By Alvarado                                      H.B. No. 493

      75R2667 DLF-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the regulation of the sale or distribution of tobacco

 1-3     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 by  adding Sections 161.083, 161.084, and 161.085

 1-7     to read as follows:

 1-8           Sec. 161.083.  VENDING MACHINES PROHIBITED.  (a)  Except as

 1-9     provided by Subsection (b), a person may not  install or maintain a

1-10     vending machine containing cigarettes or tobacco products.

1-11           (b)  Subsection (a) does not apply to a vending machine

1-12     located in a facility or business that is not open to persons

1-13     younger than 18 years of age.

1-14           (c)  The comptroller or a peace officer may, with or without

1-15     a warrant, seize, seal, or disable a vending machine installed or

1-16     maintained in violation of this section.  Property seized under

1-17     this subsection must be seized in accordance with, and is subject

1-18     to forfeiture to the state in accordance with, Subchapter H,

1-19     Chapter 154, Tax Code, and Subchapter E, Chapter 155, Tax Code.

1-20           (d)  A person commits an offense if the person violates

1-21     Subsection (a).  An offense under this subsection is a Class C

1-22     misdemeanor.

1-23           Sec. 161.084.  DISTRIBUTION OF FREE SAMPLES OF CIGARETTES OR

1-24     TOBACCO PRODUCTS.  (a)  A person may not distribute a free  sample

 2-1     of a cigarette or tobacco product:

 2-2                 (1)  at a facility owned or operated by this state, an

 2-3     agency of this state,  or a municipality or other political

 2-4     subdivision of this state; or

 2-5                 (2)  closer than 1000 feet from:

 2-6                       (A)  an institution of higher education;

 2-7                       (B)  a playground;

 2-8                       (C)  a public library; or

 2-9                       (D)  a school.

2-10           (b)  The measurement of the distance between the place of

2-11     distribution and a facility listed in Subsection (a)(2) is from the

2-12     nearest property line of the facility to the point on a street or

2-13     highway closest to the place of distribution, along street lines

2-14     and in direct lines across intersections.

2-15           (c)  A person who violates Subsection (a) commits an offense.

2-16     An offense under this subsection is a Class C misdemeanor.

2-17           (d)  In this section:

2-18                 (1)  "Institution of higher education" has the meaning

2-19     assigned by Section 61.003, Education Code, and includes a "private

2-20     or independent institution of higher education" as defined by

2-21     Section 61.003.

2-22                 (2)  "Playground" means any outdoor facility that is

2-23     not on the premises of a school and that:

2-24                       (A)  is intended for recreation;

2-25                       (B)  is open to the public; and

2-26                       (C)  contains at least one apparatus intended for

2-27     the recreation of children, such as slides, swing sets, and

 3-1     teeterboards.

 3-2                 (3)  "Public library" means a library that is operated

 3-3     by this state, an agency of this state, or a municipality or other

 3-4     political subdivision of this state, that is freely open to all

 3-5     persons under identical conditions, and that receives its financial

 3-6     support in whole or part from public funds.

 3-7                 (4)  "School" means a private or public elementary or

 3-8     secondary school.

 3-9           Sec. 161.085.  PREEMPTION OF LOCAL LAW.  This subchapter does

3-10     not preempt a local regulation on the sale, distribution, or use of

3-11     cigarettes or tobacco products or affect the authority of a

3-12     political subdivision to adopt or enforce an ordinance or

3-13     requirement relating to the sale, distribution, or use of

3-14     cigarettes or tobacco products if the regulation, ordinance, or

3-15     requirement:

3-16                 (1)  is compatible with and equal to or more stringent

3-17     than a requirement prescribed by this subchapter; or

3-18                 (2)  relates to an issue that is not specifically

3-19     addressed by this subchapter or Chapter 154 or 155, Tax Code.

3-20           SECTION 2.  The heading of Subchapter H, Chapter 161, Health

3-21     and Safety Code, is amended to read as follows:

3-22         SUBCHAPTER H.  DISTRIBUTION [SALE] OF CIGARETTES OR TOBACCO

3-23                            PRODUCTS [TO MINORS]

3-24           SECTION 3.  This Act takes effect September 1, 1997.

3-25           SECTION 4.  The change in law made by this Act applies only

3-26     to an offense committed on or after the effective date of this Act.

3-27     For purposes of this subsection, an offense is committed before the

 4-1     effective date of this Act if any element of the offense occurs

 4-2     before that date.  An offense committed before the effective date

 4-3     of this Act is governed by the law in effect when the offense was

 4-4     committed, and the former law is continued in effect for that

 4-5     purpose.

 4-6           SECTION 5.  The importance of this legislation and the

 4-7     crowded condition of the calendars in both houses create an

 4-8     emergency and an imperative public necessity that the

 4-9     constitutional rule requiring bills to be read on three several

4-10     days in each house be suspended, and this rule is hereby suspended.