By:  Zaffirini, et al.                                  S.B. No. 55

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the regulation of the sale, distribution, and use of

 1-2     tobacco products; providing penalties.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4         ARTICLE 1.  DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS

 1-5           SECTION 1.01.  Subchapter H, Chapter 161, Health and Safety

 1-6     Code, is amended to read as follows:

 1-7         SUBCHAPTER H.  DISTRIBUTION [SALE] OF CIGARETTES OR TOBACCO

 1-8                            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)  "Permit holder" has the meaning assigned by

1-13     Section 154.001 or 155.001, Tax Code, as applicable.

1-14                 (3)  "Retail sale" means a transfer of possession from

1-15     a retailer to a consumer in connection with a purchase, sale, or

1-16     exchange for value of cigarettes or tobacco products.

1-17                 (4)  "Retailer" has the meaning assigned by Section

1-18     154.001 or 155.001, Tax Code, as applicable.

1-19                 (5)  "Tobacco product" has the meaning assigned by

1-20     Section 155.001, Tax Code.

1-21                 (6)  "Wholesaler" has the meaning assigned by Section

1-22     154.001 or 155.001, Tax Code, as applicable.

1-23           Sec. 161.082.  SALE OF CIGARETTES OR TOBACCO PRODUCTS TO

 2-1     PERSONS YOUNGER THAN 18 YEARS OF AGE [MINORS] PROHIBITED; PROOF OF

 2-2     AGE REQUIRED.  (a)  A person commits an offense if the person, with

 2-3     criminal negligence [as a commercial enterprise]:

 2-4                 (1)  sells, gives, or causes to be sold or given a

 2-5     cigarette or [other] tobacco product to someone who [the person

 2-6     knows] is younger than 18 years of age; or

 2-7                 (2)  sells, gives, or causes to be sold or given a

 2-8     cigarette or [other] tobacco product to another person who[,

 2-9     knowing that the person receiving the cigarette or other tobacco

2-10     product] intends to deliver it to someone who is younger than 18

2-11     years of age.

2-12           (b)  A retailer commits an offense if:

2-13                 (1)  an agent or employee of the retailer commits an

2-14     offense under Subsection (a); and

2-15                 (2)  the retailer, with criminal negligence, failed to

2-16     prevent the offense through adequate supervision and training of

2-17     the agent or employee.

2-18           (c)  An offense under this section is a Class C misdemeanor.

2-19           (d) [(c)]  It is a defense to prosecution under Subsection

2-20     (a)(1) [this section] that the person to whom the cigarette or

2-21     [other] tobacco product was sold or given presented to the

2-22     defendant [an] apparently valid proof of [Texas driver's license or

2-23     an] identification.

2-24           (e)  A proof of identification satisfies the requirements of

2-25     Subsection (d) if it contains [card, issued by the Department of

 3-1     Public Safety and containing] a physical description and photograph

 3-2     consistent with the person's appearance, purports [that purported]

 3-3     to establish that the person is [was] 18 years of age or older, and

 3-4     was issued by a governmental agency.  The proof of identification

 3-5     may include a driver's license issued by this state or another

 3-6     state, a passport, or an identification card issued by a state or

 3-7     the federal government.

 3-8           (f)  It is not a defense to prosecution under this section

 3-9     that the retailer complied with the provisions of Section 161.085.

3-10           Sec. 161.083.  SALE OF CIGARETTES OR TOBACCO PRODUCTS TO

3-11     PERSONS YOUNGER THAN 27 YEARS OF AGE.  (a)  A person may not sell,

3-12     give, or cause to be sold or given a cigarette or tobacco product

3-13     to someone who is younger than 27 years of age unless the person to

3-14     whom the cigarette or tobacco product was sold or given presents an

3-15     apparently valid proof of identification.

3-16           (b)  A retailer shall adequately supervise and train the

3-17     retailer's agents and employees to prevent a violation of

3-18     Subsection (a).

3-19           (c)  A proof of identification described by Section

3-20     161.082(e) satisfies the requirements of Subsection (a).

3-21           (d)  A person commits an offense if the person violates this

3-22     section.  A fine for an offense under this section may be up to

3-23     $100 per violation.

3-24           Sec. 161.084 [161.082].  Warning Notice.  (a)  Each person

3-25     who sells cigarettes or tobacco products at retail or by vending

 4-1     machine shall post a sign in a location that is conspicuous to all

 4-2     employees and customers and that is close to the place at which the

 4-3     cigarettes or tobacco products may be purchased.

 4-4           (b)  The sign must include the statement:

 4-5                 PURCHASING OR ATTEMPTING TO PURCHASE [SALE

 4-6                 OR PROVISION OF] TOBACCO PRODUCTS BY [TO] A

 4-7                 MINOR UNDER 18 YEARS OF AGE IS PROHIBITED

 4-8                 BY LAW.  UPON CONVICTION, A CLASS C

 4-9                 MISDEMEANOR, INCLUDING A [MAXIMUM] FINE OF

4-10                 UP TO $500 [$200] MAY BE IMPOSED.

4-11           (c)  The comptroller [board] by rule shall determine the

4-12     design and size of the sign.

4-13           (d)  The comptroller [department] on request shall provide

4-14     the sign without charge to any person who sells cigarettes or

4-15     tobacco [cigarette] products.  The comptroller [department] may

4-16     provide the sign without charge to [cigarette] distributors of

4-17     cigarettes or tobacco products or wholesale dealers of cigarettes

4-18     or tobacco [cigarette] products in this state for distribution to

4-19     persons who sell cigarettes or tobacco [cigarette] products.  A

4-20     distributor or wholesale dealer may not charge for distributing a

4-21     sign under this subsection.

4-22           (e)  A person commits an offense if the person intentionally

4-23     fails to display a sign as prescribed by this section.  An offense

4-24     under this subsection is a Class C misdemeanor.

4-25           Sec. 161.085.  NOTIFICATION OF EMPLOYEES AND AGENTS.

 5-1     (a)  Each permit holder shall notify each individual employed by

 5-2     that permit holder who is to be engaged in retail sales of

 5-3     cigarettes or tobacco products that state law:

 5-4                 (1)  prohibits the sale or distribution of cigarettes

 5-5     or tobacco products to any person who is younger than 18 years of

 5-6     age as provided by Section 161.082 and that a violation of this

 5-7     provision is a Class C misdemeanor;

 5-8                 (2)  prohibits the sale or distribution of cigarettes

 5-9     or tobacco products to any person who is younger than 27 years of

5-10     age unless the person to whom the cigarette or tobacco product is

5-11     sold or given presents an apparently valid proof of identification

5-12     as provided by Section 161.083 and that a violation of this

5-13     provision may result in a fine of up to $100 per violation; and

5-14                 (3)  requires each person who sells cigarettes or

5-15     tobacco products at retail or by vending machine to post a warning

5-16     notice; requires each employee to ensure that the appropriate sign

5-17     is always properly displayed as provided by Section 161.084, while

5-18     that employee is exercising the employee's duties; and provides

5-19     that an intentional violation of this provision is a Class C

5-20     misdemeanor.

5-21           (b)  The notice required by Subsection (a) must be provided

5-22     within 72 hours of the date an individual begins to engage in

5-23     retail sales of tobacco products.  The individual shall signify

5-24     that the individual has received the notice required by Subsection

5-25     (a) by signing a form stating that the law has been fully

 6-1     explained, that the individual understands the law, and that the

 6-2     individual, as a condition of employment, agrees to comply with the

 6-3     law.

 6-4           (c)  Each form signed by an individual under this section

 6-5     shall indicate the date of the signature and the current address

 6-6     and social security number of the individual.  The permit holder

 6-7     shall retain the form signed by each individual employed as a

 6-8     retail sales clerk until 120 days after the individual has left the

 6-9     employer's employ.

6-10           (d)  A permit holder required by this section to notify

6-11     employees commits an offense if the permit holder fails, on demand

6-12     of an officer, to provide the notice prescribed by this section.

6-13     An offense under this section is a Class C misdemeanor.

6-14           (e)  It is a defense to Subsection (d) to show proof that the

6-15     employee did complete, sign, and date the notice required by

6-16     Subsection (a).  Proof must be shown to the comptroller or an agent

6-17     of the comptroller within 72 hours of the offense.

6-18           Sec. 161.086.  VENDOR ASSISTED SALES REQUIRED; VENDING

6-19     MACHINES.  (a)  Except as provided by Subsection (b), a retailer or

6-20     other person may not:

6-21                 (1)  offer cigarettes or tobacco products for sale in a

6-22     manner that permits a customer direct access to the cigarettes or

6-23     tobacco products; or

6-24                 (2)  install or maintain a vending machine containing

6-25     cigarettes or tobacco products.

 7-1           (b)  Subsection (a) does not apply to a facility or business

 7-2     that is not open to persons younger than 18 years of age at any

 7-3     time.

 7-4           (c)  The comptroller or a peace officer may, with or without

 7-5     a warrant, seize, seal, or disable a vending machine installed or

 7-6     maintained in violation of this section.  Property seized under

 7-7     this subsection must be seized in accordance with, and is subject

 7-8     to forfeiture to the state in accordance with, Subchapter H,

 7-9     Chapter 154, Tax Code, and Subchapter E, Chapter 155, Tax Code.

7-10           (d)  A person commits an offense if the person violates

7-11     Subsection (a).  An offense under this subsection is a Class C

7-12     misdemeanor.

7-13           Sec. 161.087.  DISTRIBUTION OF CIGARETTES OR TOBACCO

7-14     PRODUCTS.  (a)  A person may not distribute to persons younger than

7-15     18 years of age:

7-16                 (1)  a free sample of a cigarette or tobacco product;

7-17     or

7-18                 (2)  a coupon or other item that the recipient may use

7-19     to receive a free or discounted cigarette or tobacco product or a

7-20     sample cigarette or tobacco product.

7-21           (b)  Except as provided by Subsection (c), a permit holder

7-22     may not accept or redeem, offer to accept or redeem, or hire a

7-23     person to accept or redeem a coupon or other item that the

7-24     recipient may use to receive a free or discounted cigarette or

7-25     tobacco product or a sample cigarette or tobacco product if such

 8-1     recipient is younger than 18 years of age.  No coupons or other

 8-2     items that the recipient may use to receive a free or discounted

 8-3     cigarette or tobacco product or a sample cigarette or tobacco

 8-4     product shall be redeemable through mail or courier delivery.

 8-5           (c)  Subsections (a)(2) and (b) do not apply to a transaction

 8-6     between permit holders unless the transaction is a retail sale.

 8-7           (d)  A person commits an offense if the person violates this

 8-8     section.  An offense under this subsection is a Class C

 8-9     misdemeanor.

8-10           Sec. 161.088.  ENFORCEMENT; UNANNOUNCED INSPECTIONS.

8-11     (a)  The comptroller shall enforce this subchapter in partnership

8-12     with county sheriffs and municipal chiefs of police and with their

8-13     cooperation and shall ensure the state's compliance with Section

8-14     1926 of the federal Public Health Service Act (42 U.S.C. Section

8-15     300x-26) and any implementing regulations adopted by the United

8-16     States Department of Health and Human Services.  The comptroller

8-17     may not adopt any rules governing the subject matter of this

8-18     subchapter or Subchapter K, N, or O.

8-19           (b)  The comptroller may make block grants to counties and

8-20     municipalities to be used by county sheriffs and municipal chiefs

8-21     of police to enforce this subchapter in a manner that can

8-22     reasonably be expected to reduce the extent to which cigarettes and

8-23     tobacco products are sold or distributed to persons who are younger

8-24     than 18 years of age.  At least annually, random unannounced

8-25     inspections shall be conducted at various locations where

 9-1     cigarettes and tobacco products are sold or distributed to ensure

 9-2     compliance with this subchapter.  The comptroller shall rely, to

 9-3     the fullest extent possible, on sheriffs or chiefs of police or

 9-4     their employees to enforce this subchapter.

 9-5           (c)  The use of a person younger than 18 years of age to act

 9-6     as a minor decoy to test compliance with this subchapter shall be

 9-7     conducted in such a fashion that promotes fairness.  A person may

 9-8     be enlisted by the comptroller to act as a minor decoy, only if the

 9-9     following requirements are met:

9-10                 (1)  written parental consent is obtained for the use

9-11     of a person younger than 18 years of age to act as a minor decoy to

9-12     test compliance with this subchapter;

9-13                 (2)  at the time of the inspection, the minor decoy is

9-14     younger than 17 years of age;

9-15                 (3)  the minor decoy has an appearance that would cause

9-16     a reasonably prudent seller of tobacco products to request

9-17     identification and proof of age;

9-18                 (4)  the minor decoy carries either the minor's own

9-19     identification showing the minor's correct date of birth or carries

9-20     no identification and a minor decoy who carries identification

9-21     presents it on request to any seller of tobacco products; and

9-22                 (5)  the minor decoy answers truthfully any questions

9-23     about the minor's age.

9-24           (d)  The comptroller shall annually prepare for submission by

9-25     the governor to the secretary of the United States Department of

 10-1    Health and Human Services the report required by Section 1926 of

 10-2    the federal Public Health Service Act (42 U.S.C. Section 300x-26).

 10-3          Sec. 161.089.  PREEMPTION OF LOCAL LAW.  This subchapter does

 10-4    not preempt a local regulation of the sale, distribution, or use of

 10-5    cigarettes or tobacco products or affect the authority of a

 10-6    political subdivision to adopt or enforce an ordinance or

 10-7    requirement relating to the sale, distribution, or use of

 10-8    cigarettes or tobacco products if the regulation, ordinance, or

 10-9    requirement:

10-10                (1)  is compatible with and equal to or more stringent

10-11    than a requirement prescribed by this subchapter; or

10-12                (2)  relates to an issue that is not specifically

10-13    addressed by this subchapter or Chapter 154 or 155, Tax Code.

10-14          Sec. 161.090.  REPORTS OF VIOLATION.  A local or state law

10-15    enforcement agency or other governmental unit shall notify the

10-16    comptroller, on the 10th day of every month, or the first working

10-17    day thereafter, of any violation of this subchapter that occurred

10-18    in the preceding month that the agency or unit detects,

10-19    investigates, or prosecutes.

10-20         ARTICLE 2.  ADVERTISING OF CIGARETTES OR TOBACCO PRODUCTS

10-21          SECTION 2.01.  Subchapter K, Chapter 161, Health and Safety

10-22    Code, is amended to read as follows:

10-23        SUBCHAPTER K.  PROHIBITION OF CERTAIN CIGARETTE OR TOBACCO

10-24                            PRODUCT ADVERTISING

10-25          Sec. 161.121.  DEFINITIONS.  In this subchapter:

 11-1                (1)  "Church" means a facility that is owned by a

 11-2    religious organization and that is used primarily for religious

 11-3    services.

 11-4                (2)  "Cigarette" has the meaning assigned by Section

 11-5    154.001, Tax Code.

 11-6                (3)  "School" means a private or public elementary or

 11-7    secondary school.

 11-8                (4) [(3)]  "Sign" means an outdoor medium, including a

 11-9    structure, display, light device, figure, painting, drawing,

11-10    message, plaque, poster, or billboard, that is:

11-11                      (A)  used to advertise or inform; and

11-12                      (B)  visible from the main-traveled way of a

11-13    street or highway.

11-14                (5) [(4)]  "Tobacco product" has the meaning assigned

11-15    by Section 155.001, Tax Code.

11-16          Sec. 161.122.  ADVERTISING.  (a)  The comptroller shall

11-17    collect and the advertiser shall remit a fee that shall be 10

11-18    percent of the gross purchase price of any outdoor advertising of

11-19    cigarettes and tobacco products in Texas.

11-20          (b)  This fee shall be put into an account in the general

11-21    revenue fund.  Money collected by this fund shall be appropriated

11-22    for enforcement and an education advertising campaign.

11-23          Sec. 161.123.  PROHIBITION RELATING TO CERTAIN SIGNS;

11-24    EXCEPTIONS.  (a)  A sign containing an advertisement for cigarettes

11-25    or tobacco products may not be located closer than 1,000 [500] feet

 12-1    to a church or school.

 12-2          (b)  The measurement of the distance between the sign

 12-3    containing an advertisement for cigarettes or tobacco products and

 12-4    an institution listed in Subsection (a) is from the nearest

 12-5    property line of the institution to a point on a street or highway

 12-6    closest to the sign, along street lines and in direct lines across

 12-7    intersections.

 12-8          (c)  This section does not apply to[:]

 12-9                [(1)]  a sign located on or in a facility owned or

12-10    leased by a professional sports franchise or in a facility where

12-11    professional sports events are held at least 10 times during a

12-12    12-month period[; or]

12-13                [(2)  a contract for a cigarette or other tobacco

12-14    product advertisement entered into before August 26, 1991].

12-15          (d)  In Subsection (c) [(c)(1)], a "facility" includes a

12-16    stadium, arena, or events center and any land or property owned or

12-17    leased by the professional sports franchise that is connected to or

12-18    immediately contiguous to the stadium, arena, or events center.

12-19                       ARTICLE 3.  YOUTH TOBACCO USE

12-20          SECTION 3.01.  Chapter 161, Health and Safety Code, is

12-21    amended by adding Subchapters N and O to read as follows:

12-22                   SUBCHAPTER N.  TOBACCO USE BY MINORS

12-23          Sec. 161.251.  DEFINITIONS.  In this subchapter:

12-24                (1)  "Cigarette" has the meaning assigned by Section

12-25    154.001, Tax Code.

 13-1                (2)  "Tobacco product" has the meaning assigned by

 13-2    Section 155.001, Tax Code.

 13-3          Sec. 161.252.  POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT

 13-4    OF CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED.  (a)  An

 13-5    individual who is younger than 18 years of age commits an offense

 13-6    if the individual:

 13-7                (1)  possesses, purchases, consumes, or accepts a

 13-8    cigarette or tobacco product; or

 13-9                (2)  falsely represents himself or herself to be 18

13-10    years of age or older by displaying proof of age that is false,

13-11    fraudulent, or not actually proof of the individual's own age in

13-12    order to obtain possession of, purchase, or receive a cigarette or

13-13    tobacco product.

13-14          (b)  It is an exception to the application of this section

13-15    that the individual younger than 18 years of age possessed the

13-16    cigarette or tobacco product in the presence of:

13-17                (1)  an adult parent, a guardian, or a spouse of the

13-18    individual; or

13-19                (2)  an employer of the individual, if possession or

13-20    receipt of the tobacco product is required in the performance of

13-21    the employee's duties as an employee.

13-22          (c)  It is an exception to the application of this section

13-23    that the individual younger than 18 years of age is participating

13-24    in an inspection or test of compliance in accordance with Section

13-25    161.088.

 14-1          (d)  An offense under this section is a Class C misdemeanor.

 14-2          Sec. 161.253.  TOBACCO AWARENESS PROGRAM.  (a)  On conviction

 14-3    of an individual for an offense under Section 161.252, the court

 14-4    shall suspend execution of sentence and shall require the defendant

 14-5    to attend a tobacco awareness program approved by the comptroller.

 14-6    The court may require the parent or guardian of the defendant to

 14-7    attend the tobacco awareness program with the defendant.

 14-8          (b)  On request, a tobacco awareness program may be taught in

 14-9    languages other than English.

14-10          (c)  If the defendant resides in a rural area of this state

14-11    or another area of this state in which access to a tobacco

14-12    awareness program is not readily available, the court shall require

14-13    the defendant to perform eight to 12 hours of tobacco-related

14-14    community service instead of attending the tobacco awareness

14-15    program.

14-16          (d)  The tobacco awareness program and the tobacco-related

14-17    community service are remedial and are not punishment.

14-18          (e)  Not later than the 90th day after the date of a

14-19    conviction under Section 161.252, the defendant shall present to

14-20    the court, in the manner required by the court, evidence of

14-21    satisfactory completion of the tobacco awareness program or the

14-22    tobacco-related community service.

14-23          (f)  On receipt of the evidence required under Subsection

14-24    (e), the court shall execute the sentence but may reduce the fine

14-25    imposed to not less than half the fine previously imposed by the

 15-1    court.

 15-2          Sec. 161.254.  DRIVER'S LICENSE SUSPENSION OR DENIAL.

 15-3    (a)  If the defendant does not provide the evidence required under

 15-4    Section 161.253(e) within the period specified by that subsection,

 15-5    the court shall order the Department of Public Safety to suspend or

 15-6    deny issuance of any driver's license or permit to the defendant.

 15-7    The order must specify the period of the suspension or denial,

 15-8    which may not exceed 180 days after the date of the order.

 15-9          (b)  The Department of Public Safety shall send to the

15-10    defendant notice of court action under Subsection (a) by certified

15-11    mail, return receipt requested.  The notice must include the date

15-12    of the order and the reason for the order and must specify the

15-13    period of the suspension or denial.

15-14          Sec. 161.255.  EXPUNGEMENT OF CONVICTION. An individual

15-15    convicted of an offense under Section 161.252 may apply to the

15-16    court to have the conviction expunged.  If the court finds that the

15-17    individual satisfactorily completed the tobacco awareness program

15-18    or tobacco-related community service ordered by the court, the

15-19    court shall order the conviction and any complaint, verdict,

15-20    sentence, or other document relating to the offense to be expunged

15-21    from the individual's record and the conviction may not be shown or

15-22    made known for any purpose.

15-23          Sec. 161.256.  JURISDICTION OF COURTS.  A justice court or

15-24    municipal court may exercise jurisdiction over any matter in which

15-25    a court under this subchapter may:

 16-1                (1)  impose a requirement that a defendant attend a

 16-2    tobacco awareness program or perform tobacco-related community

 16-3    service; or

 16-4                (2)  order the suspension or denial of a driver's

 16-5    license or permit.

 16-6          Sec. 161.257.  APPLICATION OF OTHER LAW.  Title 3, Family

 16-7    Code, does not apply to a proceeding under this subchapter.

 16-8             (Sections 161.258-161.300 reserved for expansion

 16-9            SUBCHAPTER O.  PREVENTION OF TOBACCO USE BY MINORS

16-10          Sec. 161.301.  TOBACCO USE PUBLIC AWARENESS CAMPAIGN.

16-11    (a)  The comptroller shall develop and implement a public awareness

16-12    campaign designed to reduce tobacco use by minors in this state.

16-13    The campaign may use advertisements or similar media to provide

16-14    educational information about tobacco use.

16-15          (b)  The comptroller may contract with another person to

16-16    develop and implement the public awareness campaign.

16-17                  ARTICLE 4.  RELATED TAX CODE PROVISIONS

16-18          SECTION 4.01.  (a)  Subsection (b), Section 154.111, Tax

16-19    Code, is amended to read as follows:

16-20          (b)  An application for a permit required by this chapter

16-21    must be accompanied by a fee of:

16-22                (1)  $300 [$100] for a bonded agent's permit;

16-23                (2)  $300 [$100] for a distributor's permit;

16-24                (3)  $200 [$50] for a wholesaler's permit; [and]

16-25                (4)  $15 for each permit for a vehicle if the applicant

 17-1    is also applying for a permit as a bonded agent, distributor, or

 17-2    wholesaler or has received a current permit from the comptroller

 17-3    [treasurer] under Sections 154.101 and 154.110; and

 17-4                (5)  $230 for a retailer's permit, except that a permit

 17-5    obtained or renewed before September 1, 1999, shall be no more than

 17-6    $160.

 17-7          (b)  Subsection (c), Section 154.111, Tax Code, is repealed.

 17-8          SECTION 4.02.  Section 154.121, Tax Code, is amended to read

 17-9    as follows:

17-10          Sec. 154.121.  REVENUE.  (a)  Except as provided by

17-11    Subsection (b), revenue [Revenue] from the sale of permits to

17-12    distributors, wholesalers, and bonded agents is allocated in the

17-13    same manner as other revenue allocated by Subchapter J.

17-14          (b)  Revenue from the sale of retailer's permits shall be

17-15    deposited to the general revenue fund and may be appropriated only

17-16    as provided by this section.  The money may be appropriated first

17-17    to the comptroller for administration of licensing of retailers

17-18    under this chapter or Chapter 155.

17-19          (c)  If, after any appropriation is made under Subsection

17-20    (b), revenue remains from the sale of retailer's permits, the

17-21    remaining money may be appropriated to the comptroller for

17-22    administration and enforcement of Subchapters H, K, and N, Chapter

17-23    161, Health and Safety Code.

17-24          (d)  If, after any appropriation is made under Subsections

17-25    (b) and (c), revenue remains from the sale of retailer's permits,

 18-1    the remaining money may be appropriated to the comptroller to

 18-2    administer the comptroller's responsibilities under Subchapter O,

 18-3    Chapter 161, Health and Safety Code.

 18-4          SECTION 4.03.  Subchapter D, Chapter 154, Tax Code, is

 18-5    amended by adding Section 154.1142 to read as follows:

 18-6          Sec. 154.1142.  DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.

 18-7    (a)  If the comptroller finds, after notice and hearing as provided

 18-8    by this subchapter, that a permit holder has violated Subchapter H

 18-9    or K, Chapter 161, Health and Safety Code, the comptroller may

18-10    suspend the permit or administratively fine the permit holder as

18-11    follows:

18-12                (1)  if the permit holder has not been found to have

18-13    violated Subchapter H or K, Chapter 161, Health and Safety Code,

18-14    during the preceding 12 months, the comptroller may suspend the

18-15    permit for not more than three days or fine the permit holder up to

18-16    $500;

18-17                (2)  if the permit holder has been found to have

18-18    violated Subchapter H or K, Chapter 161, Health and Safety Code,

18-19    once before during the preceding 12 months, the comptroller may

18-20    suspend the permit for not more than 10 days or fine the permit

18-21    holder up to $1,000; or

18-22                (3)  if the permit holder has been found to have

18-23    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

18-24    least twice before during the preceding 12 months, the comptroller

18-25    may suspend the permit for not more than two months and fine the

 19-1    permit holder up to $2,000.

 19-2          (b)  Notwithstanding Subsection (a), if the permit holder has

 19-3    been found to have violated Section 161.082(b), Health and Safety

 19-4    Code, on four previous and separate occasions during the preceding

 19-5    12 months, the comptroller shall revoke the permit.

 19-6          SECTION 4.04.  Section 154.504, Tax Code, is amended to read

 19-7    as follows:

 19-8          Sec. 154.504.  POSSESSION OF QUANTITIES LESS THAN INDIVIDUAL

 19-9    PACKAGE.  A person commits an offense if the person sells

19-10    cigarettes in quantities less than an individual package containing

19-11    at least 20 cigarettes and is subject to a $100 fine.

19-12          SECTION 4.05.  (a)  Subsection (b), Section 155.049, Tax

19-13    Code, is amended to read as follows:

19-14          (b)  An application for a permit required by this chapter

19-15    must be accompanied by a fee of:

19-16                (1)  $300 [$100] for a bonded agent's permit;

19-17                (2)  $300 [$100] for a distributor's permit;

19-18                (3)  $200 [$50] for a wholesaler's permit; [and]

19-19                (4)  $15 for each permit for a vehicle if the applicant

19-20    is also applying for a permit as a bonded agent, distributor, or

19-21    wholesaler or has received a current permit from the comptroller

19-22    [treasurer] under Sections 155.041 and 155.048; and

19-23                (5)  $230 for a retailer's permit, except that a permit

19-24    obtained or renewed before September 1, 1999, shall be no more than

19-25    $160.

 20-1          (b)  Subsection (c), Section 155.049, Tax Code, is repealed.

 20-2          SECTION 4.06.  Section 155.058, Tax Code, is amended to read

 20-3    as follows:

 20-4          Sec. 155.058.  REVENUE.  (a)  Except as provided by

 20-5    Subsection (b), revenue [Revenue] from the sale of permits to

 20-6    distributors, wholesalers, and bonded agents is allocated in the

 20-7    same manner that other revenue is allocated by Subchapter H.

 20-8          (b)  Revenue from the sale of retailer's permits shall be

 20-9    deposited to the general revenue fund and may be appropriated only

20-10    as provided by this section.  The money may be appropriated first

20-11    to the comptroller for administration of licensing of retailers

20-12    under this chapter or Chapter 154.

20-13          (c)  If, after any appropriation is made under Subsection

20-14    (b), revenue remains from the sale of retailer's permits, the

20-15    remaining money may be appropriated to the comptroller for

20-16    administration and enforcement of Subchapters H, K, and N, Chapter

20-17    161, Health and Safety Code.

20-18          (d)  If, after any appropriation is made under Subsections

20-19    (b) and (c), revenue remains from the sale of retailer's permits,

20-20    the remaining money may be appropriated to the comptroller to

20-21    administer the comptroller's responsibilities under Subchapter O,

20-22    Chapter 161, Health and Safety Code.

20-23          SECTION 4.07.  Subchapter C, Chapter 155, Tax Code, is

20-24    amended by adding Section 155.0592 to read as follows:

20-25          Sec. 155.0592.  DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.

 21-1    (a)  If the comptroller finds, after notice and hearing as provided

 21-2    by this subchapter, that a permit holder has violated Subchapter H

 21-3    or K, Chapter 161, Health and Safety Code, the comptroller may

 21-4    suspend the permit or administratively fine the permit holder as

 21-5    follows:

 21-6                (1)  if the permit holder has not been found to have

 21-7    violated Subchapter H or K, Chapter 161, Health and Safety Code,

 21-8    during the preceding 12 months, the comptroller may suspend the

 21-9    permit for not more than three days or fine the permit holder up to

21-10    $500;

21-11                (2)  if the permit holder has been found to have

21-12    violated Subchapter H or K, Chapter 161, Health and Safety Code,

21-13    once before during the preceding 12 months, the comptroller may

21-14    suspend the permit for not more than 10 days or fine the permit

21-15    holder up to $1,000; or

21-16                (3)  if the permit holder has been found to have

21-17    violated Subchapter H or K, Chapter 161, Health and Safety Code, at

21-18    least twice before during the preceding 12 months, the comptroller

21-19    may suspend the permit for not more than two months and fine the

21-20    permit holder up to $2,000.

21-21          (b)  Notwithstanding Subsection (a), if the permit holder has

21-22    been found to have violated Section 161.082(b), Health and Safety

21-23    Code, on four previous and separate occasions during the preceding

21-24    12 months, the comptroller shall revoke the permit.

 22-1          ARTICLE 5.  FEDERAL WAIVER; TRANSITION; EFFECTIVE DATE;

 22-2                             EMERGENCY CLAUSE

 22-3          SECTION 5.01.  (a)  If, before the changes in law made by

 22-4    this Act to Subchapter H or K, Health and Safety Code, take effect,

 22-5    the Texas Board of Health determines that an exemption from federal

 22-6    preemption from the federal Food and Drug Administration is

 22-7    necessary for implementation, the board shall request the exemption

 22-8    and may delay implementing the affected provision of law until the

 22-9    exemption is granted.

22-10          (b)  If a provision of law affected by a delay in

22-11    implementation under Subsection (a) of this section contains a

22-12    criminal penalty:

22-13                (1)  the Texas Board of Health shall publish in the

22-14    Texas Register notice of:

22-15                      (A)  the delay in implementation; and

22-16                      (B)  the grant of an exemption from preemption

22-17    requested under Subsection (a); and

22-18                (2)  the provision is effective on the 90th day after

22-19    the date that notice of the grant of an exemption is published

22-20    under Paragraph (B) of Subdivision (1) of this subsection.

22-21          SECTION 5.02.  (a)  Except as provided by Subsection (b) of

22-22    this section, this Act takes effect September 1, 1997.

22-23          (b)  Sections 161.083, 161.085, and 161.086, Health and

22-24    Safety Code, and Subchapter N, Chapter 161, Health and Safety Code,

22-25    as added by this Act, take effect January 1, 1998.

 23-1          (c)  The change in law made by this Act applies only to an

 23-2    offense committed on or after the effective date of this Act.  For

 23-3    purposes of this subsection, an offense is committed before the

 23-4    effective date of this Act if any element of the offense occurs

 23-5    before that date.  An offense committed before the effective date

 23-6    of this Act is governed by the law in effect when the offense was

 23-7    committed, and the former law is continued in effect for that

 23-8    purpose.

 23-9          (d)  This Act applies to the sale or distribution of coupons,

23-10    cigarettes, or tobacco products on or after the effective date of

23-11    this Act.  The sale or distribution of a coupon, cigarette, or

23-12    tobacco product before the effective date of this Act is governed

23-13    by the law in effect when the sale or distribution was made, and

23-14    that law is continued in effect for that purpose.

23-15          (e)  The increase in the amount of a fee as provided by

23-16    Subsection (b), Section 154.111 and Subsection (b), Section

23-17    155.049, Tax Code, as amended by this Act, takes effect for and is

23-18    applicable to the permit years beginning on or after March 1, 1998,

23-19    and June 1, 1998, as applicable.

23-20          SECTION 5.03.  The importance of this legislation and the

23-21    crowded condition of the calendars in both houses create an

23-22    emergency and an imperative public necessity that the

23-23    constitutional rule requiring bills to be read on three several

23-24    days in each house be suspended, and this rule is hereby suspended.