By Kuempel H.B. No. 2378
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the cigarette tax and providing a penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 154.0415, Tax Code, is amended to read as
1-5 follows:
1-6 Sec. 154.0415. Cigarettes to Which Stamps May Not be
1-7 Affixed. A person may not affix a stamp to a package of cigarettes
1-8 if the package:
1-9 (1) does not comply with the Cigarette Labeling and
1-10 Advertising Act (15 U.S.C. Section 1331 et seq.) for the placement
1-11 of labels, warnings, or any other information for a package of
1-12 cigarettes to be sold within the United States;
1-13 (2) is labeled "For Export Only," "U.S. Tax Exempt,"
1-14 "For Use Outside U.S.," or other wording indicating that the
1-15 manufacturer did not intend that the product be sold in the United
1-16 States;
1-17 (3) has been altered by adding or deleting wording,
1-18 labels, or warnings described in Subdivision (1) or (2);
1-19 (4) has been imported into the United States [after
1-20 January 1, 2000,] in violation of 26 U.S.C. Section 5754; [or]
1-21 (5) in any way violates federal trademark or copyright
1-22 laws; or
1-23 (6) contains cigarettes with respect to which any
1-24 person is not in compliance with 15 U.S.C. Section 1335a, as
2-1 amended, relating to submission of ingredient information to
2-2 federal authorities, 19 U.S.C. Sections 1681-1681b, as amended,
2-3 relating to imports of certain cigarettes, 26 U.S.C. Section 5754,
2-4 as amended, relating to previously exported tobacco products, or
2-5 any other federal law or implementing federal regulations.
2-6 SECTION 2. Section 154.053, Tax Code, is amended by adding
2-7 Subsection (c) to read as follows:
2-8 (c) The comptroller shall design and furnish stamps in a
2-9 manner that permits identification of the person that affixed the
2-10 stamp to the particular package of cigarettes by means of a number
2-11 or other mark on the stamp. The comptroller shall maintain for at
2-12 least four years the information identifying the person that
2-13 affixed the stamp to each package of cigarettes.
2-14 SECTION 3. Section 154.201, Tax Code, is amended to read as
2-15 follows:
2-16 Sec. 154.201. Record of Purchase or Receipt. Each
2-17 distributor, wholesaler, bonded agent, and export warehouse shall
2-18 keep records at each place of business of all cigarettes purchased
2-19 or received, including records of those cigarettes for which no tax
2-20 is due under federal law. Each retailer shall keep records at a
2-21 single location, which the retailer shall designate as its
2-22 principal place of business in this state, of all cigarettes
2-23 purchased and received. These records must include:
2-24 (1) the name and address of the shipper or carrier and
2-25 the mode of transportation;
2-26 (2) all shipping records or copies of records,
2-27 including invoices, bills of lading, waybills, freight bills, and
3-1 express receipts;
3-2 (3) the date and the name of the place of origin of
3-3 the cigarette shipment;
3-4 (4) the date and the name of the place of arrival of
3-5 the cigarette shipment;
3-6 (5) a statement of the number, kind, and price paid
3-7 for cigarettes, including cigarettes in stamped and unstamped
3-8 packages;
3-9 (6) the name, address, permit number, and tax
3-10 identification number of the seller; [and]
3-11 (7) in the case of a distributor, copies of the
3-12 customs certificates required by 19 U.S.C. Section 1681a(c), as
3-13 amended, for all cigarettes imported into the United States to
3-14 which the distributor has affixed a tax stamp; and
3-15 (8) any other information required by rules of the
3-16 comptroller.
3-17 SECTION 4. Section 154.5025, Tax Code, is amended to read as
3-18 follows:
3-19 Sec. 154.5025. Affixing Stamps to Certain Cigarettes. A
3-20 person commits an offense if the person knowingly affixes stamps to
3-21 cigarettes in violation of Section 154.0415.
3-22 SECTION 5. Subchapter D, Chapter 35, Business & Commerce
3-23 Code, is amended by adding Section 35.49 to read as follows:
3-24 Sec. 35.49. OTHER REMEDIES. (a) A person who sells,
3-25 distributes, or manufactures cigarettes and who sustains direct
3-26 economic or commercial injury as a result of a violation of Section
3-27 154.0415, Tax Code, or Section 48.015, Penal Code, may bring an
4-1 action in good faith for appropriate injunctive relief.
4-2 (b) The remedy provided by this section is in addition to
4-3 any other remedy provided by law.
4-4 SECTION 6. Chapter 48, Penal Code, is amended by adding
4-5 Section 48.015 to read as follows:
4-6 Sec. 48.015. PROHIBITIONS RELATING TO CERTAIN CIGARETTES.
4-7 (a) A person may not acquire, hold, own, possess, or transport for
4-8 sale or distribution in this state or import or cause to be
4-9 imported into this state for sale or distribution in this state:
4-10 (1) cigarettes that do not comply with all applicable
4-11 requirements imposed by or under federal law and implementing
4-12 regulations; or
4-13 (2) cigarettes to which stamps may not be affixed
4-14 under Section 154.0415, Tax Code, other than cigarettes lawfully
4-15 imported or brought into the state for personal use and cigarettes
4-16 lawfully sold or intended to be sold as duty-free merchandise by a
4-17 duty-free sales enterprise in accordance with 19 U.S.C. Section
4-18 1555(b), as amended.
4-19 (b) A person who commits an act prohibited by Subsection
4-20 (a), knowing or having reason to know that the person is doing so,
4-21 is guilty of a felony punishable by a fine of not more than $5,000
4-22 or imprisonment for not more than five years or both a fine and
4-23 imprisonment.
4-24 SECTION 7. (a) This Act takes effect September 1, 2001.
4-25 (b) Section 35.49, Business & Commerce Code, as added by
4-26 this Act, applies only to a violation to which that section applies
4-27 that occurs on or after the effective date of this Act. A
5-1 violation that occurs before the effective date of this Act is
5-2 governed by the law in effect on the date the violation occurs, and
5-3 the former law is continued in effect for that purpose.
5-4 (c) Section 48.015, Penal Code, as added by this Act,
5-5 applies only to an offense committed on or after the effective date
5-6 of this Act. For purposes of this subsection, an offense is
5-7 committed before the effective date of this Act if any element of
5-8 the offense occurs before that date. An offense committed before
5-9 the effective date of this Act is covered by the law in effect when
5-10 the offense was committed, and the former law is continued in
5-11 effect for that purpose.