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A BILL TO BE ENTITLED
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AN ACT
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relating to the delivery sale of graffiti materials; providing |
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penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 6, Business & Commerce Code, is amended by |
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adding Chapter 204 to read as follows: |
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CHAPTER 204. DELIVERY SALES OF GRAFFITI-RELATED MATERIALS |
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Sec. 204.001. DEFINITIONS. In this chapter: |
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(1) "Delivery sale" means a sale of graffiti materials |
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to a consumer in this state in which the purchaser submits the order |
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for the sale by means of a telephonic or other method of voice |
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transmission, by using the mails or any other delivery service, or |
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through the Internet or another online service, or the graffiti |
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materials are delivered by use of the mails or another delivery |
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service. A sale of graffiti materials is a delivery sale regardless |
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of whether the seller is located within or without this state. A |
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sale of graffiti materials not for personal use to a person who is a |
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wholesale dealer or a retail dealer is not a delivery sale. |
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(2) "Delivery service" means a person, including the |
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United States Postal Service, that is engaged in the commercial |
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delivery of letters, packages, or other containers. |
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(3) "Graffiti materials" means the following, as |
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defined by Section 28.08, Penal Code: |
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(A) aerosol paint; |
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(B) an indelible marker; or |
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(C) an etching or engraving device. |
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(4) "Shipping container" means a container in which |
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graffiti materials are shipped in connection with a delivery sale. |
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(5) "Shipping documents" means a bill of lading, an |
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airbill, a United States Postal Service form, or any other document |
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used to evidence the undertaking by a delivery service to deliver |
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letters, packages, or other containers. |
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Sec. 204.002. REQUIREMENTS FOR DELIVERY SALES. (a) A |
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person may not make a delivery sale of graffiti materials to an |
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individual who is younger than 21 years of age. |
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(b) A person taking a delivery sale order shall comply with: |
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(1) the age verification requirements prescribed by |
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Section 204.003; |
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(2) the disclosure requirements prescribed by Section |
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204.004; |
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(3) the shipping requirements prescribed by Section |
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204.005; |
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(4) the registration and reporting requirements |
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prescribed by Section 204.006; and |
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(5) each law of this state that generally applies to |
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sales of graffiti materials that occur entirely within this state, |
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including a law imposing a tax. |
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Sec. 204.003. AGE VERIFICATION REQUIREMENTS. (a) A person |
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may not mail or ship graffiti materials in connection with a |
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delivery sale order unless before mailing or shipping the graffiti |
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materials the person accepting the delivery sale order first: |
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(1) obtains from the prospective customer a |
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certification that includes: |
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(A) reliable confirmation that the purchaser is |
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at least 21 years of age; and |
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(B) a statement signed by the prospective |
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purchaser in writing and under penalty of law: |
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(i) certifying the prospective purchaser's |
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address and date of birth; and |
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(ii) confirming that the prospective |
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purchaser understands that signing another person's name to the |
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certification is illegal, that delivery sales of graffiti materials |
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to an individual younger than the age of 21 are illegal under state |
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law, and that the purchase of graffiti materials by an individual |
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under that age is illegal under state law; |
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(2) makes a good faith effort to verify the |
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information contained in the certification provided by the |
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prospective purchaser under Subdivision (1) against a commercially |
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available database or obtains a photocopy or other image of a |
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government-issued identification bearing a photograph of the |
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prospective purchaser and stating the date of birth or age of the |
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prospective purchaser; |
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(3) sends to the prospective purchaser, by e-mail or |
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other means, a notice that complies with Section 204.004; and |
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(4) for an order made over the Internet or as a result |
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of an advertisement, receives payment for the delivery sale from |
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the prospective purchaser by a credit or debit card that has been |
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issued in the purchaser's name or by check. |
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(b) A person taking a delivery sale order may request that a |
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prospective purchaser provide the purchaser's e-mail address. |
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Sec. 204.004. DISCLOSURE REQUIREMENTS. The notice required |
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by Section 204.003(a)(3) must include a prominent and clearly |
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legible statement that: |
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(1) delivery sales of graffiti materials to |
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individuals who are younger than 21 years of age are illegal under |
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state law; and |
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(2) delivery sales of graffiti materials are |
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restricted to those individuals who provide verifiable proof of age |
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in accordance with Section 204.003. |
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Sec. 204.005. SHIPPING REQUIREMENTS. (a) A person who |
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mails or ships graffiti materials in connection with a delivery |
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sale order shall: |
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(1) include as part of the shipping documents a clear |
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and conspicuous statement: "GRAFFITI MATERIALS: TEXAS LAW |
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PROHIBITS SHIPPING TO INDIVIDUALS UNDER 21 YEARS OF AGE"; and |
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(2) use a method of mailing or shipping that obligates |
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the delivery service to require: |
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(A) the purchaser placing the delivery sale |
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order, or an adult who is at least 21 years of age and who resides at |
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the purchaser's address, to sign to accept delivery of the shipping |
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container; and |
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(B) the person signing to accept delivery of the |
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shipping container to provide proof, in the form of a |
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government-issued identification bearing a photograph that the |
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person is: |
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(i) the addressee or an adult who is at |
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least 21 years of age and who resides at the purchaser's address; |
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and |
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(ii) at least 21 years of age if the person |
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appears to be younger than 27 years of age. |
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(b) A person taking a delivery sale order who delivers the |
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graffiti materials without using a third-party delivery service |
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shall comply with the requirements prescribed by this chapter that |
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apply to a delivery service. |
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Sec. 204.006. REGISTRATION AND REPORTING REQUIREMENTS. (a) |
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A person may not make a delivery sale or ship graffiti materials in |
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connection with a delivery sale unless the person first files with |
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the comptroller a statement that includes: |
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(1) the person's name and trade name; and |
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(2) the address of the person's principal place of |
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business and any other place of business, and the person's |
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telephone number and e-mail address. |
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(b) Not later than the 10th day of each month, each person |
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who has made a delivery sale or shipped or delivered graffiti |
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materials in connection with a delivery sale during the previous |
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month shall file with the comptroller a memorandum or a copy of the |
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invoice that provides for each delivery sale: |
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(1) the name, address, telephone number, and e-mail |
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address of the individual to whom the delivery sale was made; |
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(2) the brand or brands of the graffiti materials that |
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were sold; and |
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(3) the quantity of graffiti materials that were sold. |
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Sec. 204.007. GENERAL OFFENSES. (a) A person commits an |
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offense if the person violates a provision of this chapter for which |
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a criminal penalty is not otherwise provided. |
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(b) An offense under Subsection (a) is a misdemeanor |
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punishable by a fine not to exceed $1,000. |
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(c) If it is shown on the trial of a person that the person |
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has previously been convicted of an offense under this section, the |
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offense is a Class B misdemeanor. |
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Sec. 204.008. KNOWING VIOLATION. (a) A person who |
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knowingly violates a provision of this chapter or who knowingly |
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submits a certification under Section 204.003(a)(1) in another |
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person's name commits an offense. |
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(b) An offense under this section is a felony of the third |
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degree. |
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Sec. 204.009. FORFEITURE. (a) Graffiti materials sold or |
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that a person attempted to sell in a delivery sale that does not |
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comply with this chapter are forfeited to the state and shall be |
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destroyed. |
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(b) A fixture, equipment, or other material or personal |
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property on the premises of a person who, with the intent to defraud |
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this state, fails to comply with this chapter is forfeited to the |
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state. |
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Sec. 204.010. ENFORCEMENT. The attorney general or the |
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attorney general's designee may bring an action in a court of this |
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state to prevent or restrain a violation of this chapter by any |
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person or by a person controlling such a person. |
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SECTION 2. Chapter 204, Business & Commerce Code, as added |
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by this Act, applies only to a delivery sale order placed on or |
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after September 1, 2009. |
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SECTION 3. This Act takes effect September 1, 2009. |