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A BILL TO BE ENTITLED
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AN ACT
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relating to the elimination of smoking in all workplaces and public |
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places; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle H, Title 2, Health and Safety Code, is |
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amended by adding Chapter 169 to read as follows: |
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CHAPTER 169. SMOKING PROHIBITED IN PUBLIC PLACES |
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AND PLACES OF EMPLOYMENT |
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Sec. 169.001. DEFINITIONS. In this chapter: |
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(1) "Bar" means an enclosed indoor establishment that |
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is open to the public and is devoted primarily to the sale and |
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service of alcoholic beverages for on-premises consumption. |
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(2) "Business" means: |
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(A) a sole proprietorship, partnership, joint |
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venture, corporation, or other business entity, either for-profit |
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or not-for-profit, including a retail establishment, where goods or |
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services are sold; |
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(B) a professional corporation or other entity |
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where legal, medical, dental, engineering, architectural, or other |
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professional services are delivered; or |
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(C) a private club. |
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(3) "Cigar bar" means a business that: |
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(A) has in excess of 25 percent of gross sales in |
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tobacco products, as that term is defined by Section 155.001, Tax |
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Code; |
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(B) holds a permit under Chapter 155, Tax Code; |
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and |
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(C) holds an alcoholic beverage permit or license |
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under Chapter 25, 28, 32, or 69, Alcoholic Beverage Code, |
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originally issued before May 15, 2007. |
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(4) "Department" means the Department of State Health |
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Services. |
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(5) "Employee" means an individual who: |
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(A) is employed by an employer for direct or |
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indirect monetary wages or profit; or |
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(B) volunteers the individual's services for an |
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employer. |
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(6) "Employer" means a person who employs one or more |
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individuals or uses the volunteer services of one or more |
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individuals. The term includes: |
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(A) a nonprofit entity; |
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(B) the legislative, executive, and judicial |
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branches of state government; and |
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(C) any political subdivision of this state. |
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(7) "Enclosed area" means all space between a floor |
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and ceiling that is enclosed on all sides by solid walls or windows, |
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exclusive of doorways, which extend from the floor to the ceiling. |
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(8) "Health care facility" means an office or |
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institution in which care or treatment is provided for physical, |
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mental, or emotional diseases or other medical, physiological, or |
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psychological conditions. |
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(9) "Place of employment" means an area under the |
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control of an employer that is used by employees of the employer but |
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is not generally open to the public. |
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(10) "Private club" means an organization that: |
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(A) owns, leases, or occupies a building used |
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exclusively for club purposes at all times; |
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(B) is operated solely for a recreational, |
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fraternal, social, patriotic, political, benevolent, or athletic |
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purpose, but not for pecuniary gain; |
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(C) sells alcoholic beverages only incidentally |
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to its operation; |
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(D) is managed by a board of directors or similar |
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body chosen by the members at an annual meeting; |
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(E) has established bylaws or a constitution to |
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govern the club's activities; and |
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(F) is exempt from federal income taxation under |
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Section 501(a), Internal Revenue Code of 1986, as a club described |
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by Section 501(c)(7) of that code. |
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(11) "Public place" means: |
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(A) an enclosed indoor area the public is invited |
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or permitted to enter, including all or part of the following: |
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(i) a restaurant; |
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(ii) a bar; |
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(iii) a retail or service establishment; |
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(iv) a facility of a business or nonprofit |
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entity; |
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(v) a shopping mall; |
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(vi) a convention facility; |
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(vii) a theater or other facility primarily |
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used for exhibiting a performance; |
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(viii) a sports arena; |
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(ix) a health care facility; |
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(x) a licensed child-care or adult day-care |
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facility; |
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(xi) a polling place; |
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(xii) a room in which a public meeting under |
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the control of this state, an agency or branch of government of this |
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state, or a political subdivision of this state is in progress; |
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(xiii) a common area in a multiple-unit |
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residential facility; |
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(xiv) a public transportation facility, |
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including a bus or taxicab, and a ticket, boarding, or waiting area |
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of a public transportation depot; |
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(xv) a waiting room, hallway, room, or ward |
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in a health care facility; |
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(xvi) a restroom, lobby, reception area, |
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service line, hallway, elevator, or other common-use area the |
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public is invited or permitted to enter; or |
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(xvii) a bingo hall; or |
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(B) a facility of the state or of a local |
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government, including a building or vehicle owned, leased, or |
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operated by the state or local government, regardless of whether |
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the public is invited or permitted to enter. |
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(12) "Restaurant" means an enclosed indoor |
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establishment that is open to the public and is devoted primarily to |
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the sale and service of food for immediate consumption. The term |
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includes a bar located at the establishment. |
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(13) "Retail or service establishment" means an |
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establishment that sells goods or services to the public. |
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(14) "Service line" means an indoor line in which one |
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or more persons wait for or receive service, whether or not the |
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service involves the exchange of money. |
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(15) "Shopping mall" means an enclosed public walkway |
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or hall area that connects retail, service, or professional |
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establishments. |
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(16) "Smoke" means to inhale, exhale, burn, or carry a |
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lighted cigar, cigarette, pipe, or other smoking equipment in any |
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manner. |
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(17) "Sports arena" means a place in which a person |
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engages in physical exercise, participates in athletic |
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competition, or witnesses sports or other events. |
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(18) "Tobacco shop" means a business primarily devoted |
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to the sale of tobacco products, as that term is defined by Section |
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155.001, Tax Code, that does not hold an alcoholic beverage permit |
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or license. |
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Sec. 169.002. SMOKING PROHIBITED. A person may not smoke: |
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(1) in a public place or place of employment; |
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(2) within 15 feet of an entrance, operable window, or |
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ventilation system of a public place or place of employment; |
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(3) in the seating area of an outdoor arena, stadium, |
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or amphitheater; or |
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(4) in bleachers or grandstands for use by spectators |
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at a sporting or other public event. |
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Sec. 169.003. EXCEPTIONS. This chapter does not apply to: |
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(1) a private residence, except when used as a |
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child-care, adult day-care, or health care facility; |
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(2) a hotel or motel room rented to a guest and |
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designated as a smoking room, if: |
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(A) not more than 20 percent of rooms rented are |
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designated as smoking rooms; |
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(B) all smoking rooms in the hotel or motel on the |
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same floor are contiguous; |
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(C) smoke from smoking rooms does not enter an |
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area in which smoking is prohibited; and |
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(D) nonsmoking rooms are not converted to smoking |
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rooms; |
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(3) a private or semiprivate room in a nursing home or |
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long-term care facility occupied by one or more persons, all of whom |
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are smokers and have requested in writing to be placed in a room |
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where smoking is permitted, provided that smoke from the room does |
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not enter an area where smoking is prohibited; |
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(4) a tobacco shop; |
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(5) a cigar bar; or |
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(6) a private club that does not employ any employees: |
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(A) unless the club is being used for a function |
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to which the general public is invited; and |
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(B) provided the club is not established for the |
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sole purpose of avoiding compliance with this chapter. |
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Sec. 169.004. DUTIES OF PERSON IN CONTROL OF A PUBLIC PLACE |
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OR PLACE OF EMPLOYMENT. A person in control of a public place or |
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place of employment shall: |
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(1) post clearly and conspicuously in a manner |
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reasonably necessary to give notice to persons entering the public |
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place or place of employment: |
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(A) a sign with the words "NO SMOKING"; or |
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(B) a sign with the international no smoking |
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symbol depicting a burning cigarette overlaid by a red circle with a |
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diagonal line across the cigarette; |
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(2) remove all ashtrays from any area where smoking is |
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prohibited; and |
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(3) make a reasonable effort to request that any |
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person known to be smoking in a prohibited area extinguish the |
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burning tobacco product. |
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Sec. 169.005. DECLARATION OF ESTABLISHMENT AS NONSMOKING. |
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(a) A person in control of an establishment, facility, or outdoor |
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area may declare that entire establishment, facility, or outdoor |
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area as a nonsmoking place. |
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(b) A person may not smoke in a place in which a sign |
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conforming to the requirements of Section 169.004 is posted. |
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Sec. 169.006. ENFORCEMENT. (a) The department, or another |
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state agency, or a political subdivision of the state may enforce |
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this chapter. |
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(b) In enforcing this chapter the department, or another |
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state agency, or a political subdivision of the state may enter and |
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inspect a public place. |
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(c) A person may file a complaint concerning a violation of |
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this chapter with the department or a political subdivision of the |
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state. |
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Sec. 169.007. INJUNCTIVE RELIEF. In addition to the other |
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remedies provided by this chapter, the attorney general or a |
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district, county, or city attorney may bring an action for |
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injunctive relief to enforce this chapter. |
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Sec. 169.008. OFFENSES; PENALTIES. (a) A person who |
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violates Section 169.002, 169.004, or 169.005(b) commits an |
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offense. An offense under this subsection is a misdemeanor |
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punishable by a fine not to exceed $100. |
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(b) If it is shown on the trial of an offense under |
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Subsection (a) that the defendant has previously been finally |
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convicted of an offense under that subsection that occurred within |
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one year before the date of the offense that is the subject of the |
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trial, on conviction the defendant shall be punished by a fine not |
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to exceed $500. |
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(c) If it is shown on the trial of an offense under |
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Subsection (a) that the defendant has previously been finally |
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convicted of two offenses under that subsection that occurred |
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within one year before the date of the offense that is the subject |
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of the trial, on conviction the defendant shall be punished by a |
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fine not to exceed $1,000. |
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Sec. 169.009. SEPARATE VIOLATIONS. Each day on which a |
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violation of this chapter occurs is considered a separate |
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violation. |
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Sec. 169.010. PUBLIC EDUCATION. The department may engage |
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in a program to educate the public about the provisions of this |
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chapter. |
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Sec. 169.011. APPLICABILITY; CONSTRUCTION. (a) This |
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chapter preempts and supersedes a local ordinance, rule, or |
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regulation adopted by any political subdivision that restricts or |
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prohibits smoking to a lesser degree than this chapter. |
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(b) This chapter shall not be construed to permit smoking |
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where it is restricted by other law. |
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(c) This chapter does not preempt or supersede Section |
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38.006, Education Code. |
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SECTION 2. Subchapter C, Chapter 155, Tax Code, is amended |
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by adding Section 155.0482 to read as follows: |
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Sec. 155.0482. DENIAL OF PERMIT TO HOLDERS OF ALCOHOLIC |
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BEVERAGE PERMITS OR LICENSES. The comptroller may not issue a |
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retailer's permit under this chapter to the holder of an alcoholic |
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beverage permit or license under Chapter 25, 28, 32, or 69, |
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Alcoholic Beverage Code. A permit may be issued under this chapter |
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to the holder of an alcoholic beverage permit or license under |
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Chapter 25, 28, 32, or 69, Alcoholic Beverage Code, originally |
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issued before May 15, 2007, if the comptroller determines that the |
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applicant's sales of tobacco products exceed 25 percent of the |
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applicant's gross sales. |
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SECTION 3. The following are repealed: |
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(1) Section 48.01, Penal Code; and |
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(2) Section 2, Chapter 290, Acts of the 64th |
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Legislature, Regular Session, 1975. |
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SECTION 4. The repeal by this Act of Section 48.01, Penal |
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Code, does not apply to an offense committed under that section |
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before the effective date of this Act. An offense committed before |
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that date is covered by the law in effect on the date the offense was |
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committed, and the former law is continued in effect for that |
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purpose. |
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SECTION 5. This Act takes effect September 1, 2007. |