1-1 By: Kuempel (Senate Sponsor - Armbrister) H.B. No. 2378
1-2 (In the Senate - Received from the House May 1, 2001;
1-3 May 2, 2001, read first time and referred to Committee on Finance;
1-4 May 9, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 13, Nays 0; May 9, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 2378 By: Truan
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the cigarette tax and providing a penalty.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 154.0415, Tax Code, is amended to read as
1-13 follows:
1-14 Sec. 154.0415. Cigarettes to Which Stamps May Not be
1-15 Affixed. A person may not affix a stamp to a package of cigarettes
1-16 if the package:
1-17 (1) does not comply with the Cigarette Labeling and
1-18 Advertising Act (15 U.S.C. Section 1331 et seq.) for the placement
1-19 of labels, warnings, or any other information for a package of
1-20 cigarettes to be sold within the United States;
1-21 (2) is labeled "For Export Only," "U.S. Tax Exempt,"
1-22 "For Use Outside U.S.," or other wording indicating that the
1-23 manufacturer did not intend that the product be sold in the United
1-24 States;
1-25 (3) has been altered by adding or deleting wording,
1-26 labels, or warnings described in Subdivision (1) or (2);
1-27 (4) has been imported into the United States [after
1-28 January 1, 2000,] in violation of 26 U.S.C. Section 5754; [or]
1-29 (5) in any way violates federal trademark or copyright
1-30 laws; or
1-31 (6) contains cigarettes with respect to which any
1-32 person is not in compliance with 15 U.S.C. Section 1335a, as
1-33 amended, relating to submission of ingredient information to
1-34 federal authorities, 19 U.S.C. Sections 1681-1681b, as amended,
1-35 relating to imports of certain cigarettes, 26 U.S.C. Section 5754,
1-36 as amended, or relating to previously exported tobacco products.
1-37 SECTION 2. Section 154.053, Tax Code, is amended by adding
1-38 Subsection (c) to read as follows:
1-39 (c) The comptroller shall design and furnish stamps in a
1-40 manner that permits identification of the person that affixed the
1-41 stamp to the particular package of cigarettes by means of a number
1-42 or other mark on the stamp. The comptroller shall maintain for at
1-43 least four years the information identifying the person that
1-44 affixed the stamp to each package of cigarettes.
1-45 SECTION 3. Section 154.201, Tax Code, is amended to read as
1-46 follows:
1-47 Sec. 154.201. Record of Purchase or Receipt. Each
1-48 distributor, wholesaler, bonded agent, and export warehouse shall
1-49 keep records at each place of business of all cigarettes purchased
1-50 or received, including records of those cigarettes for which no tax
1-51 is due under federal law. Each retailer shall keep records at a
1-52 single location, which the retailer shall designate as its
1-53 principal place of business in this state, of all cigarettes
1-54 purchased and received. These records must include:
1-55 (1) the name and address of the shipper or carrier and
1-56 the mode of transportation;
1-57 (2) all shipping records or copies of records,
1-58 including invoices, bills of lading, waybills, freight bills, and
1-59 express receipts;
1-60 (3) the date and the name of the place of origin of
1-61 the cigarette shipment;
1-62 (4) the date and the name of the place of arrival of
1-63 the cigarette shipment;
1-64 (5) a statement of the number, kind, and price paid
2-1 for cigarettes, including cigarettes in stamped and unstamped
2-2 packages;
2-3 (6) the name, address, permit number, and tax
2-4 identification number of the seller; [and]
2-5 (7) in the case of a distributor, copies of the
2-6 customs certificates required by 19 U.S.C. Section 1681a(c), as
2-7 amended, for all cigarettes imported into the United States to
2-8 which the distributor has affixed a tax stamp; and
2-9 (8) any other information required by rules of the
2-10 comptroller.
2-11 SECTION 4. Section 154.5025, Tax Code, is amended to read as
2-12 follows:
2-13 Sec. 154.5025. Affixing Stamps to Certain Cigarettes. A
2-14 person commits an offense if the person knowingly affixes stamps to
2-15 cigarettes in violation of Section 154.0415.
2-16 SECTION 5. Subchapter D, Chapter 35, Business & Commerce
2-17 Code, is amended by adding Section 35.49 to read as follows:
2-18 Sec. 35.49. OTHER REMEDIES. (a) A person who sells,
2-19 distributes, or manufactures cigarettes and who sustains direct
2-20 economic or commercial injury as a result of a violation of Section
2-21 154.0415, Tax Code, or Section 48.015, Penal Code, may bring an
2-22 action in good faith for appropriate injunctive relief.
2-23 (b) The remedy provided by this section is in addition to
2-24 any other remedy provided by law.
2-25 SECTION 6. Chapter 48, Penal Code, is amended by adding
2-26 Section 48.015 to read as follows:
2-27 Sec. 48.015. PROHIBITIONS RELATING TO CERTAIN CIGARETTES.
2-28 (a) A person may not acquire, hold, own, possess, or transport for
2-29 sale or distribution in this state or import or cause to be
2-30 imported into this state for sale or distribution in this state:
2-31 (1) cigarettes that do not comply with all applicable
2-32 requirements imposed by or under federal law and implementing
2-33 regulations; or
2-34 (2) cigarettes to which stamps may not be affixed
2-35 under Section 154.0415, Tax Code, other than cigarettes lawfully
2-36 imported or brought into the state for personal use and cigarettes
2-37 lawfully sold or intended to be sold as duty-free merchandise by a
2-38 duty-free sales enterprise in accordance with 19 U.S.C. Section
2-39 1555(b), as amended.
2-40 (b) A person who commits an act prohibited by Subsection
2-41 (a), knowing or having reason to know that the person is doing so,
2-42 is guilty of a Class A misdemeanor.
2-43 SECTION 7. (a) This Act takes effect September 1, 2001.
2-44 (b) Section 35.49, Business & Commerce Code, as added by
2-45 this Act, applies only to a violation to which that section applies
2-46 that occurs on or after the effective date of this Act. A
2-47 violation that occurs before the effective date of this Act is
2-48 governed by the law in effect on the date the violation occurs, and
2-49 the former law is continued in effect for that purpose.
2-50 (c) Section 48.015, Penal Code, as added by this Act,
2-51 applies only to an offense committed on or after the effective date
2-52 of this Act. For purposes of this subsection, an offense is
2-53 committed before the effective date of this Act if any element of
2-54 the offense occurs before that date. An offense committed before
2-55 the effective date of this Act is covered by the law in effect when
2-56 the offense was committed, and the former law is continued in
2-57 effect for that purpose.
2-58 * * * * *