1-1 By: Zaffirini, Moncrief, Nelson, Shapleigh S.B. No. 55
1-2 (In the Senate - Filed November 12, 1996; January 14, 1997,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; April 21, 1997, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 11, Nays 0;
1-6 April 21, 1997, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 55 By: Harris
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of the sale, distribution, and use of
1-11 tobacco products; providing penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 ARTICLE 1. DISTRIBUTION OF CIGARETTES OR TOBACCO PRODUCTS
1-14 SECTION 1.01. Subchapter H, Chapter 161, Health and Safety
1-15 Code, is amended to read as follows:
1-16 SUBCHAPTER H. DISTRIBUTION [SALE] OF CIGARETTES OR TOBACCO
1-17 PRODUCTS [TO MINORS]
1-18 Sec. 161.081. DEFINITIONS. In this subchapter:
1-19 (1) "Cigarette" has the meaning assigned by Section
1-20 154.001, Tax Code.
1-21 (2) "Permit holder" has the meaning assigned by
1-22 Section 154.001 or 155.001, Tax Code, as applicable.
1-23 (3) "Retail sale" means a transfer of possession from
1-24 a retailer to a consumer in connection with a purchase, sale, or
1-25 exchange for value of cigarettes or tobacco products.
1-26 (4) "Retailer" has the meaning assigned by Section
1-27 154.001 or 155.001, Tax Code, as applicable.
1-28 (5) "Tobacco product" has the meaning assigned by
1-29 Section 155.001, Tax Code.
1-30 (6) "Wholesaler" has the meaning assigned by Section
1-31 154.001 or 155.001, Tax Code, as applicable.
1-32 Sec. 161.082. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
1-33 PERSONS YOUNGER THAN 18 YEARS OF AGE [MINORS] PROHIBITED; PROOF OF
1-34 AGE REQUIRED. (a) A person commits an offense if the person, with
1-35 criminal negligence [as a commercial enterprise]:
1-36 (1) sells, gives, or causes to be sold or given a
1-37 cigarette or [other] tobacco product to someone who [the person
1-38 knows] is younger than 18 years of age; or
1-39 (2) sells, gives, or causes to be sold or given a
1-40 cigarette or [other] tobacco product to another person who[,
1-41 knowing that the person receiving the cigarette or other tobacco
1-42 product] intends to deliver it to someone who is younger than 18
1-43 years of age.
1-44 (b) A retailer commits an offense if:
1-45 (1) an agent or employee of the retailer commits an
1-46 offense under Subsection (a); and
1-47 (2) the retailer, with criminal negligence, failed to
1-48 prevent the offense through adequate supervision and training of
1-49 the agent or employee.
1-50 (c) An offense under this section is a Class C misdemeanor.
1-51 (d) [(c)] It is a defense to prosecution under Subsection
1-52 (a)(1) [this section] that the person to whom the cigarette or
1-53 [other] tobacco product was sold or given presented to the
1-54 defendant [an] apparently valid proof of [Texas driver's license or
1-55 an] identification.
1-56 (e) A proof of identification satisfies the requirements of
1-57 Subsection (d) if it contains [card, issued by the Department of
1-58 Public Safety and containing] a physical description and photograph
1-59 consistent with the person's appearance, purports [that purported]
1-60 to establish that the person is [was] 18 years of age or older, and
1-61 was issued by a governmental agency. The proof of identification
1-62 may include a driver's license issued by this state or another
1-63 state, a passport, or an identification card issued by a state or
1-64 the federal government.
2-1 (f) It is not a defense to prosecution under this section
2-2 that the retailer complied with the provisions of Section 161.085.
2-3 Sec. 161.083. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
2-4 PERSONS YOUNGER THAN 27 YEARS OF AGE. (a) A person may not sell,
2-5 give, or cause to be sold or given a cigarette or tobacco product
2-6 to someone who is younger than 27 years of age unless the person to
2-7 whom the cigarette or tobacco product was sold or given presents an
2-8 apparently valid proof of identification.
2-9 (b) A retailer shall adequately supervise and train the
2-10 retailer's agents and employees to prevent a violation of
2-11 Subsection (a).
2-12 (c) A proof of identification described by Section
2-13 161.082(e) satisfies the requirements of Subsection (a).
2-14 (d) A person commits an offense if the person violates this
2-15 section. A fine for an offense under this section may be up to
2-16 $100 per violation.
2-17 Sec. 161.084 [161.082]. Warning Notice. (a) Each person
2-18 who sells cigarettes or tobacco products at retail or by vending
2-19 machine shall post a sign in a location that is conspicuous to all
2-20 employees and customers and that is close to the place at which the
2-21 cigarettes or tobacco products may be purchased.
2-22 (b) The sign must include the statement:
2-23 PURCHASING OR ATTEMPTING TO PURCHASE [SALE
2-24 OR PROVISION OF] TOBACCO PRODUCTS BY [TO] A
2-25 MINOR UNDER 18 YEARS OF AGE IS PROHIBITED
2-26 BY LAW. UPON CONVICTION, A CLASS C
2-27 MISDEMEANOR, INCLUDING A [MAXIMUM] FINE OF
2-28 UP TO $500 [$200] MAY BE IMPOSED.
2-29 (c) The comptroller [board] by rule shall determine the
2-30 design and size of the sign.
2-31 (d) The comptroller [department] on request shall provide
2-32 the sign without charge to any person who sells cigarettes or
2-33 tobacco [cigarette] products. The comptroller [department] may
2-34 provide the sign without charge to [cigarette] distributors of
2-35 cigarettes or tobacco products or wholesale dealers of cigarettes
2-36 or tobacco [cigarette] products in this state for distribution to
2-37 persons who sell cigarettes or tobacco [cigarette] products. A
2-38 distributor or wholesale dealer may not charge for distributing a
2-39 sign under this subsection.
2-40 (e) A person commits an offense if the person intentionally
2-41 fails to display a sign as prescribed by this section. An offense
2-42 under this subsection is a Class C misdemeanor.
2-43 Sec. 161.085. NOTIFICATION OF EMPLOYEES AND AGENTS.
2-44 (a) Each permit holder shall notify each individual employed by
2-45 that permit holder who is to be engaged in retail sales of
2-46 cigarettes or tobacco products that state law:
2-47 (1) prohibits the sale or distribution of cigarettes
2-48 or tobacco products to any person who is younger than 18 years of
2-49 age as provided by Section 161.082 and that a violation of this
2-50 provision is a Class C misdemeanor;
2-51 (2) prohibits the sale or distribution of cigarettes
2-52 or tobacco products to any person who is younger than 27 years of
2-53 age unless the person to whom the cigarette or tobacco product is
2-54 sold or given presents an apparently valid proof of identification
2-55 as provided by Section 161.083 and that a violation of this
2-56 provision may result in a fine of up to $100 per violation; and
2-57 (3) requires each person who sells cigarettes or
2-58 tobacco products at retail or by vending machine to post a warning
2-59 notice; requires each employee to ensure that the appropriate sign
2-60 is always properly displayed as provided by Section 161.084, while
2-61 that employee is exercising the employee's duties; and provides
2-62 that an intentional violation of this provision is a Class C
2-63 misdemeanor.
2-64 (b) The notice required by Subsection (a) must be provided
2-65 within 72 hours of the date an individual begins to engage in
2-66 retail sales of tobacco products. The individual shall signify
2-67 that the individual has received the notice required by Subsection
2-68 (a) by signing a form stating that the law has been fully
2-69 explained, that the individual understands the law, and that the
3-1 individual, as a condition of employment, agrees to comply with the
3-2 law.
3-3 (c) Each form signed by an individual under this section
3-4 shall indicate the date of the signature and the current address
3-5 and social security number of the individual. The permit holder
3-6 shall retain the form signed by each individual employed as a
3-7 retail sales clerk until 120 days after the individual has left the
3-8 employer's employ.
3-9 (d) A permit holder required by this section to notify
3-10 employees commits an offense if the permit holder fails, on demand
3-11 of an officer, to provide the notice prescribed by this section.
3-12 An offense under this section is a Class C misdemeanor.
3-13 (e) It is a defense to Subsection (d) to show proof that the
3-14 employee did complete, sign, and date the notice required by
3-15 Subsection (a). Proof must be shown to the comptroller or an agent
3-16 of the comptroller within 72 hours of the offense.
3-17 Sec. 161.086. VENDOR ASSISTED SALES REQUIRED; VENDING
3-18 MACHINES. (a) Except as provided by Subsection (b), a retailer or
3-19 other person may not:
3-20 (1) offer cigarettes or tobacco products for sale in a
3-21 manner that permits a customer direct access to the cigarettes or
3-22 tobacco products; or
3-23 (2) install or maintain a vending machine containing
3-24 cigarettes or tobacco products.
3-25 (b) Subsection (a) does not apply to a facility or business
3-26 that is not open to persons younger than 18 years of age at any
3-27 time.
3-28 (c) The comptroller or a peace officer may, with or without
3-29 a warrant, seize, seal, or disable a vending machine installed or
3-30 maintained in violation of this section. Property seized under
3-31 this subsection must be seized in accordance with, and is subject
3-32 to forfeiture to the state in accordance with, Subchapter H,
3-33 Chapter 154, Tax Code, and Subchapter E, Chapter 155, Tax Code.
3-34 (d) A person commits an offense if the person violates
3-35 Subsection (a). An offense under this subsection is a Class C
3-36 misdemeanor.
3-37 Sec. 161.087. DISTRIBUTION OF CIGARETTES OR TOBACCO
3-38 PRODUCTS. (a) A person may not distribute to persons younger than
3-39 18 years of age:
3-40 (1) a free sample of a cigarette or tobacco product;
3-41 or
3-42 (2) a coupon or other item that the recipient may use
3-43 to receive a free or discounted cigarette or tobacco product or a
3-44 sample cigarette or tobacco product.
3-45 (b) Except as provided by Subsection (c), a permit holder
3-46 may not accept or redeem, offer to accept or redeem, or hire a
3-47 person to accept or redeem a coupon or other item that the
3-48 recipient may use to receive a free or discounted cigarette or
3-49 tobacco product or a sample cigarette or tobacco product if such
3-50 recipient is younger than 18 years of age. No coupons or other
3-51 items that the recipient may use to receive a free or discounted
3-52 cigarette or tobacco product or a sample cigarette or tobacco
3-53 product shall be redeemable through mail or courier delivery.
3-54 (c) Subsections (a)(2) and (b) do not apply to a transaction
3-55 between permit holders unless the transaction is a retail sale.
3-56 (d) A person commits an offense if the person violates this
3-57 section. An offense under this subsection is a Class C
3-58 misdemeanor.
3-59 Sec. 161.088. ENFORCEMENT; UNANNOUNCED INSPECTIONS.
3-60 (a) The comptroller shall enforce this subchapter in partnership
3-61 with county sheriffs and municipal chiefs of police and with their
3-62 cooperation and shall ensure the state's compliance with Section
3-63 1926 of the federal Public Health Service Act (42 U.S.C. Section
3-64 300x-26) and any implementing regulations adopted by the United
3-65 States Department of Health and Human Services. The comptroller
3-66 may not adopt any rules governing the subject matter of this
3-67 subchapter or Subchapter K, N, or O.
3-68 (b) The comptroller may make block grants to counties and
3-69 municipalities to be used by county sheriffs and municipal chiefs
4-1 of police to enforce this subchapter in a manner that can
4-2 reasonably be expected to reduce the extent to which cigarettes and
4-3 tobacco products are sold or distributed to persons who are younger
4-4 than 18 years of age. At least annually, random unannounced
4-5 inspections shall be conducted at various locations where
4-6 cigarettes and tobacco products are sold or distributed to ensure
4-7 compliance with this subchapter. The comptroller shall rely, to
4-8 the fullest extent possible, on sheriffs or chiefs of police or
4-9 their employees to enforce this subchapter.
4-10 (c) The use of a person younger than 18 years of age to act
4-11 as a minor decoy to test compliance with this subchapter shall be
4-12 conducted in such a fashion that promotes fairness. A person may
4-13 be enlisted by the comptroller to act as a minor decoy, only if the
4-14 following requirements are met:
4-15 (1) written parental consent is obtained for the use
4-16 of a person younger than 18 years of age to act as a minor decoy to
4-17 test compliance with this subchapter;
4-18 (2) at the time of the inspection, the minor decoy is
4-19 younger than 17 years of age;
4-20 (3) the minor decoy has an appearance that would cause
4-21 a reasonably prudent seller of tobacco products to request
4-22 identification and proof of age;
4-23 (4) the minor decoy carries either the minor's own
4-24 identification showing the minor's correct date of birth or carries
4-25 no identification and a minor decoy who carries identification
4-26 presents it on request to any seller of tobacco products; and
4-27 (5) the minor decoy answers truthfully any questions
4-28 about the minor's age.
4-29 (d) The comptroller shall annually prepare for submission by
4-30 the governor to the secretary of the United States Department of
4-31 Health and Human Services the report required by Section 1926 of
4-32 the federal Public Health Service Act (42 U.S.C. Section 300x-26).
4-33 Sec. 161.089. PREEMPTION OF LOCAL LAW. This subchapter does
4-34 not preempt a local regulation of the sale, distribution, or use of
4-35 cigarettes or tobacco products or affect the authority of a
4-36 political subdivision to adopt or enforce an ordinance or
4-37 requirement relating to the sale, distribution, or use of
4-38 cigarettes or tobacco products if the regulation, ordinance, or
4-39 requirement:
4-40 (1) is compatible with and equal to or more stringent
4-41 than a requirement prescribed by this subchapter; or
4-42 (2) relates to an issue that is not specifically
4-43 addressed by this subchapter or Chapter 154 or 155, Tax Code.
4-44 Sec. 161.090. REPORTS OF VIOLATION. A local or state law
4-45 enforcement agency or other governmental unit shall notify the
4-46 comptroller, on the 10th day of every month, or the first working
4-47 day thereafter, of any violation of this subchapter that occurred
4-48 in the preceding month that the agency or unit detects,
4-49 investigates, or prosecutes.
4-50 ARTICLE 2. ADVERTISING OF CIGARETTES OR TOBACCO PRODUCTS
4-51 SECTION 2.01. Subchapter K, Chapter 161, Health and Safety
4-52 Code, is amended to read as follows:
4-53 SUBCHAPTER K. PROHIBITION OF CERTAIN CIGARETTE OR TOBACCO
4-54 PRODUCT ADVERTISING
4-55 Sec. 161.121. DEFINITIONS. In this subchapter:
4-56 (1) "Church" means a facility that is owned by a
4-57 religious organization and that is used primarily for religious
4-58 services.
4-59 (2) "Cigarette" has the meaning assigned by Section
4-60 154.001, Tax Code.
4-61 (3) "School" means a private or public elementary or
4-62 secondary school.
4-63 (4) [(3)] "Sign" means an outdoor medium, including a
4-64 structure, display, light device, figure, painting, drawing,
4-65 message, plaque, poster, or billboard, that is:
4-66 (A) used to advertise or inform; and
4-67 (B) visible from the main-traveled way of a
4-68 street or highway.
4-69 (5) [(4)] "Tobacco product" has the meaning assigned
5-1 by Section 155.001, Tax Code.
5-2 Sec. 161.122. ADVERTISING. (a) The comptroller shall
5-3 collect and the advertiser shall remit a fee that shall be 10
5-4 percent of the gross purchase price of any outdoor advertising of
5-5 cigarettes and tobacco products in Texas.
5-6 (b) This fee shall be put into a segregated fund called the
5-7 tobacco education and enforcement fund. Money collected by this
5-8 fund shall be appropriated for enforcement and an education
5-9 advertising campaign.
5-10 Sec. 161.123. PROHIBITION RELATING TO CERTAIN SIGNS;
5-11 EXCEPTIONS. (a) A sign containing an advertisement for cigarettes
5-12 or tobacco products may not be located closer than 1,000 [500] feet
5-13 to a church or school.
5-14 (b) The measurement of the distance between the sign
5-15 containing an advertisement for cigarettes or tobacco products and
5-16 an institution listed in Subsection (a) is from the nearest
5-17 property line of the institution to a point on a street or highway
5-18 closest to the sign, along street lines and in direct lines across
5-19 intersections.
5-20 (c) This section does not apply to[:]
5-21 [(1)] a sign located on or in a facility owned or
5-22 leased by a professional sports franchise or in a facility where
5-23 professional sports events are held at least 10 times during a
5-24 12-month period[; or]
5-25 [(2) a contract for a cigarette or other tobacco
5-26 product advertisement entered into before August 26, 1991].
5-27 (d) In Subsection (c) [(c)(1)], a "facility" includes a
5-28 stadium, arena, or events center and any land or property owned or
5-29 leased by the professional sports franchise that is connected to or
5-30 immediately contiguous to the stadium, arena, or events center.
5-31 ARTICLE 3. YOUTH TOBACCO USE
5-32 SECTION 3.01. Chapter 161, Health and Safety Code, is
5-33 amended by adding Subchapters N and O to read as follows:
5-34 SUBCHAPTER N. TOBACCO USE BY MINORS
5-35 Sec. 161.251. DEFINITIONS. In this subchapter:
5-36 (1) "Cigarette" has the meaning assigned by Section
5-37 154.001, Tax Code.
5-38 (2) "Tobacco product" has the meaning assigned by
5-39 Section 155.001, Tax Code.
5-40 Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR RECEIPT
5-41 OF CIGARETTES OR TOBACCO PRODUCTS BY MINORS PROHIBITED. (a) An
5-42 individual who is younger than 18 years of age commits an offense
5-43 if the individual:
5-44 (1) possesses, purchases, consumes, or accepts a
5-45 cigarette or tobacco product; or
5-46 (2) falsely represents himself or herself to be 18
5-47 years of age or older by displaying proof of age that is false,
5-48 fraudulent, or not actually proof of the individual's own age in
5-49 order to obtain possession of, purchase, or receive a cigarette or
5-50 tobacco product.
5-51 (b) It is an exception to the application of this section
5-52 that the individual younger than 18 years of age possessed the
5-53 cigarette or tobacco product in the presence of:
5-54 (1) an adult parent, a guardian, or a spouse of the
5-55 individual; or
5-56 (2) an employer of the individual, if possession or
5-57 receipt of the tobacco product is required in the performance of
5-58 the employee's duties as an employee.
5-59 (c) It is an exception to the application of this section
5-60 that the individual younger than 18 years of age is participating
5-61 in an inspection or test of compliance in accordance with Section
5-62 161.088.
5-63 (d) An offense under this section is a Class C misdemeanor.
5-64 Sec. 161.253. TOBACCO AWARENESS PROGRAM. (a) On conviction
5-65 of an individual for an offense under Section 161.252, the court
5-66 shall suspend execution of sentence and shall require the defendant
5-67 to attend a tobacco awareness program approved by the comptroller.
5-68 The court may require the parent or guardian of the defendant to
5-69 attend the tobacco awareness program with the defendant.
6-1 (b) On request, a tobacco awareness program may be taught in
6-2 languages other than English.
6-3 (c) If the defendant resides in a rural area of this state
6-4 or another area of this state in which access to a tobacco
6-5 awareness program is not readily available, the court shall require
6-6 the defendant to perform eight to 12 hours of tobacco-related
6-7 community service instead of attending the tobacco awareness
6-8 program.
6-9 (d) The tobacco awareness program and the tobacco-related
6-10 community service are remedial and are not punishment.
6-11 (e) Not later than the 90th day after the date of a
6-12 conviction under Section 161.252, the defendant shall present to
6-13 the court, in the manner required by the court, evidence of
6-14 satisfactory completion of the tobacco awareness program or the
6-15 tobacco-related community service.
6-16 (f) On receipt of the evidence required under Subsection
6-17 (e), the court shall execute the sentence but may reduce the fine
6-18 imposed to not less than half the fine previously imposed by the
6-19 court.
6-20 Sec. 161.254. DRIVER'S LICENSE SUSPENSION OR DENIAL.
6-21 (a) If the defendant does not provide the evidence required under
6-22 Section 161.253(e) within the period specified by that subsection,
6-23 the court shall order the Department of Public Safety to suspend or
6-24 deny issuance of any driver's license or permit to the defendant.
6-25 The order must specify the period of the suspension or denial,
6-26 which may not exceed 180 days after the date of the order.
6-27 (b) The Department of Public Safety shall send to the
6-28 defendant notice of court action under Subsection (a) by certified
6-29 mail, return receipt requested. The notice must include the date
6-30 of the order and the reason for the order and must specify the
6-31 period of the suspension or denial.
6-32 Sec. 161.255. EXPUNGEMENT OF CONVICTION. An individual
6-33 convicted of an offense under Section 161.252 may apply to the
6-34 court to have the conviction expunged. If the court finds that the
6-35 individual satisfactorily completed the tobacco awareness program
6-36 or tobacco-related community service ordered by the court, the
6-37 court shall order the conviction and any complaint, verdict,
6-38 sentence, or other document relating to the offense to be expunged
6-39 from the individual's record and the conviction may not be shown or
6-40 made known for any purpose.
6-41 Sec. 161.256. JURISDICTION OF COURTS. A justice court or
6-42 municipal court may exercise jurisdiction over any matter in which
6-43 a court under this subchapter may:
6-44 (1) impose a requirement that a defendant attend a
6-45 tobacco awareness program or perform tobacco-related community
6-46 service; or
6-47 (2) order the suspension or denial of a driver's
6-48 license or permit.
6-49 Sec. 161.257. APPLICATION OF OTHER LAW. Title 3, Family
6-50 Code, does not apply to a proceeding under this subchapter.
6-51 (Sections 161.258-161.300 reserved for expansion
6-52 SUBCHAPTER O. PREVENTION OF TOBACCO USE BY MINORS
6-53 Sec. 161.301. TOBACCO USE PUBLIC AWARENESS CAMPAIGN.
6-54 (a) The comptroller shall develop and implement a public awareness
6-55 campaign designed to reduce tobacco use by minors in this state.
6-56 The campaign may use advertisements or similar media to provide
6-57 educational information about tobacco use.
6-58 (b) The comptroller may contract with another person to
6-59 develop and implement the public awareness campaign.
6-60 ARTICLE 4. RELATED TAX CODE PROVISIONS
6-61 SECTION 4.01. (a) Subsection (b), Section 154.111, Tax
6-62 Code, is amended to read as follows:
6-63 (b) An application for a permit required by this chapter
6-64 must be accompanied by a fee of:
6-65 (1) $300 [$100] for a bonded agent's permit;
6-66 (2) $300 [$100] for a distributor's permit;
6-67 (3) $200 [$50] for a wholesaler's permit; [and]
6-68 (4) $15 for each permit for a vehicle if the applicant
6-69 is also applying for a permit as a bonded agent, distributor, or
7-1 wholesaler or has received a current permit from the comptroller
7-2 [treasurer] under Sections 154.101 and 154.110; and
7-3 (5) $260 for a retailer's permit.
7-4 (b) Subsection (c), Section 154.111, Tax Code, is repealed.
7-5 SECTION 4.02. Section 154.121, Tax Code, is amended to read
7-6 as follows:
7-7 Sec. 154.121. REVENUE. (a) Except as provided by
7-8 Subsection (b), revenue [Revenue] from the sale of permits to
7-9 distributors, wholesalers, and bonded agents is allocated in the
7-10 same manner as other revenue allocated by Subchapter J.
7-11 (b) Revenue from the sale of retailer's permits shall be
7-12 deposited to the general revenue fund and may be appropriated only
7-13 as provided by this section. The money may be appropriated first
7-14 to the comptroller for administration of licensing of retailers
7-15 under this chapter or Chapter 155.
7-16 (c) If, after any appropriation is made under Subsection
7-17 (b), revenue remains from the sale of retailer's permits, the
7-18 remaining money may be appropriated to the comptroller for
7-19 administration and enforcement of Subchapters H, K, and N, Chapter
7-20 161, Health and Safety Code.
7-21 (d) If, after any appropriation is made under Subsections
7-22 (b) and (c), revenue remains from the sale of retailer's permits,
7-23 the remaining money may be appropriated to the comptroller to
7-24 administer the comptroller's responsibilities under Subchapter O,
7-25 Chapter 161, Health and Safety Code.
7-26 SECTION 4.03. Subchapter D, Chapter 154, Tax Code, is
7-27 amended by adding Section 154.1142 to read as follows:
7-28 Sec. 154.1142. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
7-29 (a) If the comptroller finds, after notice and hearing as provided
7-30 by this subchapter, that a permit holder has violated Subchapter H
7-31 or K, Chapter 161, Health and Safety Code, the comptroller may
7-32 suspend the permit or administratively fine the permit holder as
7-33 follows:
7-34 (1) if the permit holder has not been found to have
7-35 violated Subchapter H or K, Chapter 161, Health and Safety Code,
7-36 during the preceding 12 months, the comptroller may suspend the
7-37 permit for not more than three days or fine the permit holder up to
7-38 $500;
7-39 (2) if the permit holder has been found to have
7-40 violated Subchapter H or K, Chapter 161, Health and Safety Code,
7-41 once before during the preceding 12 months, the comptroller may
7-42 suspend the permit for not more than 10 days or fine the permit
7-43 holder up to $1,000; or
7-44 (3) if the permit holder has been found to have
7-45 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
7-46 least twice before during the preceding 12 months, the comptroller
7-47 may suspend the permit for not more than two months and fine the
7-48 permit holder up to $2,000.
7-49 (b) Notwithstanding Subsection (a), if the permit holder has
7-50 been found to have violated Section 161.082(b), Health and Safety
7-51 Code, on four previous and separate occasions during the preceding
7-52 12 months, the comptroller shall revoke the permit.
7-53 SECTION 4.04. Section 154.504, Tax Code, is amended to read
7-54 as follows:
7-55 Sec. 154.504. POSSESSION OF QUANTITIES LESS THAN INDIVIDUAL
7-56 PACKAGE. A person commits an offense if the person sells
7-57 cigarettes in quantities less than an individual package containing
7-58 at least 20 cigarettes and is subject to a $100 fine.
7-59 SECTION 4.05. (a) Subsection (b), Section 155.049, Tax
7-60 Code, is amended to read as follows:
7-61 (b) An application for a permit required by this chapter
7-62 must be accompanied by a fee of:
7-63 (1) $300 [$100] for a bonded agent's permit;
7-64 (2) $300 [$100] for a distributor's permit;
7-65 (3) $200 [$50] for a wholesaler's permit; [and]
7-66 (4) $15 for each permit for a vehicle if the applicant
7-67 is also applying for a permit as a bonded agent, distributor, or
7-68 wholesaler or has received a current permit from the comptroller
7-69 [treasurer] under Sections 155.041 and 155.048; and
8-1 (5) $260 for a retailer's permit.
8-2 (b) Subsection (c), Section 155.049, Tax Code, is repealed.
8-3 SECTION 4.06. Section 155.058, Tax Code, is amended to read
8-4 as follows:
8-5 Sec. 155.058. REVENUE. (a) Except as provided by
8-6 Subsection (b), revenue [Revenue] from the sale of permits to
8-7 distributors, wholesalers, and bonded agents is allocated in the
8-8 same manner that other revenue is allocated by Subchapter H.
8-9 (b) Revenue from the sale of retailer's permits shall be
8-10 deposited to the general revenue fund and may be appropriated only
8-11 as provided by this section. The money may be appropriated first
8-12 to the comptroller for administration of licensing of retailers
8-13 under this chapter or Chapter 154.
8-14 (c) If, after any appropriation is made under Subsection
8-15 (b), revenue remains from the sale of retailer's permits, the
8-16 remaining money may be appropriated to the comptroller for
8-17 administration and enforcement of Subchapters H, K, and N, Chapter
8-18 161, Health and Safety Code.
8-19 (d) If, after any appropriation is made under Subsections
8-20 (b) and (c), revenue remains from the sale of retailer's permits,
8-21 the remaining money may be appropriated to the comptroller to
8-22 administer the comptroller's responsibilities under Subchapter O,
8-23 Chapter 161, Health and Safety Code.
8-24 SECTION 4.07. Subchapter C, Chapter 155, Tax Code, is
8-25 amended by adding Section 155.0592 to read as follows:
8-26 Sec. 155.0592. DISCIPLINARY ACTION FOR CERTAIN VIOLATIONS.
8-27 (a) If the comptroller finds, after notice and hearing as provided
8-28 by this subchapter, that a permit holder has violated Subchapter H
8-29 or K, Chapter 161, Health and Safety Code, the comptroller may
8-30 suspend the permit or administratively fine the permit holder as
8-31 follows:
8-32 (1) if the permit holder has not been found to have
8-33 violated Subchapter H or K, Chapter 161, Health and Safety Code,
8-34 during the preceding 12 months, the comptroller may suspend the
8-35 permit for not more than three days or fine the permit holder up to
8-36 $500;
8-37 (2) if the permit holder has been found to have
8-38 violated Subchapter H or K, Chapter 161, Health and Safety Code,
8-39 once before during the preceding 12 months, the comptroller may
8-40 suspend the permit for not more than 10 days or fine the permit
8-41 holder up to $1,000; or
8-42 (3) if the permit holder has been found to have
8-43 violated Subchapter H or K, Chapter 161, Health and Safety Code, at
8-44 least twice before during the preceding 12 months, the comptroller
8-45 may suspend the permit for not more than two months and fine the
8-46 permit holder up to $2,000.
8-47 (b) Notwithstanding Subsection (a), if the permit holder has
8-48 been found to have violated Section 161.082(b), Health and Safety
8-49 Code, on four previous and separate occasions during the preceding
8-50 12 months, the comptroller shall revoke the permit.
8-51 ARTICLE 5. FEDERAL WAIVER; TRANSITION; EFFECTIVE DATE;
8-52 EMERGENCY CLAUSE
8-53 SECTION 5.01. (a) If, before the changes in law made by
8-54 this Act to Subchapter H or K, Health and Safety Code, take effect,
8-55 the Texas Board of Health determines that an exemption from federal
8-56 preemption from the federal Food and Drug Administration is
8-57 necessary for implementation, the board shall request the exemption
8-58 and may delay implementing the affected provision of law until the
8-59 exemption is granted.
8-60 (b) If a provision of law affected by a delay in
8-61 implementation under Subsection (a) of this section contains a
8-62 criminal penalty:
8-63 (1) the Texas Board of Health shall publish in the
8-64 Texas Register notice of:
8-65 (A) the delay in implementation; and
8-66 (B) the grant of an exemption from preemption
8-67 requested under Subsection (a); and
8-68 (2) the provision is effective on the 90th day after
8-69 the date that notice of the grant of an exemption is published
9-1 under Paragraph (B) of Subdivision (1) of this subsection.
9-2 SECTION 5.02. (a) Except as provided by Subsection (b) of
9-3 this section, this Act takes effect September 1, 1997.
9-4 (b) Sections 161.083, 161.085, and 161.086, Health and
9-5 Safety Code, and Subchapter N, Chapter 161, Health and Safety Code,
9-6 as added by this Act, take effect January 1, 1998.
9-7 (c) The change in law made by this Act applies only to an
9-8 offense committed on or after the effective date of this Act. For
9-9 purposes of this subsection, an offense is committed before the
9-10 effective date of this Act if any element of the offense occurs
9-11 before that date. An offense committed before the effective date
9-12 of this Act is governed by the law in effect when the offense was
9-13 committed, and the former law is continued in effect for that
9-14 purpose.
9-15 (d) This Act applies to the sale or distribution of coupons,
9-16 cigarettes, or tobacco products on or after the effective date of
9-17 this Act. The sale or distribution of a coupon, cigarette, or
9-18 tobacco product before the effective date of this Act is governed
9-19 by the law in effect when the sale or distribution was made, and
9-20 that law is continued in effect for that purpose.
9-21 (e) The increase in the amount of a fee as provided by
9-22 Subsection (b), Section 154.111 and Subsection (b), Section
9-23 155.049, Tax Code, as amended by this Act, takes effect for and is
9-24 applicable to the permit years beginning on or after March 1, 1998,
9-25 and June 1, 1998, as applicable.
9-26 SECTION 5.03. The importance of this legislation and the
9-27 crowded condition of the calendars in both houses create an
9-28 emergency and an imperative public necessity that the
9-29 constitutional rule requiring bills to be read on three several
9-30 days in each house be suspended, and this rule is hereby suspended.
9-31 * * * * *