By Brimer H.B. No. 2020
75R5804 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the sale or distribution of
1-3 cigarettes or tobacco products; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS
1-6 SECTION 1.01. Subtitle H, Title 2, Health and Safety Code,
1-7 is amended by adding Chapter 166 to read as follows:
1-8 CHAPTER 166. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 166.001. DEFINITIONS. In this chapter:
1-11 (1) "Cigarette" has the meaning assigned by Section
1-12 154.001, Tax Code.
1-13 (2) "Commission" means the Texas Commission on Alcohol
1-14 and Drug Abuse.
1-15 (3) "Distribute" means to sell, furnish, give, or
1-16 provide cigarettes or tobacco products, including cigarette or
1-17 tobacco product samples, to a consumer.
1-18 (4) "Proof of age" means a driver's license or
1-19 identification card of an individual that:
1-20 (A) is issued by the Department of Public
1-21 Safety;
1-22 (B) contains a physical description consistent
1-23 with the individual's appearance; and
1-24 (C) purports to establish that the identified
2-1 individual is 18 years of age or older.
2-2 (5) "Public place" means:
2-3 (A) a public street, sidewalk, or park; or
2-4 (B) any area open to the public in a publicly
2-5 owned building.
2-6 (6) "Sample" means a product distributed free to
2-7 members of the public to promote the product.
2-8 (7) "Tobacco product" has the meaning assigned by
2-9 Section 155.001, Tax Code.
2-10 (8) "Vending machine" means a mechanical, electric, or
2-11 electronic self-service device that accepts money, tokens, or any
2-12 other form of payment and automatically dispenses a product.
2-13 Sec. 166.002. REPORT. The commission shall annually prepare
2-14 for submission by the governor to the secretary of the United
2-15 States Department of Health and Human Services the report required
2-16 by 42 U.S.C. Section 300x-26.
2-17 Sec. 166.003. STATEWIDE UNIFORMITY. (a) This chapter shall
2-18 be implemented in an equitable and uniform manner throughout this
2-19 state and shall be enforced to ensure the eligibility for and
2-20 receipt of any federal funds or grants that this state may be
2-21 eligible to receive relating to this chapter.
2-22 (b) Except as provided by Subsection (c), to ensure that
2-23 this chapter is equitably and uniformly enforced, this state and
2-24 any political subdivision of this state, including a county or
2-25 municipality or any department, board, commission, or other agency
2-26 of this state or a political subdivision of this state, may not
2-27 adopt or enforce any ordinance, rule, order, or regulation,
3-1 concerning the sale, distribution, advertising, display, or
3-2 promotion of cigarettes or tobacco products.
3-3 (c) Subsection (b) does not apply to:
3-4 (1) a rule adopted in accordance with a specific
3-5 provision of this chapter; or
3-6 (2) an ordinance, rule, order, or regulation adopted
3-7 before September 1, 1997, as it existed on August 31, 1997.
3-8 Sec. 166.004. CRIMINAL RESPONSIBILITY. Except as
3-9 specifically provided by this chapter, in a criminal proceeding
3-10 under this chapter, it is not necessary to prove the intent,
3-11 knowledge, recklessness, or criminal negligence of the defendant to
3-12 establish criminal responsibility for the violation.
3-13 (Sections 166.005-166.020 reserved for expansion
3-14 SUBCHAPTER B. PROHIBITIONS AND REQUIREMENTS
3-15 Sec. 166.021. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS
3-16 TO MINORS PROHIBITED; DISTRIBUTION BY VENDING MACHINE. (a) An
3-17 individual commits an offense if the individual, as a commercial
3-18 enterprise:
3-19 (1) distributes or causes to be distributed a
3-20 cigarette or tobacco product to an individual who is younger than
3-21 18 years of age; or
3-22 (2) distributes or causes to be distributed a
3-23 cigarette or tobacco product to another person, knowing that the
3-24 person receiving the cigarette or other tobacco product intends to
3-25 deliver it to an individual who is younger than 18 years of age.
3-26 (b) A person commits an offense if:
3-27 (1) the person installs or maintains a vending machine
4-1 used to distribute cigarettes or tobacco products;
4-2 (2) the person does not designate an individual to
4-3 supervise distribution of cigarettes or tobacco products through
4-4 the vending machine; and
4-5 (3) cigarettes or tobacco products are distributed
4-6 through the vending machine to an individual who is younger than 18
4-7 years of age.
4-8 (c) An individual commits an offense if:
4-9 (1) the individual has been designated to supervise
4-10 distribution of cigarettes or tobacco products through the vending
4-11 machine; and
4-12 (2) at the time the individual was responsible for
4-13 supervision of distribution of cigarettes or tobacco products
4-14 through the vending machine, cigarettes or tobacco products are
4-15 distributed through the machine to an individual younger than 18
4-16 years of age.
4-17 (d) An individual engaged in the distribution of cigarettes
4-18 or tobacco products over the counter in a retail establishment
4-19 shall demand proof of age from a prospective purchaser or recipient
4-20 of cigarettes or tobacco products if the individual has reason to
4-21 believe that the prospective purchaser or recipient is younger than
4-22 18 years of age.
4-23 (e) It is an exception to the application of this section
4-24 that the person distributed cigarettes or tobacco products to:
4-25 (1) a family member of the person; or
4-26 (2) an employee of the person, if possession or
4-27 receipt of the cigarettes or tobacco products is required in the
5-1 performance of the employee's duties as an employee.
5-2 (f) It is a defense to prosecution under Subsection (a)(1),
5-3 (b), or (c) that the person to whom the cigarette or tobacco
5-4 product was distributed presented to the defendant apparently valid
5-5 proof of age and that the defendant reasonably relied on the proof
5-6 of age.
5-7 (g) An offense under Subsection (a), (b), or (c) is a Class
5-8 C misdemeanor.
5-9 (h) Subsection (b) of this section does not authorize a
5-10 person to install or maintain a vending machine in violation of
5-11 Section 166.023.
5-12 Sec. 166.022. WARNING NOTICE. (a) Each person who
5-13 distributes cigarettes or tobacco products in a retail
5-14 establishment or by vending machine shall post and maintain a sign
5-15 in a location that is conspicuous to all employees and customers
5-16 and that is close to the place at which the cigarettes or tobacco
5-17 products may be purchased. The sign may not be smaller than 93-1/2
5-18 square inches.
5-19 (b) The sign must state:
5-20 STATE LAW STRICTLY PROHIBITS THE SALE OF CIGARETTES OR TOBACCO
5-21 PRODUCTS TO PERSONS UNDER THE AGE OF 18. PROOF OF AGE MAY BE
5-22 REQUIRED.
5-23 (c) The commission by rule shall determine the design of the
5-24 sign.
5-25 (d) The commission on request shall provide the sign without
5-26 charge to any person who distributes cigarettes or tobacco
5-27 products. The commission may provide the sign without charge to
6-1 distributors of cigarettes or tobacco products or wholesale dealers
6-2 of cigarettes or tobacco products in this state for distribution to
6-3 persons who distribute cigarettes or tobacco products. A
6-4 distributor or wholesale dealer may not charge for distributing a
6-5 sign under this subsection.
6-6 (e) A governmental entity described by Section 166.003(b)
6-7 may not require the posting of a notice relating to the
6-8 distribution of cigarettes or tobacco products that is different
6-9 than the notice required by this section.
6-10 (f) A person commits an offense if the person fails to
6-11 display a sign as prescribed by this section. An offense under
6-12 this subsection is a Class C misdemeanor.
6-13 Sec. 166.023. LOCATION OF VENDING MACHINE. (a) A person
6-14 may not distribute cigarettes or tobacco products using a vending
6-15 machine.
6-16 (b) It is an exception to the application of this section
6-17 that the vending machine is located in an establishment to which
6-18 individuals who are younger than 18 years of age are denied access.
6-19 (c) A person commits an offense if the person violates this
6-20 section. An offense under this subsection is a Class C misdemeanor.
6-21 Sec. 166.024. DISTRIBUTION OF SAMPLES. (a) A person
6-22 commits an offense if the person distributes a sample of a
6-23 cigarette or tobacco product:
6-24 (1) to an individual who is younger than 18 years of
6-25 age; or
6-26 (2) in or on a public street, sidewalk, or park that
6-27 is within 500 feet of:
7-1 (A) a playground;
7-2 (B) a school; or
7-3 (C) any other facility if, at the time the
7-4 product sample is distributed, the facility is being used primarily
7-5 by individuals who are younger than 18 years of age.
7-6 (b) An individual engaged in the distribution of samples of
7-7 cigarettes or tobacco products in a public place shall demand proof
7-8 of age from a prospective recipient of the sample if the individual
7-9 has reason to believe that the prospective recipient is younger
7-10 than 18 years of age.
7-11 (c) It is a defense to prosecution under Subsection (a) that
7-12 the individual to whom the cigarette or tobacco sample was
7-13 distributed presented to the defendant apparently valid proof of
7-14 age and that the defendant reasonably relied on the proof of age.
7-15 (d) An offense under Subsection (a) is a Class C
7-16 misdemeanor.
7-17 Sec. 166.025. OUT-OF-PACKAGE SALES. (a) A person commits
7-18 an offense if the person sells cigarettes or a smokeless tobacco
7-19 product other than in an unopened package that originated from the
7-20 manufacturer and that bears the health warning required by federal
7-21 law.
7-22 (b) An offense under this section is a Class C misdemeanor.
7-23 Sec. 166.026. NOTIFICATION OF EMPLOYEES. (a) The owner of
7-24 a retail establishment in which cigarettes or tobacco products are
7-25 distributed shall notify each individual employed by the owner as a
7-26 retail sales clerk that state law:
7-27 (1) prohibits the distribution of cigarettes or
8-1 tobacco products to an individual who is younger than 18 years of
8-2 age; and
8-3 (2) requires that the retail sales clerk demand proof
8-4 of age from a prospective purchaser or recipient of a cigarette or
8-5 tobacco product if the retail sales clerk has reason to believe
8-6 that the prospective purchaser or recipient is younger than 18
8-7 years of age.
8-8 (b) The notice required by Subsection (a) must be provided
8-9 before the individual begins work as a retail sales clerk. The
8-10 individual shall verify that the individual has received the notice
8-11 by signing a form stating that the law has been fully explained,
8-12 that the individual understands the law, and that the individual,
8-13 as a condition of employment, agrees to comply with the law.
8-14 (c) Each verification form signed by an individual under
8-15 this section must be dated. The employer shall retain the form
8-16 signed by each individual employed as a retail sales clerk until
8-17 the 120th day after the last date the individual is employed by the
8-18 employer.
8-19 (d) A person commits an offense if the person violates
8-20 Subsection (a). An offense under this subsection is a misdemeanor
8-21 punishable by a fine of not less than $25 or more than $200. If it
8-22 is shown on the trial of an offense under this subsection that the
8-23 defendant has been previously convicted of an offense under this
8-24 subsection within the two-year period before the date of the
8-25 offense, the offense is a misdemeanor punishable by a fine of not
8-26 less than $100 or more than $500.
8-27 (Sections 166.027-166.050 reserved for expansion
9-1 SUBCHAPTER C. POSSESSION, PURCHASE, OR RECEIPT BY MINORS
9-2 Sec. 166.051. POSSESSION, PURCHASE, OR RECEIPT OF CIGARETTES
9-3 OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) An individual who
9-4 is younger than 18 years of age commits an offense if the
9-5 individual:
9-6 (1) possesses, purchases, or accepts receipt of a
9-7 cigarette or tobacco product; or
9-8 (2) falsely represents himself or herself to be 18
9-9 years of age or older by displaying proof of age that is false,
9-10 fraudulent, or not actually proof of the individual's own age to
9-11 obtain possession of, purchase, or receive a cigarette or tobacco
9-12 product.
9-13 (b) It is an exception to the application of this section
9-14 that the individual younger than 18 years of age obtained the
9-15 cigarettes or tobacco products from:
9-16 (1) a family member; or
9-17 (2) an employer of the individual, if possession or
9-18 receipt of the tobacco product is required in the performance of
9-19 the employee's duties as an employee.
9-20 (c) It is an exception to the application of this section
9-21 that the individual younger than 18 years of age is participating
9-22 in an inspection or test of compliance in accordance with
9-23 Subchapter D.
9-24 (d) Except as provided by Section 166.052, an offense under
9-25 this section is a Class C misdemeanor.
9-26 Sec. 166.052. SMOKING AWARENESS PROGRAM. On conviction of
9-27 an individual for an offense under Section 166.051, the court shall
10-1 suspend execution of sentence and shall require the defendant to
10-2 attend a smoking awareness program approved by the commission or a
10-3 similar program approved by the court. The defendant shall present
10-4 to the court, in the manner required by the court, evidence of
10-5 satisfactory completion of the smoking awareness program.
10-6 Sec. 166.053. DRIVER'S LICENSE. On conviction of an
10-7 individual for an offense under Section 166.051, the court may
10-8 order the Department of Public Safety to suspend or deny issuance
10-9 of any driver's license or permit to the individual. The order must
10-10 specify the period of the suspension or denial, which may not
10-11 exceed 180 days after the date of the order.
10-12 Sec. 166.054. EXPUNGEMENT OF CONVICTION. An individual
10-13 convicted of an offense under Section 166.051 may apply to the
10-14 court to have the conviction expunged. If the court finds that the
10-15 individual satisfactorily completed the smoking awareness program
10-16 ordered by the court, the court shall order the conviction and any
10-17 complaint, verdict, sentence, or other document relating to the
10-18 offense to be expunged from the individual's record and the
10-19 conviction may not be shown or made known for any purpose.
10-20 Sec. 166.055. JURISDICTION OF COURTS. A justice court or
10-21 municipal court may exercise jurisdiction over any matter in which
10-22 a court may impose a requirement that a defendant attend a smoking
10-23 awareness program or order the suspension or denial of a driver's
10-24 license or permit under this subchapter.
10-25 Sec. 166.056. APPLICATION OF OTHER LAW. Title 3, Family
10-26 Code, does not apply to a proceeding under this subchapter.
10-27 (Sections 166.057-166.070 reserved for expansion
11-1 SUBCHAPTER D. ENFORCEMENT; INSPECTIONS
11-2 Sec. 166.071. ENFORCEMENT. (a) The commission shall
11-3 enforce this chapter in partnership with county sheriffs and
11-4 municipal police departments and, with the cooperation of those
11-5 entities, shall ensure this state's compliance with 42 U.S.C.
11-6 Section 300x-26 and any regulations adopted by the United States
11-7 Department of Health and Human Services implementing that section.
11-8 (b) Except as provided by Section 166.022(c), the commission
11-9 may not adopt any rules governing the subject matter of this
11-10 chapter.
11-11 (c) The commission, in accordance with the General
11-12 Appropriations Act, may grant money to counties and municipalities
11-13 to be used by county sheriffs and municipal police departments to
11-14 enforce this chapter in a manner that can reasonably be expected to
11-15 reduce the extent to which cigarettes and tobacco products are
11-16 distributed to persons who are younger than 18 years of age. The
11-17 commission shall rely, to the fullest extent possible, on county
11-18 sheriffs and municipal police departments to enforce this chapter,
11-19 including Section 166.072.
11-20 Sec. 166.072. UNANNOUNCED INSPECTIONS. At least annually,
11-21 random, unannounced inspections of various locations at which
11-22 cigarettes and tobacco products are distributed shall be conducted
11-23 to ensure compliance with this chapter.
11-24 Sec. 166.073. INSPECTION ASSISTANCE BY PERSONS YOUNGER THAN
11-25 18 YEARS OF AGE. (a) An individual younger than 18 years of age
11-26 may act as a minor decoy to test compliance with this chapter only
11-27 as provided by this section. Any test of compliance using an
12-1 individual younger than 18 years of age must be conducted in a
12-2 manner that promotes fairness.
12-3 (b) An individual younger than 18 years of age may not act
12-4 as a minor decoy to test compliance with this chapter unless the
12-5 person's parent, managing conservator, or guardian has consented in
12-6 writing.
12-7 (c) At the time of a test of compliance, the individual
12-8 acting as a minor decoy:
12-9 (1) must be younger than 17 years of age;
12-10 (2) must have an appearance that would cause a
12-11 reasonably prudent seller of cigarettes or tobacco products to
12-12 request proof of age;
12-13 (3) may not carry a proof of age other than the
12-14 person's own proof of age showing the person's correct date of
12-15 birth;
12-16 (4) shall present the proof of age, if any, on
12-17 request; and
12-18 (5) shall answer truthfully any questions relating to
12-19 the person's age.
12-20 SECTION 1.02. Subchapter H, Chapter 161, Health and Safety
12-21 Code, is repealed.
12-22 ARTICLE 2. RELATED TAX CODE PROVISIONS
12-23 SECTION 2.01. (a) Section 154.111(b), Tax Code, is amended
12-24 to read as follows:
12-25 (b) An application for a permit required by this chapter
12-26 must be accompanied by a fee of:
12-27 (1) $100 for a bonded agent's permit;
13-1 (2) $100 for a distributor's permit;
13-2 (3) $50 for a wholesaler's permit; [and]
13-3 (4) $15 for each permit for a vehicle if the applicant
13-4 is also applying for a permit as a bonded agent, distributor, or
13-5 wholesaler or has received a current permit from the comptroller
13-6 [treasurer] under Sections 154.101 and 154.110; and
13-7 (5) $50 for a retailer's permit.
13-8 (b) Section 154.111(c), Tax Code, is repealed.
13-9 SECTION 2.02. Section 154.121, Tax Code, is amended to read
13-10 as follows:
13-11 Sec. 154.121. REVENUE. (a) Except as provided by
13-12 Subsection (b), revenue [Revenue] from the sale of permits to
13-13 distributors, wholesalers, and bonded agents is allocated in the
13-14 same manner as other revenue allocated by Subchapter J.
13-15 (b) Subject to Section 154.122, revenue from the sale of
13-16 retailer's permits shall be deposited to the general revenue fund
13-17 and may be appropriated only as provided by this section. The
13-18 money may be appropriated only to the Texas Commission on Alcohol
13-19 and Drug Abuse for the Texas D.A.R.E. Institute for the institute's
13-20 programs relating to tobacco enforcement projects and education and
13-21 awareness concerning the use of drugs, alcohol, and tobacco.
13-22 (c) In this section, "Texas D.A.R.E. Institute" means the
13-23 Texas Drug Abuse Resistance Education Institute that is a grant
13-24 program of Southwest Texas State University.
13-25 SECTION 2.03. Subchapter D, Chapter 154, Tax Code, is
13-26 amended by adding Section 154.122 to read as follows:
13-27 Sec. 154.122. ENFORCEMENT FUNDS: RETAILER'S PERMIT REVENUE.
14-1 The legislature may appropriate money from the revenue received
14-2 from permits issued to retailers under Section 154.111(b)(5) to the
14-3 comptroller for the administration of the duties of the comptroller
14-4 under this chapter. Amounts appropriated under this section shall
14-5 be taken from revenue received from the permits before the revenue
14-6 is allocated under Section 154.121(b) to the account specified by
14-7 that section.
14-8 SECTION 2.04. Section 154.504, Tax Code, is amended to read
14-9 as follows:
14-10 Sec. 154.504. POSSESSION OF QUANTITIES LESS THAN INDIVIDUAL
14-11 PACKAGE. A person commits an offense if the person sells
14-12 cigarettes in quantities less than an individual package containing
14-13 at least 20 cigarettes.
14-14 SECTION 2.05. (a) Section 155.049(b), Tax Code, is amended
14-15 to read as follows:
14-16 (b) An application for a permit required by this chapter
14-17 must be accompanied by a fee of:
14-18 (1) $100 for a bonded agent's permit;
14-19 (2) $100 for a distributor's permit;
14-20 (3) $50 for a wholesaler's permit; [and]
14-21 (4) $15 for each permit for a vehicle if the applicant
14-22 is also applying for a permit as a bonded agent, distributor, or
14-23 wholesaler or has received a current permit from the comptroller
14-24 [treasurer] under Sections 155.041 and 155.048; and
14-25 (5) $50 for a retailer's permit.
14-26 (b) Section 155.049(c), Tax Code, is repealed.
14-27 SECTION 2.06. Section 155.058, Tax Code, is amended to read
15-1 as follows:
15-2 Sec. 155.058. REVENUE. (a) Except as provided by
15-3 Subsection (b), revenue [Revenue] from the sale of permits to
15-4 distributors, wholesalers, and bonded agents is allocated in the
15-5 same manner that other revenue is allocated by Subchapter H.
15-6 (b) Subject to Section 155.0585, revenue from the sale of
15-7 permits issued to retailers shall be deposited in the general
15-8 revenue fund.
15-9 SECTION 2.07. Subchapter C, Chapter 155, Tax Code, is
15-10 amended by adding Section 155.0585 to read as follows:
15-11 Sec. 155.0585. ENFORCEMENT FUNDS: RETAILER'S PERMIT
15-12 REVENUE. The legislature may appropriate money from the revenue
15-13 received from permits issued to retailers under Section
15-14 155.049(b)(5) to the comptroller for enforcing this chapter on
15-15 retail premises. Amounts appropriated under this section shall be
15-16 taken from revenue received from the permits before the revenue is
15-17 allocated under Section 155.058 to the account specified by that
15-18 section.
15-19 SECTION 2.08. Chapter 154, Tax Code, is amended by adding
15-20 Subchapter K to read as follows:
15-21 SUBCHAPTER K. ENFORCEMENT OF CERTAIN RESTRICTIONS ON
15-22 DISTRIBUTION OF CIGARETTES
15-23 Sec. 154.701. ADMINISTRATIVE PENALTY; LICENSE SUSPENSION OR
15-24 REVOCATION. (a) The comptroller may assess an administrative
15-25 penalty against a permit holder for a violation of Section 166.021
15-26 or 166.022, Health and Safety Code, by the permit holder or by an
15-27 employee of the permit holder.
16-1 (b) Except as provided by Subsection (d), the administrative
16-2 penalty may not exceed $100 for each violation.
16-3 (c) If it is found that the permit holder or an employee of
16-4 the permit holder had violated Section 166.021 or 166.022, Health
16-5 and Safety Code, at least twice during a 24-month period, the
16-6 administrative penalty for the second or subsequent violation may
16-7 not exceed $250 for each violation.
16-8 (d) If it is found that the permit holder or an employee of
16-9 the permit holder had violated Section 166.021, Health and Safety
16-10 Code, at least three times during a 24-month period, the
16-11 comptroller may suspend the permit for not longer than seven days.
16-12 (e) The comptroller may revoke the permit if it is found
16-13 that:
16-14 (1) the permit holder or an employee of the permit
16-15 holder had violated Section 166.021, Health and Safety Code, at
16-16 least three times during a 24-month period; and
16-17 (2) within the period beginning one year before the
16-18 date on which the revocation would be imposed, the permit has been
16-19 suspended under Subsection (d).
16-20 (f) Any defense that may be raised in prosecution of an
16-21 offense under Section 166.021 or 166.022, Health and Safety Code,
16-22 may be raised as a defense to the imposition of an administrative
16-23 penalty or suspension or revocation of a permit under this section.
16-24 (g) For the suspension or revocation of a permit for a
16-25 violation of Section 166.021, Health and Safety Code, by an
16-26 employee of the permit holder, it is a defense that the permit
16-27 holder acted in good faith and:
17-1 (1) conspicuously posted and reasonably maintained the
17-2 notice required by Section 166.022, Health and Safety Code;
17-3 (2) received from the employee the verification form
17-4 required by Section 166.026, Health and Safety Code; and
17-5 (3) if the employee had violated Chapter 166, Health
17-6 and Safety Code, on more than one occasion known to the permit
17-7 holder, the permit holder promptly:
17-8 (A) terminated the employee's employment; or
17-9 (B) reassigned the employee, for a period of at
17-10 least one year after the date of the employee's last violation
17-11 known to the permit holder, to a position in which the employee:
17-12 (i) is prohibited from distributing
17-13 cigarettes and tobacco products; and
17-14 (ii) does not distribute cigarettes or
17-15 tobacco products.
17-16 (h) All proceedings for assessment of an administrative
17-17 penalty or suspension or revocation of a permit under this
17-18 subchapter are subject to Chapter 2001, Government Code.
17-19 (i) A permit holder may seek judicial review of an action of
17-20 the comptroller suspending or revoking a permit under this section
17-21 as provided by Subchapter G, Chapter 2001, Government Code.
17-22 Enforcement of the suspension or revocation is stayed pending
17-23 completion of the judicial review.
17-24 (j) The comptroller by rule shall establish a procedure for
17-25 assessment of an administrative penalty under this section.
17-26 (k) The comptroller and the Texas Commission on Alcohol and
17-27 Drug Abuse shall enter into a memorandum of understanding under
18-1 which the commission investigates matters relating to compliance
18-2 with Sections 166.021 and 166.022, Health and Safety Code, and
18-3 provides the comptroller with recommendations for action under this
18-4 section. The commission may provide additional support to the
18-5 comptroller to enforce Sections 166.021 and 166.022, Health and
18-6 Safety Code, in accordance with the memorandum of understanding.
18-7 SECTION 2.09. Chapter 155, Tax Code, is amended by adding
18-8 Subchapter I to read as follows:
18-9 SUBCHAPTER I. ENFORCEMENT OF CERTAIN RESTRICTIONS ON
18-10 DISTRIBUTION OF TOBACCO PRODUCTS
18-11 Sec. 155.261. ADMINISTRATIVE PENALTY; LICENSE SUSPENSION OR
18-12 REVOCATION. (a) The comptroller may assess an administrative
18-13 penalty against a permit holder for a violation of Section 166.021
18-14 or 166.022, Health and Safety Code, by the permit holder or by an
18-15 employee of the permit holder.
18-16 (b) Except as provided by Subsection (d), the administrative
18-17 penalty may not exceed $100 for each violation.
18-18 (c) If it is found that the permit holder or an employee of
18-19 the permit holder had violated Section 166.021 or 166.022, Health
18-20 and Safety Code, at least twice during a 24-month period, the
18-21 administrative penalty for the second or subsequent violation may
18-22 not exceed $250 for each violation.
18-23 (d) If it is found that the permit holder or an employee of
18-24 the permit holder had violated Section 166.021, Health and Safety
18-25 Code, at least three times during a 24-month period, the
18-26 comptroller may suspend the permit for not longer than seven days.
18-27 (e) The comptroller may revoke the permit if it is found
19-1 that:
19-2 (1) the permit holder or an employee of the permit
19-3 holder had violated Section 166.021, Health and Safety Code, at
19-4 least three times during a 24-month period; and
19-5 (2) within the period beginning one year before the
19-6 date on which the revocation would be imposed, the permit has been
19-7 suspended under Subsection (d).
19-8 (f) Any defense that may be raised in prosecution of an
19-9 offense under Section 166.021 or 166.022, Health and Safety Code,
19-10 may be raised as a defense to the imposition of an administrative
19-11 penalty or suspension or revocation of a permit under this section.
19-12 (g) For the suspension or revocation of a permit for a
19-13 violation of Section 166.021, Health and Safety Code, by an
19-14 employee of the permit holder, it is a defense that the permit
19-15 holder acted in good faith and:
19-16 (1) conspicuously posted and reasonably maintained the
19-17 notice required by Section 166.022, Health and Safety Code;
19-18 (2) received from the employee the verification form
19-19 required by Section 166.026, Health and Safety Code; and
19-20 (3) if the employee had violated Chapter 166, Health
19-21 and Safety Code, on more than one occasion known to the permit
19-22 holder, the permit holder promptly:
19-23 (A) terminated the employee's employment; or
19-24 (B) reassigned the employee, for a period of at
19-25 least one year after the date of the employee's last violation
19-26 known to the permit holder, to a position in which the employee:
19-27 (i) is prohibited from distributing
20-1 cigarettes and tobacco products; and
20-2 (ii) does not distribute cigarettes or
20-3 tobacco products.
20-4 (h) All proceedings for assessment of an administrative
20-5 penalty or suspension or revocation of a permit under this
20-6 subchapter are subject to Chapter 2001, Government Code.
20-7 (i) A permit holder may seek judicial review of an action of
20-8 the comptroller suspending or revoking a permit under this section
20-9 as provided by Subchapter G, Chapter 2001, Government Code.
20-10 Enforcement of the suspension or revocation is stayed pending
20-11 completion of the judicial review.
20-12 (j) The comptroller by rule shall establish a procedure for
20-13 assessment of an administrative penalty under this section.
20-14 (k) The comptroller and the Texas Commission on Alcohol and
20-15 Drug Abuse shall enter into a memorandum of understanding under
20-16 which the commission investigates matters relating to compliance
20-17 with Sections 166.021 and 166.022, Health and Safety Code, and
20-18 provides the comptroller with recommendations for action under this
20-19 section. The commission may provide additional support to the
20-20 comptroller to enforce Sections 166.021 and 166.022, Health and
20-21 Safety Code, in accordance with the memorandum of understanding.
20-22 ARTICLE 3. EFFECTIVE DATE; TRANSITION
20-23 SECTION 3.01. Not later than October 1, 1997, the notice
20-24 required by Section 166.026, Health and Safety Code, must be
20-25 provided to each individual who is working as a retail sales clerk
20-26 in a retail establishment that distributes cigarettes or tobacco
20-27 products on that date.
21-1 SECTION 3.02. (a) The change in law made by this Act
21-2 applies only to the punishment for an offense committed on or after
21-3 September 1, 1997. For purposes of this section, an offense is
21-4 committed before September 1, 1997, if any element of the offense
21-5 occurs before that date.
21-6 (b) An offense committed before September 1, 1997, is
21-7 covered by the law in effect when the offense was committed, and
21-8 the former law is continued in effect for this purpose.
21-9 SECTION 3.03. An administrative penalty may be assessed
21-10 under Subchapter H, Chapter 154, Tax Code, or Subchapter I, Chapter
21-11 155, Tax Code, only for conduct that occurred on or after September
21-12 1, 1997.
21-13 SECTION 3.04. (a) Except as provided by Subsection (b) of
21-14 this section, this Act takes effect September 1, 1997.
21-15 (b) Section 166.073, Health and Safety Code, as added by
21-16 this Act, takes effect January 1, 1998.
21-17 SECTION 3.05. The importance of this legislation and the
21-18 crowded condition of the calendars in both houses create an
21-19 emergency and an imperative public necessity that the
21-20 constitutional rule requiring bills to be read on three several
21-21 days in each house be suspended, and this rule is hereby suspended.