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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.