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78R2229 YDB-D
By: Uresti H.B. No. 342
A BILL TO BE ENTITLED
AN ACT
relating to the sale, distribution, possession, purchase,
consumption, or receipt of cigarettes or tobacco products to or by a
person under 21 years of age; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 161.082, Health and
Safety Code, is amended to read as follows:
Sec. 161.082. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED; PROOF OF AGE
REQUIRED.
SECTION 2. Sections 161.082(a) and (e), Health and Safety
Code, are amended to read as follows:
(a) A person commits an offense if the person, with criminal
negligence:
(1) sells, gives, or causes to be sold or given a
cigarette or tobacco product to someone who is younger than 21 [18]
years of age; or
(2) sells, gives, or causes to be sold or given a
cigarette or tobacco product to another person who intends to
deliver it to someone who is younger than 21 [18] years of age.
(e) A proof of identification satisfies the requirements of
Subsection (d) if it contains a physical description and photograph
consistent with the person's appearance, purports to establish that
the person is 21 [18] years of age or older, and was issued by a
governmental agency. The proof of identification may include a
driver's license issued by this state or another state, a passport,
or an identification card issued by a state or the federal
government.
SECTION 3. Section 161.084(b), Health and Safety Code, is
amended to read as follows:
(b) The sign must include the statement:
PURCHASING OR ATTEMPTING TO PURCHASE TOBACCO PRODUCTS BY A PERSON
[MINOR] UNDER 21 [18] YEARS OF AGE IS PROHIBITED BY LAW. SALE OR
PROVISION OF TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [18]
YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C
MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED.
VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY
CALLING (insert toll-free telephone number).
SECTION 4. Section 161.085(a), Health and Safety Code, is
amended to read as follows:
(a) Each retailer shall notify each individual employed by
that retailer who is to be engaged in retail sales of cigarettes or
tobacco products that state law:
(1) prohibits the sale or distribution of cigarettes
or tobacco products to any person who is younger than 21 [18] years
of age as provided by Section 161.082 and that a violation of that
section is a Class C misdemeanor; and
(2) requires each person who sells cigarettes or
tobacco products at retail or by vending machine to post a warning
notice as provided by Section 161.084, requires each employee to
ensure that the appropriate sign is always properly displayed while
that employee is exercising the employee's duties, and provides
that a violation of Section 161.084 is a Class C misdemeanor.
SECTION 5. Section 161.086(b), Health and Safety Code, is
amended to read as follows:
(b) Subsection (a) does not apply to:
(1) a facility or business that is not open to persons
younger than 21 [18] years of age at any time;
(2) that part of a facility or business that is a
humidor or other enclosure designed to store cigars in a
climate-controlled environment; or
(3) a premises for which a person holds a package store
permit issued under the Alcoholic Beverage Code.
SECTION 6. Sections 161.087(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) A person may not distribute to persons younger than 21
[18] years of age:
(1) a free sample of a cigarette or tobacco product; or
(2) a coupon or other item that the recipient may use
to receive a free or discounted cigarette or tobacco product or a
sample cigarette or tobacco product.
(b) Except as provided by Subsection (c), a permit holder
may not accept or redeem, offer to accept or redeem, or hire a
person to accept or redeem a coupon or other item that the recipient
may use to receive a free or discounted cigarette or tobacco product
or a sample cigarette or tobacco product if the recipient is younger
than 21 [18] years of age. A coupon or other item that such a
recipient may use to receive a free or discounted cigarette or
tobacco product or a sample cigarette or tobacco product may not be
redeemable through mail or courier delivery.
SECTION 7. Sections 161.088(b) and (d), Health and Safety
Code, are amended to read as follows:
(b) The comptroller may make block grants to counties and
municipalities to be used by local law enforcement agencies to
enforce this subchapter in a manner that can reasonably be expected
to reduce the extent to which cigarettes and tobacco products are
sold or distributed to persons who are younger than 21 [18] years of
age. At least annually, random unannounced inspections shall be
conducted at various locations where cigarettes and tobacco
products are sold or distributed to ensure compliance with this
subchapter. The comptroller shall rely, to the fullest extent
possible, on local law enforcement agencies to enforce this
subchapter.
(d) The use of a person younger than 21 [18] years of age to
act as a [minor] decoy to test compliance with this subchapter shall
be conducted in a fashion that promotes fairness. A person may be
enlisted by the comptroller or a local law enforcement agency to act
as a [minor] decoy only if the following requirements are met:
(1) written parental consent is obtained for the use
of a person younger than 18 years of age to act as a [minor] decoy to
test compliance with this subchapter;
(2) at the time of the inspection, the [minor] decoy is
younger than 20 [17] years of age;
(3) the [minor] decoy has an appearance that would
cause a reasonably prudent seller of cigarettes or tobacco products
to request identification and proof of age;
(4) the [minor] decoy carries either the person's
[minor's] own identification showing the person's [minor's] correct
date of birth or carries no identification, and a [minor] decoy who
carries identification presents it on request to any seller of
cigarettes or tobacco products; and
(5) the [minor] decoy answers truthfully any questions
about the person's [minor's] age.
SECTION 8. Section 161.0901(b), Health and Safety Code, is
amended to read as follows:
(b) The report must include, at a minimum:
(1) a baseline of statistics and analysis regarding
retail compliance with this subchapter, Subchapter K, and Chapters
154 and 155, Tax Code;
(2) a baseline of statistics and analysis regarding
illegal tobacco sales, including:
(A) sales to persons younger than 21 years of age
[minors];
(B) enforcement actions concerning persons
younger than 21 years of age [minors]; and
(C) sources of citations;
(3) tobacco controls and initiatives by the Office of
Smoking and Health of the department, or any other state agency,
including an evaluation of the effectiveness of the controls and
initiatives;
(4) the future goals and plans of the Office of Smoking
and Health of the department to decrease the use of tobacco and
tobacco products;
(5) the educational programs of the Office of Smoking
and Health of the department and the effectiveness of those
programs; and
(6) the incidence of use of tobacco and tobacco
products by regions in this state, including use of cigarettes and
tobacco products by ethnicity.
SECTION 9. The heading to Subchapter N, Chapter 161, Health
and Safety Code, is amended to read as follows:
SUBCHAPTER N. TOBACCO USE BY
PERSONS YOUNGER THAN 21 YEARS OF AGE [MINORS]
SECTION 10. Section 161.252, Health and Safety Code, is
amended to read as follows:
Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR
RECEIPT OF CIGARETTES OR TOBACCO PRODUCTS BY PERSONS YOUNGER THAN
21 YEARS OF AGE [MINORS] PROHIBITED. (a) An individual who is
younger than 21 [18] years of age commits an offense if the
individual:
(1) possesses, purchases, consumes, or accepts a
cigarette or tobacco product; or
(2) falsely represents himself or herself to be 21
[18] years of age or older by displaying proof of age that is false,
fraudulent, or not actually proof of the individual's own age in
order to obtain possession of, purchase, or receive a cigarette or
tobacco product.
(b) It is an exception to the application of this section
that the individual younger than 21 [18] years of age possessed the
cigarette or tobacco product in the presence of:
(1) an adult parent, a guardian, or a spouse of the
individual; or
(2) an employer of the individual, if possession or
receipt of the tobacco product is required in the performance of the
employee's duties as an employee.
(c) It is an exception to the application of this section
that the individual younger than 21 [18] years of age is
participating in an inspection or test of compliance in accordance
with Section 161.088.
(d) An offense under this section is punishable by a fine
not to exceed $250.
SECTION 11. Section 154.1143(a), Tax Code, is amended to
read as follows:
(a) For purposes of Subchapter H, Chapter 161, Health and
Safety Code, and the provisions of this code relating to the sale or
delivery of cigarettes or tobacco products to a person younger than
21 years of age [minor], the comptroller may suspend a permit but
may not revoke the permit under Section 154.1142(c) if the
comptroller finds that:
(1) the employer has not violated Section 161.082(b),
Health and Safety Code, more than seven times at the place of
business for which the permit is issued in the 24-month period
preceding the violation in question;
(2) the employer requires its employees to attend a
comptroller-approved seller training program;
(3) the employee has actually attended a
comptroller-approved seller training program; and
(4) the employer has not directly or indirectly
encouraged the employee to violate the law.
SECTION 12. Section 155.0593(a), Tax Code, is amended to
read as follows:
(a) For purposes of Subchapter H, Chapter 161, Health and
Safety Code, and the provisions of this code relating to the sale or
delivery of cigarettes or tobacco products to a person younger than
21 years of age [minor], the comptroller may suspend a permit but
may not revoke the permit under Section 155.0592 if the comptroller
finds that:
(1) the employer has not violated Section 161.082(b),
Health and Safety Code, more than seven times at the place of
business for which the permit is issued in the 24-month period
preceding the violation in question;
(2) the employer requires its employees to attend a
comptroller-approved seller training program;
(3) the employee has actually attended a
comptroller-approved seller training program; and
(4) the employer has not directly or indirectly
encouraged the employee to violate the law.
SECTION 13. (a) The change in law made by this Act applies
only to an offense commiteed on or after the effective date of this
Act. For purposes of this subsection, an offense is committed
before the effective date of this Act if any element of the offense
occurs before that date. An offense committed before the effective
date of this Act is governed by the law in effect when the offense
was committed, and the former law is continued in effect for that
purpose.
(b) This Act applies to the sale, distribution, possession,
purchase, consumption, or receipt of cigarettes or tobacco products
on or after the effective date of this Act. The sale, distribution,
possession, purchase, consumption, or receipt of a cigarette or
tobacco product before the effective date of this Act is governed by
the law in effect when the sale, distribution, possession,
purchase, consumption, or receipt occurred, and that law is
continued in effect for that purpose.
SECTION 14. This Act takes effect September 1, 2003.