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.