-10 supervision of the owner or an employee of the owner of the
5-11 establishment;
5-12 (5) an industrial plant;
5-13 (6) a business office;
5-14 (7) a college or university; or
5-15 (8) a military installation.
5-16 (c) A person commits an offense if the person violates
5-17 Subsection (a). An offense under this subsection is a Class C
5-18 misdemeanor.
5-19 Sec. 161.085. DISTRIBUTION OF SAMPLES. (a) A person
5-20 commits an offense if the person distributes cigarette or tobacco
5-21 product samples:
5-22 (1) to a person who is younger than 18 years of age;
5-23 or
5-24 (2) in or on a public street, sidewalk, or park that
5-25 is within 500 feet of a playground, school, or other facility when
5-26 the facility is being used primarily by persons who are younger
5-27 than 18 years of age.
6-1 (b) A person distributing cigarette or tobacco product
6-2 samples shall demand proof of age from a prospective recipient if
6-3 the person has reason to believe that the prospective recipient is
6-4 younger than 18 years of age.
6-5 (c) An offense under Subsection (a) is a Class C
6-6 misdemeanor.
6-7 (d) It is a defense to prosecution under this section that
6-8 the person to whom the cigarette or tobacco product sample was
6-9 distributed presented proof of age to the defendant and the
6-10 defendant reasonably relied on that proof of age.
6-11 Sec. 161.086. OUT-OF-PACKAGE SALES. (a) A person commits
6-12 an offense if the person sells cigarettes or smokeless tobacco
6-13 products other than in an unopened package that originated with the
6-14 manufacturer and that bears the health warning required by federal
6-15 law.
6-16 (b) An offense under this section is a Class C misdemeanor.
6-17 Sec. 161.087. POSSESSION, PURCHASE, AND RECEIPT OF
6-18 CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) A person
6-19 who is younger than 18 years of age commits an offense if the
6-20 person:
6-21 (1) possesses, purchases, or accepts receipt of a
6-22 cigarette or tobacco product; or
6-23 (2) falsely represents himself or herself to be 18
6-24 years of age or older by displaying proof of age that is false,
6-25 fraudulent, or not actually his or her own for the purpose of
6-26 possessing, purchasing, or receiving a cigarette or tobacco
6-27 product.
7-1 (b) This section does not prohibit a person from possessing
7-2 or accepting receipt of a cigarette or tobacco product from a
7-3 family member or from an employer when required in the performance
7-4 of the employee's duties.
7-5 (c) An offense under this section is a misdemeanor
7-6 punishable by a fine of not less than $25 or more than $200 or by
7-7 25 hours of community service work. If a person has been
7-8 previously convicted of an offense under this section within a
7-9 two-year period, the offense is a misdemeanor punishable by a fine
7-10 of not less than $100 or more than $500 or by 50 hours of community
7-11 service work.
7-12 (d) On the conviction of a minor for an offense under this
7-13 section, the court, in addition to assessing a fine or requiring
7-14 community service work, may require the defendant to attend a
7-15 smoking awareness course approved by the Texas Commission on
7-16 Alcohol and Drug Abuse or a similar smoking awareness course
7-17 approved by the court. The court shall require the defendant to
7-18 present evidence to the court, in the manner prescribed by the
7-19 court, of satisfactory participation in and completion of the
7-20 smoking awareness course.
7-21 (e) In addition to the jurisdiction and powers provided by
7-22 the constitution and other law, a justice court or municipal court
7-23 may exercise jurisdiction over any matter in which a court may
7-24 impose a requirement that a defendant perform community service
7-25 work or attend a smoking awareness course under the conditions
7-26 described by Subsection (c) or (d).
7-27 Sec. 161.088. NOTIFICATION OF EMPLOYEES. (a) The owner of
8-1 a store in which cigarettes or tobacco products are sold at retail
8-2 shall notify each individual employed by that person as a retail
8-3 sales clerk that state law:
8-4 (1) prohibits the sale or distribution of cigarettes
8-5 or tobacco products to any person who is younger than 18 years of
8-6 age; and
8-7 (2) requires that proof of age be demanded from a
8-8 prospective purchaser or recipient if the person has reason to
8-9 believe that the prospective purchaser or recipient is younger than
8-10 18 years of age.
8-11 (b) The notice required by Subsection (a) must be provided
8-12 before an individual begins work as a retail sales clerk. The
8-13 individual shall signify that the individual has received the
8-14 notice required by Subsection (a) by signing a form stating
8-15 substantially as follows:
8-16 "I understand that state law prohibits the sale or
8-17 distribution of cigarettes and tobacco products to
8-18 persons younger than 18 years of age, prohibits
8-19 out-of-package sales of cigarettes and smokeless
8-20 tobacco products, and requires that proof of age be
8-21 demanded from a prospective purchaser or recipient if I
8-22 have reason to believe that the prospective purchaser
8-23 or recipient is younger than 18 years of age. I
8-24 promise, as a condition of my employment, to observe
8-25 this law."
8-26 (c) Each form signed by an individual under this section
8-27 shall indicate the date of the signature. The employer shall
9-1 retain the form signed by each individual employed as a retail
9-2 sales clerk until 120 days after the individual has left the
9-3 employer's employ.
9-4 (d) A person required by Subsection (a) to notify employees
9-5 commits an offense if the person fails to provide the notice
9-6 prescribed by this section. An offense under this subsection is a
9-7 misdemeanor punishable by a fine of not less than $25 or more than
9-8 $200. If a person has been previously convicted of an offense
9-9 under this subsection within a two-year period, an offense is a
9-10 misdemeanor punishable by a fine of not less than $100 or more than
9-11 $500.
9-12 Sec. 161.089. ENFORCEMENT; UNANNOUNCED INSPECTIONS. (a)
9-13 The department shall enforce this subchapter and ensure the state's
9-14 compliance with Section 1926 of the federal Public Health Service
9-15 Act (42 U.S.C. Section 300x-26) and any implementing regulations
9-16 adopted by the United States Department of Health and Human
9-17 Services. Except as provided by Section 161.093, the department
9-18 may not adopt any rules governing the subject matter of this
9-19 subchapter.
9-20 (b) The department, acting through county sheriffs and
9-21 municipal chiefs of police, shall enforce this subchapter in a
9-22 manner that can reasonably be expected to reduce the extent to
9-23 which cigarettes and tobacco products are sold or distributed to
9-24 persons who are younger than 18 years of age and at least annually
9-25 shall conduct random, unannounced inspections at various locations
9-26 where cigarettes and tobacco products are sold or distributed to
9-27 ensure compliance with this subchapter. The department shall rely,
10-1 to the fullest extent possible, on those sheriffs or chiefs of
10-2 police or their employees to enforce this subchapter.
10-3 Sec. 161.090. INSPECTION ASSISTANCE BY PERSONS YOUNGER THAN
10-4 18 YEARS OF AGE. (a) Persons who are younger than 18 years of age
10-5 may be enlisted by the department to test compliance with this
10-6 subchapter only if the requirements of this section are met.
10-7 (b) Written parental consent must be obtained for the use of
10-8 any person younger than 18 years of age to test compliance with
10-9 this subchapter.
10-10 (c) The testing must be conducted under the direct
10-11 supervision of the department, or of a local law enforcement agency
10-12 if the agency gives written notice to the department in the manner
10-13 prescribed by the department.
10-14 (d) A local law enforcement agency that uses a person
10-15 younger than 18 years of age to test compliance in a manner other
10-16 than that prescribed by this section may be assessed an
10-17 administrative penalty by the department in an amount not to exceed
10-18 $100.
10-19 Sec. 161.091. REPORT. The Texas Commission on Alcohol and
10-20 Drug Abuse shall annually prepare for submission by the governor to
10-21 the secretary of the United States Department of Health and Human
10-22 Services the report required by Section 1926 of the federal Public
10-23 Health Service Act (42 U.S.C. Section 300x-26).
10-24 Sec. 161.092. STATEWIDE UNIFORMITY. (a) This chapter shall
10-25 be implemented in an equitable and uniform manner throughout the
10-26 state and shall be enforced to ensure the eligibility for and
10-27 receipt of any federal funds or grants that the state now receives
11-1 or may receive relating to the provisions of this subchapter.
11-2 (b) To ensure that this subchapter is equitably and
11-3 uniformly enforced, a county, municipality, political subdivision
11-4 of the state, or state agency may not adopt any ordinances, rules,
11-5 or regulations concerning the sale, distribution, advertising,
11-6 display, or promotion of cigarettes or tobacco products.
11-7 Sec. 161.093. COMPLIANCE WITH FEDERAL LAW. (a) If the
11-8 United States Department of Health and Human Services issues rules
11-9 under the federal Alcohol, Drug Abuse, and Mental Health
11-10 Administration Reorganization Act (Pub. L. 102-321), requiring
11-11 state action not provided for in Sections 161.082, 161.083, and
11-12 161.089, the department may adopt rules, only to the extent
11-13 necessary to avoid the loss of federal funding, to provide for
11-14 administrative penalties and suspension and revocation of permits
11-15 issued under Chapters 154 and 155, Tax Code, for a violation of
11-16 Section 161.082 or 161.083 by a permit holder.
11-17 (b) Rules adopted under Subsection (a) must comply with
11-18 Subsections (c)-(h).
11-19 (c) An administrative penalty for violating Section 161.082
11-20 or 161.083 may not exceed:
11-21 (1) $200 for the first violation; or
11-22 (2) $500 for a second or subsequent violation.
11-23 (d) The amount of a penalty under Subsection (c) shall be
11-24 based on:
11-25 (1) the seriousness of the violation;
11-26 (2) the history of previous violations;
11-27 (3) the person's demonstrated good faith; and
12-1 (4) any other matter that justice may require.
12-2 (e) The penalty for a third or subsequent violation of
12-3 Section 161.082 may include the suspension or revocation of a
12-4 retailer's permit issued under Chapter 154 or 155, Tax Code, except
12-5 that:
12-6 (1) a suspension may not exceed 10 days; and
12-7 (2) a permit may not be revoked until the permit has
12-8 been suspended at least once in the preceding 12-month period.
12-9 (f) The department shall provide written notice and hearing
12-10 under Chapter 2001, Government Code, before determining that a
12-11 violation has occurred.
12-12 (g) It is a defense to the imposition of administrative
12-13 penalties or the suspension or revocation of a permit under this
12-14 section for a violation of Section 161.082 that the person to whom
12-15 the cigarette or tobacco product was sold or distributed presented
12-16 at the time of purchase an apparently valid proof of age that
12-17 contained a physical description and photograph consistent with the
12-18 person's appearance, purported to establish that the person was 18
12-19 years of age or older, and was purportedly issued by a governmental
12-20 agency. The proof of age may include a driver's license issued by
12-21 this state or another state, a passport, or an identification card
12-22 issued by a state or the federal government.
12-23 (h) For the revocation or suspension of a permit for a
12-24 violation of Section 161.082 by an employee, it is a defense that
12-25 the employer acted in good faith and:
12-26 (1) conspicuously posted and reasonably maintained
12-27 appropriate signs in areas frequented by employees, such as near
13-1 time cards or in lunchrooms, reminding the employees of the
13-2 provisions of this subchapter and the penalties provided under this
13-3 subchapter;
13-4 (2) conspicuously posted and reasonably maintained
13-5 signs on or near any cash register or comparable area reminding
13-6 employees to ask for proof of age before selling cigarettes or
13-7 tobacco products if there is any doubt as to whether the person is
13-8 younger than 18 years of age;
13-9 (3) provided the employee a copy of this subchapter or
13-10 a reasonable summary of this subchapter and required the employee
13-11 to sign a statement that the copy or the summary was received and
13-12 understood and that the employee will uphold the law;
13-13 (4) provided the employee with a written list of the
13-14 types of proof of age that the state considers valid to establish
13-15 legal age under this subchapter; and
13-16 (5) if an employee has violated this subchapter more
13-17 than once:
13-18 (A) promptly terminated the employee's
13-19 employment; or
13-20 (B) promptly reassigned the employee to a
13-21 position in which the employee is prohibited from selling and does
13-22 not sell cigarettes or tobacco products for one year from the date
13-23 of the employee's last violation.
13-24 SECTION 2. Not later than October 1, 1995, the notice
13-25 required by Section 161.088, Health and Safety Code, as added by
13-26 this Act, must be given to each individual who, on the effective
13-27 date of this Act, is working as a retail sales clerk in a retail
14-1 establishment that sells cigarettes or tobacco products.
14-2 SECTION 3. The change in law made by this Act applies only
14-3 to an offense committed on or after the effective date of this Act.
14-4 For purposes of this subsection, an offense is committed before the
14-5 effective date of this Act if any element of the offense occurs
14-6 before that date. An offense committed before the effective date
14-7 of this Act is governed by the law in effect when the offense was
14-8 committed, and the former law is continued in effect for that
14-9 purpose.
14-10 SECTION 4. This Act takes effect September 1, 1995, except
14-11 that Section 161.084, Health and Safety Code, as added by this Act,
14-12 takes effect January 1, 1996.
14-13 SECTION 5. The importance of this legislation and the
14-14 crowded condition of the calendars in both houses create an
14-15 emergency and an imperative public necessity that the
14-16 constitutional rule requiring bills to be read on three several
14-17 days in each house be suspended, and this rule is hereby suspended.