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.