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) If an offense under this section occurs in connection
2-13 with a sale by an employee of the owner of a store in which
2-14 cigarettes or tobacco products are sold at retail, the employee is
2-15 criminally responsible for the offense and is subject to
2-16 prosecution.
2-17 (c) An offense under this section is a Class C misdemeanor.
2-18 (d) [(c)] It is a defense to prosecution under Subsection
2-19 (a)(1) [this section] that the person to whom the cigarette or
2-20 [other] tobacco product was sold or given presented to the
2-21 defendant [an] apparently valid proof of [Texas driver's license or
2-22 an] identification.
2-23 (e) A proof of identification satisfies the requirements of
2-24 Subsection (d) if it contains [card, issued by the Department of
2-25 Public Safety and containing] a physical description and photograph
3-1 consistent with the person's appearance, purports [that purported]
3-2 to establish that the person is [was] 18 years of age or older, and
3-3 was issued by a governmental agency. The proof of identification
3-4 may include a driver's license issued by this state or another
3-5 state, a passport, or an identification card issued by a state or
3-6 the federal government.
3-7 Sec. 161.083. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
3-8 PERSONS YOUNGER THAN 27 YEARS OF AGE. (a) Pursuant to federal
3-9 regulation under 21 C.F.R. Section 897.14(b), a person may not
3-10 sell, give, or cause to be sold or given a cigarette or tobacco
3-11 product to someone who is younger than 27 years of age unless the
3-12 person to whom the cigarette or tobacco product was sold or given
3-13 presents an apparently valid proof of identification.
3-14 (b) A retailer shall adequately supervise and train the
3-15 retailer's agents and employees to prevent a violation of
3-16 Subsection (a).
3-17 (c) A proof of identification described by Section
3-18 161.082(e) satisfies the requirements of Subsection (a).
3-19 (d) Notwithstanding any other provision of law, a violation
3-20 of this section is not a violation of this subchapter for purposes
3-21 of Section 154.1142 or 155.0592, Tax Code.
3-22 Sec. 161.084 [161.082]. WARNING NOTICE. (a) Each person
3-23 who sells cigarettes or tobacco products at retail or by vending
3-24 machine shall post a sign in a location that is conspicuous to all
3-25 employees and customers and that is close to the place at which the
4-1 cigarettes or tobacco products may be purchased.
4-2 (b) The sign must include the statement:
4-3 PURCHASING OR ATTEMPTING TO PURCHASE
4-4 TOBACCO PRODUCTS BY A MINOR UNDER 18 YEARS
4-5 OF AGE IS PROHIBITED BY LAW. SALE OR
4-6 PROVISION OF TOBACCO PRODUCTS TO A MINOR
4-7 UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW.
4-8 UPON CONVICTION, A CLASS C MISDEMEANOR,
4-9 INCLUDING A [MAXIMUM] FINE OF UP TO $500,
4-10 [$200] MAY BE IMPOSED. VIOLATIONS MAY BE
4-11 REPORTED TO THE TEXAS COMPTROLLER'S OFFICE
4-12 BY CALLING (insert toll-free telephone
4-13 number).
4-14 (c) The comptroller [board] by rule shall determine the
4-15 design and size of the sign.
4-16 (d) The comptroller [department] on request shall provide
4-17 the sign without charge to any person who sells cigarettes or
4-18 tobacco [cigarette] products. The comptroller [department] may
4-19 provide the sign without charge to [cigarette] distributors of
4-20 cigarettes or tobacco products or wholesale dealers of cigarettes
4-21 or tobacco [cigarette] products in this state for distribution to
4-22 persons who sell cigarettes or tobacco [cigarette] products. A
4-23 distributor or wholesale dealer may not charge for distributing a
4-24 sign under this subsection.
4-25 (e) A person commits an offense if the person intentionally
5-1 fails to display a sign as prescribed by this section. An offense
5-2 under this subsection is a Class C misdemeanor.
5-3 Sec. 161.085. NOTIFICATION OF EMPLOYEES AND AGENTS.
5-4 (a) Each permit holder shall notify each individual employed by
5-5 that permit holder who is to be engaged in retail sales of
5-6 cigarettes or tobacco products that state law:
5-7 (1) prohibits the sale or distribution of cigarettes
5-8 or tobacco products to any person who is younger than 18 years of
5-9 age as provided by Section 161.082 and that a violation of that
5-10 section is a Class C misdemeanor; and
5-11 (2) requires each person who sells cigarettes or
5-12 tobacco products at retail or by vending machine to post a warning
5-13 notice as provided by Section 161.084, requires each employee to
5-14 ensure that the appropriate sign is always properly displayed while
5-15 that employee is exercising the employee's duties, and provides
5-16 that an intentional violation of Section 161.084 is a Class C
5-17 misdemeanor.
5-18 (b) The notice required by Subsection (a) must be provided
5-19 within 72 hours of the date an individual begins to engage in
5-20 retail sales of tobacco products. The individual shall signify
5-21 that the individual has received the notice required by Subsection
5-22 (a) by signing a form stating that the law has been fully
5-23 explained, that the individual understands the law, and that the
5-24 individual, as a condition of employment, agrees to comply with the
5-25 law.
6-1 (c) Each form signed by an individual under this section
6-2 shall indicate the date of the signature and the current address
6-3 and social security number of the individual. The permit holder
6-4 shall retain the form signed by each individual employed as a
6-5 retail sales clerk until the 60th day after the date the individual
6-6 has left the employer's employ.
6-7 (d) A permit holder required by this section to notify
6-8 employees commits an offense if the permit holder fails, on demand
6-9 of a peace officer or an agent of the comptroller, to provide the
6-10 notice prescribed by this section. An offense under this section
6-11 is a Class C misdemeanor.
6-12 (e) It is a defense to prosecution under Subsection (d) to
6-13 show proof that the employee did complete, sign, and date the
6-14 notice required by Subsection (a). Proof must be shown to the
6-15 comptroller or an agent of the comptroller within 72 hours of the
6-16 offense.
6-17 Sec. 161.086. VENDOR ASSISTED SALES REQUIRED; VENDING
6-18 MACHINES. (a) Except as provided by Subsection (b), a retailer or
6-19 other person may not:
6-20 (1) offer cigarettes or tobacco products for sale in a
6-21 manner that permits a customer direct access to the cigarettes or
6-22 tobacco products; or
6-23 (2) install or maintain a vending machine containing
6-24 cigarettes or tobacco products.
6-25 (b) Subsection (a) does not apply to:
7-1 (1) a facility or business that is not open to persons
7-2 younger than 18 years of age at any time; or
7-3 (2) that part of a facility or business that is a
7-4 humidor or other enclosure designed to store cigars in a
7-5 climate-controlled environment.
7-6 (c) The comptroller or a peace officer may, with or without
7-7 a warrant, seize, seal, or disable a vending machine installed or
7-8 maintained in violation of this section. Property seized under
7-9 this subsection must be seized in accordance with, and is subject
7-10 to forfeiture to the state in accordance with, Subchapter H,
7-11 Chapter 154, Tax Code, and Subchapter E, Chapter 155, Tax Code.
7-12 (d) A person commits an offense if the person violates
7-13 Subsection (a). An offense under this subsection is a Class C
7-14 misdemeanor.
7-15 Sec. 161.087. DISTRIBUTION OF CIGARETTES OR TOBACCO
7-16 PRODUCTS. (a) A person may not distribute to persons younger than
7-17 18 years of age:
7-18 (1) a free sample of a cigarette or tobacco product;
7-19 or
7-20 (2) a coupon or other item that the recipient may use
7-21 to receive a free or discounted cigarette or tobacco product or a
7-22 sample cigarette or tobacco product.
7-23 (b) Except as provided by Subsection (c), a permit holder
7-24 may not accept or redeem, offer to accept or redeem, or hire a
7-25 person to accept or redeem a coupon or other item that the
8-1 recipient may use to receive a free or discounted cigarette or
8-2 tobacco product or a sample cigarette or tobacco product if the
8-3 recipient is younger than 18 years of age. A coupon or other item
8-4 that such a recipient may use to receive a free or discounted
8-5 cigarette or tobacco product or a sample cigarette or tobacco
8-6 product may not be redeemable through mail or courier delivery.
8-7 (c) Subsections (a)(2) and (b) do not apply to a transaction
8-8 between permit holders unless the transaction is a retail sale.
8-9 (d) A person commits an offense if the person violates this
8-10 section. An offense under this subsection is a Class C
8-11 misdemeanor.
8-12 Sec. 161.088. ENFORCEMENT; UNANNOUNCED INSPECTIONS.
8-13 (a) The comptroller shall enforce this subchapter in partnership
8-14 with county sheriffs and municipal chiefs of police and with their
8-15 cooperation and shall ensure the state's compliance with Section
8-16 1926 of the federal Public Health Service Act (42 U.S.C. Section
8-17 300x-26) and any implementing regulations adopted by the United
8-18 States Department of Health and Human Services. Except as
8-19 expressly authorized by law, the comptroller may not adopt any
8-20 rules governing the subject matter of this subchapter or Subchapter
8-21 K, N, or O.
8-22 (b) The comptroller may make block grants to counties and
8-23 municipalities to be used by county sheriffs and municipal chiefs
8-24 of police to enforce this subchapter in a manner that can
8-25 reasonably be expected to reduce the extent to which cigarettes and
9-1 tobacco products are sold or distributed to persons who are younger
9-2 than 18 years of age. At least annually, random unannounced
9-3 inspections shall be conducted at various locations where
9-4 cigarettes and tobacco products are sold or distributed to ensure
9-5 compliance with this subchapter. The comptroller shall rely, to
9-6 the fullest extent possible, on sheriffs or chiefs of police or
9-7 their employees to enforce this subchapter.
9-8 (c) To facilitate the effective administration and
9-9 enforcement of this subchapter, the comptroller may enter into
9-10 interagency contracts with other state agencies, and those agencies
9-11 may assist the comptroller in the administration and enforcement of
9-12 this subchapter.
9-13 (d) The use of a person younger than 18 years of age to act
9-14 as a minor decoy to test compliance with this subchapter shall be
9-15 conducted in a fashion that promotes fairness. A person may be
9-16 enlisted by the comptroller to act as a minor decoy only if the
9-17 following requirements are met:
9-18 (1) written parental consent is obtained for the use
9-19 of a person younger than 18 years of age to act as a minor decoy to
9-20 test compliance with this subchapter;
9-21 (2) at the time of the inspection, the minor decoy is
9-22 younger than 17 years of age;
9-23 (3) the minor decoy has an appearance that would cause
9-24 a reasonably prudent seller of cigarettes or tobacco products to
9-25 request identification and proof of age;
10-1 (4) the minor decoy carries either the minor's own
10-2 identification showing the minor's correct date of birth or carries
10-3 no identification, and a minor decoy who carries identification
10-4 presents it on request to any seller of cigarettes or tobacco
10-5 products; and
10-6 (5) the minor decoy answers truthfully any questions
10-7 about the minor's age.
10-8 (e) The comptroller shall annually prepare for submission by
10-9 the governor to the secretary of the United States Department of
10-10 Health and Human Services the report required by Section 1926 of
10-11 the federal Public Health Service Act (42 U.S.C. Section 300x-26).
10-12 Sec. 161.089. PREEMPTION OF LOCAL LAW. This subchapter does
10-13 not preempt a local regulation of the sale, distribution, or use of
10-14 cigarettes or tobacco products or affect the authority of a
10-15 political subdivision to adopt or enforce an ordinance or
10-16 requirement relating to the sale, distribution, or use of
10-17 cigarettes or tobacco products if the regulation, ordinance, or
10-18 requirement:
10-19 (1) is compatible with and equal to or more stringent
10-20 than a requirement prescribed by this subchapter; or
10-21 (2) relates to an issue that is not specifically
10-22 addressed by this subchapter or Chapter 154 or 155, Tax Code.
10-23 Sec. 161.090. REPORTS OF VIOLATION. A local or state law
10-24 enforcement agency or other governmental unit shall notify the
10-25 comptroller, on the 10th day of each month, or the first working
11-1 day after that date, of any violation of this subchapter that
11-2 occurred in the preceding month that the agency or unit detects,
11-3 investigates, or prosecutes.
11-4 Sec. 161.0901. REPORT OF OFFICE OF SMOKING AND
11-5 HEALTH. (a) Not later than January 5th of each odd-numbered year
11-6 the Office of Smoking and Health of the department shall report to
11-7 the governor, lieutenant governor, and the speaker of the house of
11-8 representatives on the status of smoking and the use of tobacco and
11-9 tobacco products in this state.
11-10 (b) The report must include, at a minimum:
11-11 (1) a baseline of statistics and analysis regarding
11-12 retail compliance with this subchapter, Subchapter K, and Chapters
11-13 154 and 155, Tax Code;
11-14 (2) a baseline of statistics and analysis regarding
11-15 illegal tobacco sales, including:
11-16 (A) sales to minors;
11-17 (B) enforcement actions concerning minors; and
11-18 (C) sources of citations;
11-19 (3) tobacco controls and initiatives by the Office of
11-20 Smoking and Health of the department, or any other state agency,
11-21 including an evaluation of the effectiveness of the controls and
11-22 initiatives;
11-23 (4) the future goals and plans of the Office of
11-24 Smoking and Health of the department to decrease the use of tobacco
11-25 and tobacco products;
12-1 (5) the educational programs of the Office of Smoking
12-2 and Health of the department and the effectiveness of those
12-3 programs; and
12-4 (6) the incidence of use of tobacco and tobacco
12-5 products by regions in this state, including use of cigarettes and
12-6 tobacco products by ethnicity.
12-7 ARTICLE 2. ADVERTISING OF CIGARETTES OR TOBACCO PRODUCTS
12-8 SECTION 2.01. Subchapter K, Chapter 161, Health and Safety
12-9 Code, is amended to read as follows:
12-10 SUBCHAPTER K. PROHIBITION OF CERTAIN CIGARETTE OR TOBACCO
12-11 PRODUCT ADVERTISING; FEE
12-12 Sec. 161.121. DEFINITIONS. In this subchapter:
12-13 (1) "Church" means a facility that is owned by a
12-14 religious organization and that is used primarily for religious
12-15 services.
12-16 (2) "Cigarette" has the meaning assigned by Section
12-17 154.001, Tax Code.
12-18 (3) "School" means a private or public elementary or
12-19 secondary school.
12-20 (4) [(3)] "Sign" means an outdoor medium, including a
12-21 structure, display, light device, figure, painting, drawing,
12-22 message, plaque, poster, or billboard, that is:
12-23 (A) used to advertise or inform; and
12-24 (B) visible from the main-traveled way of a
12-25 street or highway.
13-1 (5) [(4)] "Tobacco product" has the meaning assigned
13-2 by Section 155.001, Tax Code.
13-3 Sec. 161.122. PROHIBITION RELATING TO CERTAIN SIGNS;
13-4 EXCEPTIONS. (a) Except as provided by this section, a [A] sign
13-5 containing an advertisement for cigarettes or tobacco products may
13-6 not be located closer than 1,000 [500] feet to a church or school.
13-7 (b) The measurement of the distance between the sign
13-8 containing an advertisement for cigarettes or tobacco products and
13-9 an institution listed in Subsection (a) is from the nearest
13-10 property line of the institution to a point on a street or highway
13-11 closest to the sign, along street lines and in direct lines across
13-12 intersections.
13-13 (c) This section does not apply to[:]
13-14 [(1)] a sign located on or in a facility owned or
13-15 leased by a professional sports franchise or in a facility where
13-16 professional sports events are held at least 10 times during a
13-17 12-month period[; or]
13-18 [(2) a contract for a cigarette or other tobacco
13-19 product advertisement entered into before August 26, 1991].
13-20 (d) In Subsection (c) [(c)(1)], a "facility" includes a
13-21 stadium, arena, or events center and any land or property owned or
13-22 leased by the professional sports franchise that is connected to or
13-23 immediately contiguous to the stadium, arena, or events center.
13-24 (e) Subsection (a) does not apply to a sign containing an
13-25 advertisement for cigarettes or tobacco products that, before
14-1 September 1, 1997, was located closer than 1,000 feet to a church
14-2 or school but that was not located closer than 500 feet to the
14-3 church or school.
14-4 Sec. 161.123. ADVERTISING FEE. (a) A purchaser of
14-5 advertising is liable for and shall remit to the comptroller a fee
14-6 that is 10 percent of the gross sales price of any outdoor
14-7 advertising of cigarettes and tobacco products in this state.
14-8 (b) The comptroller shall collect the fee and deposit the
14-9 money as provided in this section.
14-10 (c) The liability for the payment of fees under this section
14-11 may not be nullified by contract.
14-12 (d) The comptroller shall establish by rule the periods for
14-13 collection of the fees and the methods of payment and shall adopt
14-14 other rules necessary to administer and enforce this section.
14-15 (e) In this section, "gross sales price" means the sum of:
14-16 (1) production costs;
14-17 (2) media cost; and
14-18 (3) cost of sales or commissions paid to an agency or
14-19 broker.
14-20 Sec. 161.124. USE OF ADVERTISING FEE. (a) The comptroller
14-21 shall deposit the fee collected under Section 161.123 to a special
14-22 account in the state treasury called the tobacco education and
14-23 enforcement education fund.
14-24 (b) Money in the account may be appropriated only for
14-25 administration and enforcement of this section, enforcement of law
15-1 relating to cigarettes and tobacco products, and the education
15-2 advertising campaign and grant program established under Subchapter
15-3 O, Chapter 161.
15-4 Sec. 161.125. ADMINISTRATIVE PENALTY. (a) The comptroller
15-5 by order may impose an administrative penalty against a purchaser
15-6 of advertising required to comply with Section 161.123 who violates
15-7 that section or a rule or order adopted under that section.
15-8 (b) The penalty for a violation may be in an amount not to
15-9 exceed $5,000. Each day a violation continues or occurs is a
15-10 separate violation for purposes of imposing a penalty.
15-11 (c) The amount of the penalty shall be based on:
15-12 (1) the amount of fees due and owing;
15-13 (2) attempted concealment of misconduct by the person
15-14 who committed the violation;
15-15 (3) premeditated misconduct by the person who
15-16 committed the violation;
15-17 (4) intentional misconduct by the person who committed
15-18 the violation;
15-19 (5) the motive of the person who committed the
15-20 violation;
15-21 (6) prior misconduct of a similar or related nature by
15-22 the person who committed the violation;
15-23 (7) prior written warnings or written admonishments
15-24 from any government agency or official regarding statutes or
15-25 regulations pertaining to the misconduct;
16-1 (8) violation by the person who committed the
16-2 violation of an order of the comptroller;
16-3 (9) lack of rehabilitative potential or likelihood for
16-4 future misconduct of a similar nature;
16-5 (10) relevant circumstances increasing the seriousness
16-6 of the misconduct; and
16-7 (11) any other matter justice may require.
16-8 (d) The comptroller shall prescribe the procedure by which
16-9 the comptroller may impose an administrative penalty under this
16-10 section.
16-11 (e) A proceeding under this section is subject to Chapter
16-12 2001, Government Code.
16-13 (f) If the comptroller by order finds that a violation has
16-14 occurred and imposes an administrative penalty, the comptroller
16-15 shall give notice to the person of the comptroller's order. The
16-16 notice must include a statement of the rights of the person to
16-17 judicial review of the order.
16-18 (g) If the purchaser of advertising does not pay the amount
16-19 of the penalty, the comptroller may refer the matter to the
16-20 attorney general for collection of the amount of the penalty.
16-21 (h) A penalty collected under this section shall be
16-22 deposited in the general revenue fund.
16-23 ARTICLE 3. YOUTH TOBACCO USE
16-24 SECTION 3.01. Chapter 161, Health and Safety Code, is
16-25 amended by adding Subchapters N and O to read as follows:
17-1 SUBCHAPTER N. TOBACCO USE BY MINORS
17-2 Sec. 161.251. DEFINITIONS. In this subchapter:
17-3 (1) "Cigarette" has the meaning assigned by Section
17-4 154.001, Tax Code.
17-5 (2) "Tobacco product" has the meaning assigned by
17-6 Section 155.001, Tax Code.
17-7 Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT
17-8 OF CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) An
17-9 individual who is younger than 18 years of age commits an offense
17-10 if the individual:
17-11 (1) possesses, purchases, consumes, or accepts a
17-12 cigarette or tobacco product; or
17-13 (2) falsely represents himself or herself to be 18
17-14 years of age or older by displaying proof of age that is false,
17-15 fraudulent, or not actually proof of the individual's own age in
17-16 order to obtain possession of, purchase, or receive a cigarette or
17-17 tobacco product.
17-18 (b) It is an exception to the application of this section
17-19 that the individual younger than 18 years of age possessed the
17-20 cigarette or tobacco product in the presence of:
17-21 (1) an adult parent, a guardian, or a spouse of the
17-22 individual; or
17-23 (2) an employer of the individual, if possession or
17-24 receipt of the tobacco product is required in the performance of
17-25 the employee's duties as an employee.
18-1 (c) It is an exception to the application of this section
18-2 that the individual younger than 18 years of age is participating
18-3 in an inspection or test of compliance in accordance with Section
18-4 161.088.
18-5 (d) An offense under this section is punishable by a fine
18-6 not to exceed $250.
18-7 Sec. 161.253. TOBACCO AWARENESS PROGRAM; COMMUNITY SERVICE.
18-8 (a) On conviction of an individual for an offense under Section
18-9 161.252, the court shall suspend execution of sentence and shall
18-10 require the defendant to attend a tobacco awareness program
18-11 approved by the commissioner. The court may require the parent or
18-12 guardian of the defendant to attend the tobacco awareness program
18-13 with the defendant.
18-14 (b) On request, a tobacco awareness program may be taught in
18-15 languages other than English.
18-16 (c) If the defendant resides in a rural area of this state
18-17 or another area of this state in which access to a tobacco
18-18 awareness program is not readily available, the court shall require
18-19 the defendant to perform eight to 12 hours of tobacco-related
18-20 community service instead of attending the tobacco awareness
18-21 program.
18-22 (d) The tobacco awareness program and the tobacco-related
18-23 community service are remedial and are not punishment.
18-24 (e) Not later than the 90th day after the date of a
18-25 conviction under Section 161.252, the defendant shall present to
19-1 the court, in the manner required by the court, evidence of
19-2 satisfactory completion of the tobacco awareness program or the
19-3 tobacco-related community service.
19-4 (f) On receipt of the evidence required under Subsection
19-5 (e), the court shall:
19-6 (1) if the defendant has been previously convicted of
19-7 an offense under Section 161.252, execute the sentence, and at the
19-8 discretion of the court, reduce the fine imposed to not less than
19-9 half the fine previously imposed by the court; or
19-10 (2) if the defendant has not been previously convicted
19-11 of an offense under Section 161.252, discharge the defendant and
19-12 dismiss the complaint or information against the defendant.
19-13 (g) If the court discharges the defendant under Subsection
19-14 (f)(2), the defendant is released from all penalties and
19-15 disabilities resulting from the offense except that the defendant
19-16 is considered to have been convicted of the offense if the
19-17 defendant is subsequently convicted of an offense under Section
19-18 161.252 committed after the dismissal under Subsection (f)(2).
19-19 Sec. 161.254. DRIVER'S LICENSE SUSPENSION OR DENIAL.
19-20 (a) If the defendant does not provide the evidence required under
19-21 Section 161.253(e) within the period specified by that subsection,
19-22 the court shall order the Department of Public Safety to suspend or
19-23 deny issuance of any driver's license or permit to the defendant.
19-24 The order must specify the period of the suspension or denial,
19-25 which may not exceed 180 days after the date of the order.
20-1 (b) The Department of Public Safety shall send to the
20-2 defendant notice of court action under Subsection (a) by certified
20-3 mail, return receipt requested. The notice must include the date
20-4 of the order and the reason for the order and must specify the
20-5 period of the suspension or denial.
20-6 Sec. 161.255. EXPUNGEMENT OF CONVICTION. An individual
20-7 convicted of an offense under Section 161.252 may apply to the
20-8 court to have the conviction expunged. If the court finds that the
20-9 individual satisfactorily completed the tobacco awareness program
20-10 or tobacco-related community service ordered by the court, the
20-11 court shall order the conviction and any complaint, verdict,
20-12 sentence, or other document relating to the offense to be expunged
20-13 from the individual's record and the conviction may not be shown or
20-14 made known for any purpose.
20-15 Sec. 161.256. JURISDICTION OF COURTS. A justice court or
20-16 municipal court may exercise jurisdiction over any matter in which
20-17 a court under this subchapter may:
20-18 (1) impose a requirement that a defendant attend a
20-19 tobacco awareness program or perform tobacco-related community
20-20 service; or
20-21 (2) order the suspension or denial of a driver's
20-22 license or permit.
20-23 Sec. 161.257. APPLICATION OF OTHER LAW. Title 3, Family
20-24 Code, does not apply to a proceeding under this subchapter.
20-25 (Sections 161.258-161.300 reserved for expansion
21-1 SUBCHAPTER O. PREVENTION OF TOBACCO USE BY MINORS
21-2 Sec. 161.301. TOBACCO USE PUBLIC AWARENESS CAMPAIGN.
21-3 (a) The commissioner shall develop and implement a public
21-4 awareness campaign designed to reduce tobacco use by minors in this
21-5 state. The campaign may use advertisements or similar media to
21-6 provide educational information about tobacco use.
21-7 (b) The commissioner may contract with another person to
21-8 develop and implement the public awareness campaign. The contract
21-9 shall be awarded on the basis of competitive bids.
21-10 (c) A contract awarded under Subsection (b) may be awarded
21-11 only to a business that has a proven background in advertising and
21-12 public relations campaigns.
21-13 (d) The commissioner may not award a contract under
21-14 Subsection (b) to:
21-15 (1) a person or entity that is required to register
21-16 with the Texas Ethics Commission under Chapter 305, Government
21-17 Code;
21-18 (2) any partner, employee, employer, relative,
21-19 contractor, consultant, or related entity of a person or entity
21-20 described by Subdivision (1); or
21-21 (3) a person or entity who has been hired to represent
21-22 associations or other entities for the purpose of affecting the
21-23 outcome of legislation, agency rules, or other government policies
21-24 through grassroots or media campaigns.
21-25 (e) The persons or entities described by Subsection (d) are
22-1 not eligible to receive the money or participate either directly or
22-2 indirectly in the public awareness campaign.
22-3 Sec. 161.302. GRANT PROGRAM FOR YOUTH GROUPS. (a) The
22-4 entity administering Section 161.301 shall also develop and
22-5 implement a grant program to support youth groups that include as a
22-6 part of the group's program components related to reduction of
22-7 tobacco use by the group's members.
22-8 (b) "Youth group" means a nonprofit organization that:
22-9 (1) is chartered as a national or statewide
22-10 organization;
22-11 (2) is organized and operated exclusively for youth
22-12 recreational or educational purposes and that includes, as part of
22-13 the group's program, in addition to the components described by
22-14 Subsection (a), components relating to:
22-15 (A) prevention of drug abuse;
22-16 (B) character development;
22-17 (C) citizenship training; and
22-18 (D) physical and mental fitness;
22-19 (3) has been in existence for at least 10 years; and
22-20 (4) has a membership of which at least 65 percent is
22-21 younger than 22 years of age.
22-22 ARTICLE 4. RELATED TAX CODE PROVISIONS
22-23 SECTION 4.01. (a) Section 154.111, Tax Code, is amended by
22-24 amending Subsection (b) and adding Subsection (g) to read as
22-25 follows:
23-1 (b) An application for a permit required by this chapter
23-2 must be accompanied by a fee of:
23-3 (1) $300 [$100] for a bonded agent's permit;
23-4 (2) $300 [$100] for a distributor's permit;
23-5 (3) $200 [$50] for a wholesaler's permit; [and]
23-6 (4) $15 for each permit for a vehicle if the applicant
23-7 is also applying for a permit as a bonded agent, distributor, or
23-8 wholesaler or has received a current permit from the comptroller
23-9 [treasurer] under Sections 154.101 and 154.110; and
23-10 (5) $180 for a retailer's permit.
23-11 (g) Notwithstanding Subsection (b)(5), an application for a
23-12 retailer's permit issued or renewed before September 1, 1999, must
23-13 be accompanied by a fee of $125. This subsection expires December
23-14 31, 1999.
23-15 (b) Subsection (c), Section 154.111, Tax Code, is repealed.
23-16 SECTION 4.02. Section 154.121, Tax Code, is amended to read
23-17 as follows:
23-18 Sec. 154.121. REVENUE. (a) Except as provided by
23-19 Subsection (b), revenue [Revenue] from the sale of permits to
23-20 distributors, wholesalers, and bonded agents is allocated in the
23-21 same manner as other revenue allocated by Subchapter J.
23-22 (b) Revenue from the sale of retailer's permits shall be
23-23 deposited to the general revenue fund and may be appropriated only
23-24 as provided by this section. The money may be appropriated first
23-25 to the comptroller for administration of licensing of retailers
24-1 under this chapter or Chapter 155.
24-2 (c) If, after any appropriation is made under Subsection
24-3 (b), revenue remains from the sale of retailer's permits, the
24-4 remaining money may be appropriated to the comptroller for
24-5 administration and enforcement of Subchapters H, K, and N, Chapter
24-6 161, Health and Safety Code, and to the Texas Department of Health,
24-7 for the administration and enforcement of Section 161.253, Health
24-8 and Safety Code.
24-9 (d) If, after any appropriation is made under Subsections
24-10 (b) and (c), revenue remains from the sale of retailer's permits,
24-11 the remaining money may be appropriated to the Texas Department of
24-12 Health to administer the commissioner of public health's
24-13 responsibilities under Section 161.301, Health and Safety Code.
24-14 (e) If, after any appropriation is made under Subsections
24-15 (b), (c), and (d), revenue remains from the sale of retailer's
24-16 permits, the remaining money may be appropriated to the appropriate
24-17 entity to administer that entity's responsibilities under Section
24-18 161.302, Health and Safety Code.
24-19 SECTION 4.03. Subchapter D, Chapter 154, Tax Code, is
24-20 amended by adding Section 154.1142 to read as follows:
24-21 Sec. 154.1142. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
24-22 (a) A retailer is subject to disciplinary action as provided by
24-23 this section if:
24-24 (1) an agent or employee of the retailer commits an
24-25 offense under Subchapter H, Chapter 161, Health and Safety Code;
25-1 and
25-2 (2) the retailer, with criminal negligence, failed to
25-3 prevent the offense through adequate supervision and training of
25-4 the agent or employee.
25-5 (b) If the comptroller finds, after notice and hearing as
25-6 provided by this subchapter, that a permit holder has violated
25-7 Subchapter H or K, Chapter 161, Health and Safety Code, at a place
25-8 of business for which a permit is issued, the comptroller may
25-9 suspend the permit for that place of business or administratively
25-10 assess a fine as follows:
25-11 (1) if the permit holder has not been found to have
25-12 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
25-13 that place of business during the preceding 12 months, the
25-14 comptroller may require the permit holder to pay a fine in an
25-15 amount not to exceed $500;
25-16 (2) if the permit holder has been found to have
25-17 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
25-18 that place of business once during the preceding 12 months, the
25-19 comptroller may require the permit holder to pay a fine in an
25-20 amount not to exceed $750; and
25-21 (3) if the permit holder has been found to have
25-22 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
25-23 that place of business at least twice during the preceding 12
25-24 months, the comptroller may require the permit holder to pay a fine
25-25 in an amount not to exceed $1,000 or suspend the permit for that
26-1 place of business for not more than three days.
26-2 (c) Except as provided by Section 154.1143, if the permit
26-3 holder has been found to have violated Section 161.082(b), Health
26-4 and Safety Code, on four or more previous and separate occasions at
26-5 the same place of business during the preceding 12 months, the
26-6 comptroller shall revoke the permit.
26-7 (d) A retailer whose permit has been revoked under this
26-8 section may not apply for a retailer's permit for the same place of
26-9 business before the expiration of six months after the effective
26-10 date of the revocation.
26-11 SECTION 4.04. Subchapter D, Chapter 154, Tax Code, is
26-12 amended by adding Section 154.1143 to read as follows:
26-13 Sec. 154.1143. ACTIONS OF EMPLOYEE. (a) For purposes of
26-14 Subchapter H, Chapter 161, Health and Safety Code, and the
26-15 provisions of this code relating to the sale or delivery of
26-16 cigarettes or tobacco products to a minor, the comptroller may
26-17 suspend a permit but may not revoke the permit under Section
26-18 154.1142(c) if the comptroller finds that:
26-19 (1) the employer has not violated Section 161.082(b),
26-20 Health and Safety Code, more than seven times at the place of
26-21 business for which the permit is issued in the 24-month period
26-22 preceding the violation in question;
26-23 (2) the employer requires its employees to attend a
26-24 comptroller-approved seller training program;
26-25 (3) the employee has actually attended a
27-1 comptroller-approved seller training program; and
27-2 (4) the employer has not directly or indirectly
27-3 encouraged the employee to violate the law.
27-4 (b) The comptroller shall adopt rules or policies
27-5 establishing the minimum requirements for approved seller training
27-6 programs. On application, the comptroller shall approve seller
27-7 training programs meeting the requirements that are sponsored
27-8 privately or by public community colleges. The comptroller may
27-9 charge an application fee in an amount necessary to defray the
27-10 expense of processing the application.
27-11 (c) The comptroller may approve under this section a seller
27-12 training program sponsored by a permit holder for the purpose of
27-13 training its employees without regard to whether the employees are
27-14 located at the same place of business. This subsection applies
27-15 only to a permit holder who employs at least 100 persons at any one
27-16 time during the permit year who sell cigarettes or tobacco
27-17 products.
27-18 SECTION 4.05. Section 154.504, Tax Code, is amended to read
27-19 as follows:
27-20 Sec. 154.504. POSSESSION OF QUANTITIES LESS THAN INDIVIDUAL
27-21 PACKAGE. A person commits an offense and is subject to a $100 fine
27-22 if the person sells cigarettes in quantities less than an
27-23 individual package containing at least 20 cigarettes.
27-24 SECTION 4.06. (a) Section 155.049, Tax Code, is amended by
27-25 amending Subsection (b) and adding Subsection (g) to read as
28-1 follows:
28-2 (b) An application for a permit required by this chapter
28-3 must be accompanied by a fee of:
28-4 (1) $300 [$100] for a bonded agent's permit;
28-5 (2) $300 [$100] for a distributor's permit;
28-6 (3) $200 [$50] for a wholesaler's permit; [and]
28-7 (4) $15 for each permit for a vehicle if the applicant
28-8 is also applying for a permit as a bonded agent, distributor, or
28-9 wholesaler or has received a current permit from the comptroller
28-10 [treasurer] under Sections 155.041 and 155.048; and
28-11 (5) $180 for a retailer's permit.
28-12 (g) Notwithstanding Subsection (b)(5), an application for a
28-13 retailer's permit issued or renewed before September 1, 1999, must
28-14 be accompanied by a fee of $125. This subsection expires December
28-15 31, 1999.
28-16 (b) Subsection (c), Section 155.049, Tax Code, is repealed.
28-17 SECTION 4.07. Section 155.058, Tax Code, is amended to read
28-18 as follows:
28-19 Sec. 155.058. REVENUE. (a) Except as provided by
28-20 Subsection (b), revenue [Revenue] from the sale of permits to
28-21 distributors, wholesalers, and bonded agents is allocated in the
28-22 same manner that other revenue is allocated by Subchapter H.
28-23 (b) Revenue from the sale of retailer's permits shall be
28-24 deposited to the general revenue fund and may be appropriated only
28-25 as provided by this section. The money may be appropriated first
29-1 to the comptroller for administration of licensing of retailers
29-2 under this chapter or Chapter 154.
29-3 (c) If, after any appropriation is made under Subsection
29-4 (b), revenue remains from the sale of retailer's permits, the
29-5 remaining money may be appropriated to the comptroller for
29-6 administration and enforcement of Subchapters H, K, and N, Chapter
29-7 161, Health and Safety Code, and to the Texas Department of Health,
29-8 for the administration and enforcement of Section 161.253, Health
29-9 and Safety Code.
29-10 (d) If, after any appropriation is made under Subsections
29-11 (b) and (c), revenue remains from the sale of retailer's permits,
29-12 the remaining money may be appropriated to the Texas Department of
29-13 Health to administer the commissioner of public health's
29-14 responsibilities under Section 161.301, Health and Safety Code.
29-15 (e) If, after any appropriation is made under Subsections
29-16 (b), (c), and (d), revenue remains from the sale of retailer's
29-17 permits, the remaining money may be appropriated to the appropriate
29-18 entity to administer that entity's responsibilities under Section
29-19 161.302, Health and Safety Code.
29-20 SECTION 4.08. Subchapter C, Chapter 155, Tax Code, is
29-21 amended by adding Section 155.0592 to read as follows:
29-22 Sec. 155.0592. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
29-23 (a) A retailer is subject to disciplinary action as provided by
29-24 this section if:
29-25 (1) an agent or employee of the retailer commits an
30-1 offense under Subchapter H, Chapter 161, Health and Safety Code;
30-2 and
30-3 (2) the retailer, with criminal negligence, failed to
30-4 prevent the offense through adequate supervision and training of
30-5 the agent or employee.
30-6 (b) If the comptroller finds, after notice and hearing as
30-7 provided by this subchapter, that a permit holder has violated
30-8 Subchapter H or K, Chapter 161, Health and Safety Code, at a place
30-9 of business for which a permit is issued, the comptroller may
30-10 suspend the permit for that place of business or administratively
30-11 assess a fine as follows:
30-12 (1) if the permit holder has not been found to have
30-13 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
30-14 that place of business during the preceding 12 months, the
30-15 comptroller may require the permit holder to pay a fine in an
30-16 amount not to exceed $500;
30-17 (2) if the permit holder has been found to have
30-18 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
30-19 that place of business once during the preceding 12 months, the
30-20 comptroller may require the permit holder to pay a fine in an
30-21 amount not to exceed $750; and
30-22 (3) if the permit holder has been found to have
30-23 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
30-24 that place of business at least twice during the preceding 12
30-25 months, the comptroller may require the permit holder to pay a fine
31-1 in an amount not to exceed $1,000 or suspend the permit for that
31-2 place of business for not more than three days.
31-3 (c) Except as provided by Section 155.0593, if the permit
31-4 holder has been found to have violated Section 161.082(b), Health
31-5 and Safety Code, on four or more previous and separate occasions at
31-6 the same place of business during the preceding 12 months, the
31-7 comptroller shall revoke the permit.
31-8 (d) A retailer whose permit has been revoked under this
31-9 section may not apply for a retailer's permit for the same place of
31-10 business before the expiration of six months after the effective
31-11 date of the revocation.
31-12 SECTION 4.09. Subchapter C, Chapter 155, Tax Code, is
31-13 amended by adding Section 155.0593 to read as follows:
31-14 Sec. 155.0593. ACTIONS OF EMPLOYEE. (a) For purposes of
31-15 Subchapter H, Chapter 161, Health and Safety Code, and the
31-16 provisions of this code relating to the sale or delivery of
31-17 cigarettes or tobacco products to a minor, the comptroller may
31-18 suspend a permit but may not revoke the permit under Section
31-19 155.0592 if the comptroller finds that:
31-20 (1) the employer has not violated Section 161.082(b),
31-21 Health and Safety Code, more than seven times at the place of
31-22 business for which the permit is issued in the 24-month period
31-23 preceding the violation in question;
31-24 (2) the employer requires its employees to attend a
31-25 comptroller-approved seller training program;
32-1 (3) the employee has actually attended a
32-2 comptroller-approved seller training program; and
32-3 (4) the employer has not directly or indirectly
32-4 encouraged the employee to violate the law.
32-5 (b) The comptroller shall adopt rules or policies
32-6 establishing the minimum requirements for approved seller training
32-7 programs. On application, the comptroller shall approve seller
32-8 training programs meeting the requirements that are sponsored
32-9 privately or by public community colleges. The comptroller may
32-10 charge an application fee in an amount necessary to defray the
32-11 expense of processing the application.
32-12 (c) The comptroller may approve under this section a seller
32-13 training program sponsored by a permit holder for the purpose of
32-14 training its employees without regard to whether the employees are
32-15 located at the same place of business. This subsection applies
32-16 only to a permit holder who employs at least 100 persons at any one
32-17 time during the permit year who sell cigarettes or tobacco
32-18 products.
32-19 ARTICLE 5. FEDERAL WAIVER; TRANSITION; EFFECTIVE DATE;
32-20 EMERGENCY CLAUSE
32-21 SECTION 5.01. (a) If, before the changes in law made by
32-22 this Act to Subchapter H or K, Chapter 161, Health and Safety Code,
32-23 take effect, the comptroller of public accounts determines that an
32-24 exemption from federal preemption from the federal Food and Drug
32-25 Administration is necessary for implementation, the comptroller
33-1 shall request the exemption and may delay implementing the affected
33-2 provision of law until the exemption is granted.
33-3 (b) If a provision of law affected by a delay in
33-4 implementation under Subsection (a) of this section contains a
33-5 criminal penalty:
33-6 (1) the comptroller of public accounts shall publish
33-7 in the Texas Register notice of:
33-8 (A) the delay in implementation; and
33-9 (B) the grant of an exemption from preemption
33-10 requested under Subsection (a) of this section; and
33-11 (2) the provision takes effect on the 90th day after
33-12 the date that notice of the grant of an exemption is published
33-13 under Paragraph (B) of Subdivision (1) of this subsection.
33-14 SECTION 5.02. (a) Except as provided by Subsection (b) of
33-15 this section, this Act takes effect September 1, 1997.
33-16 (b) Sections 161.083, 161.085, and 161.086, Health and
33-17 Safety Code, and Subchapter N, Chapter 161, Health and Safety Code,
33-18 as added by this Act, take effect January 1, 1998.
33-19 (c) The change in law made by this Act applies only to an
33-20 offense committed on or after the effective date of this Act. For
33-21 purposes of this subsection, an offense is committed before the
33-22 effective date of this Act if any element of the offense occurs
33-23 before that date. An offense committed before the effective date
33-24 of this Act is governed by the law in effect when the offense was
33-25 committed, and the former law is continued in effect for that
34-1 purpose.
34-2 (d) This Act applies to the sale or distribution of coupons,
34-3 cigarettes, or tobacco products on or after the effective date of
34-4 this Act. The sale or distribution of a coupon, cigarette, or
34-5 tobacco product before the effective date of this Act is governed
34-6 by the law in effect when the sale or distribution was made, and
34-7 that law is continued in effect for that purpose.
34-8 (e) The increase in the amount of a fee as provided by
34-9 Section 154.111 or 155.049, Tax Code, as amended by this Act, takes
34-10 effect for and is applicable to the permit years beginning on or
34-11 after March 1, 1998, and June 1, 1998, as applicable.
34-12 SECTION 5.03. Notwithstanding any other law, the
34-13 implementation and execution of the programs established by the
34-14 change in law made by this Act are contingent on the availability
34-15 of funds for those programs, as determined by the comptroller of
34-16 public accounts, from:
34-17 (1) the permit fee imposed on retailers under Chapters
34-18 154 and 155, Tax Code, as amended by this Act; and
34-19 (2) the fee on outdoor advertising of cigarette and
34-20 tobacco products imposed under Subchapter K, Chapter 161, Health
34-21 and Safety Code, as amended by this Act.
34-22 SECTION 5.04. The importance of this legislation and the
34-23 crowded condition of the calendars in both houses create an
34-24 emergency and an imperative public necessity that the
34-25 constitutional rule requiring bills to be read on three several
35-1 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 55 passed the Senate on
April 24, 1997, by a viva-voce vote; and that the Senate concurred
in House amendments on May 28, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 55 passed the House, with
amendments, on May 25, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor