81R21808 JTS-D

By: Menendez H.B. No. 1234

Substitute the following for H.B. No. 1234:

By: Solomons C.S.H.B. No. 1234

A BILL TO BE ENTITLED

AN ACT

relating to the delivery sale of graffiti materials; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 6, Business & Commerce Code, is amended by adding Chapter 204 to read as follows:

CHAPTER 204. DELIVERY SALES OF GRAFFITI-RELATED MATERIALS

Sec. 204.001. DEFINITIONS. In this chapter:

(1) "Delivery sale" means a sale of graffiti materials to a consumer in this state in which the purchaser submits the order for the sale by means of a telephonic or other method of voice transmission, by using the mails or any other delivery service, or through the Internet or another online service, or the graffiti materials are delivered by use of the mails or another delivery service. A sale of graffiti materials is a delivery sale regardless of whether the seller is located within or without this state. A sale of graffiti materials not for personal use to a person who is a wholesale dealer or a retail dealer is not a delivery sale.

(2) "Delivery service" means a person, including the United States Postal Service, that is engaged in the commercial delivery of letters, packages, or other containers.

(3) "Graffiti materials" means the following, as defined by Section 28.08, Penal Code:

(A) aerosol paint;

(B) an indelible marker; or

(C) an etching or engraving device.

(4) "Shipping container" means a container in which graffiti materials are shipped in connection with a delivery sale.

(5) "Shipping documents" means a bill of lading, an airbill, a United States Postal Service form, or any other document used to evidence the undertaking by a delivery service to deliver letters, packages, or other containers.

Sec. 204.002. REQUIREMENTS FOR DELIVERY SALES. (a) A person may not make a delivery sale of graffiti materials to an individual who is younger than 21 years of age.

(b) A person taking a delivery sale order shall comply with:

(1) the age verification requirements prescribed by Section 204.003;

(2) the disclosure requirements prescribed by Section 204.004;

(3) the shipping requirements prescribed by Section 204.005;

(4) the registration and reporting requirements prescribed by Section 204.006; and

(5) each law of this state that generally applies to sales of graffiti materials that occur entirely within this state, including a law imposing a tax.

Sec. 204.003. AGE VERIFICATION REQUIREMENTS. (a) A person may not mail or ship graffiti materials in connection with a delivery sale order unless before mailing or shipping the graffiti materials the person accepting the delivery sale order first:

(1) obtains from the prospective customer a certification that includes:

(A) reliable confirmation that the purchaser is at least 21 years of age; and

(B) a statement signed by the prospective purchaser in writing and under penalty of law:

(i) certifying the prospective purchaser's address and date of birth; and

(ii) confirming that the prospective purchaser understands that signing another person's name to the certification is illegal, that delivery sales of graffiti materials to an individual younger than the age of 21 are illegal under state law, and that the purchase of graffiti materials by an individual under that age is illegal under state law;

(2) makes a good faith effort to verify the information contained in the certification provided by the prospective purchaser under Subdivision (1) against a commercially available database or obtains a photocopy or other image of a government-issued identification bearing a photograph of the prospective purchaser and stating the date of birth or age of the prospective purchaser;

(3) sends to the prospective purchaser, by e-mail or other means, a notice that complies with Section 204.004; and

(4) for an order made over the Internet or as a result of an advertisement, receives payment for the delivery sale from the prospective purchaser by a credit or debit card that has been issued in the purchaser's name or by check.

(b) A person taking a delivery sale order may request that a prospective purchaser provide the purchaser's e-mail address.

Sec. 204.004. DISCLOSURE REQUIREMENTS. The notice required by Section 204.003(a)(3) must include a prominent and clearly legible statement that:

(1) delivery sales of graffiti materials to individuals who are younger than 21 years of age are illegal under state law; and

(2) delivery sales of graffiti materials are restricted to those individuals who provide verifiable proof of age in accordance with Section 204.003.

Sec. 204.005. SHIPPING REQUIREMENTS. (a) A person who mails or ships graffiti materials in connection with a delivery sale order shall:

(1) include as part of the shipping documents a clear and conspicuous statement: "GRAFFITI MATERIALS: TEXAS LAW PROHIBITS SHIPPING TO INDIVIDUALS UNDER 21 YEARS OF AGE"; and

(2) use a method of mailing or shipping that obligates the delivery service to require:

(A) the purchaser placing the delivery sale order, or an adult who is at least 21 years of age and who resides at the purchaser's address, to sign to accept delivery of the shipping container; and

(B) the person signing to accept delivery of the shipping container to provide proof, in the form of a government-issued identification bearing a photograph that the person is:

(i) the addressee or an adult who is at least 21 years of age and who resides at the purchaser's address; and

(ii) at least 21 years of age if the person appears to be younger than 27 years of age.

(b) A person taking a delivery sale order who delivers the graffiti materials without using a third-party delivery service shall comply with the requirements prescribed by this chapter that apply to a delivery service.

Sec. 204.006. REGISTRATION AND REPORTING REQUIREMENTS. (a) A person may not make a delivery sale or ship graffiti materials in connection with a delivery sale unless the person first files with the comptroller a statement that includes:

(1) the person's name and trade name; and

(2) the address of the person's principal place of business and any other place of business, and the person's telephone number and e-mail address.

(b) Not later than the 10th day of each month, each person who has made a delivery sale or shipped or delivered graffiti materials in connection with a delivery sale during the previous month shall file with the comptroller a memorandum or a copy of the invoice that provides for each delivery sale:

(1) the name, address, telephone number, and e-mail address of the individual to whom the delivery sale was made;

(2) the brand or brands of the graffiti materials that were sold; and

(3) the quantity of graffiti materials that were sold.

Sec. 204.007. GENERAL OFFENSES. (a) A person commits an offense if the person violates a provision of this chapter for which a criminal penalty is not otherwise provided.

(b) An offense under Subsection (a) is a misdemeanor punishable by a fine not to exceed $1,000.

(c) If it is shown on the trial of a person that the person has previously been convicted of an offense under this section, the offense is a Class B misdemeanor.

Sec. 204.008. KNOWING VIOLATION. (a) A person who knowingly violates a provision of this chapter or who knowingly submits a certification under Section 204.003(a)(1) in another person's name commits an offense.

(b) An offense under this section is a felony of the third degree.

Sec. 204.009. FORFEITURE. (a) Graffiti materials sold or that a person attempted to sell in a delivery sale that does not comply with this chapter are forfeited to the state and shall be destroyed.

(b) A fixture, equipment, or other material or personal property on the premises of a person who, with the intent to defraud this state, fails to comply with this chapter is forfeited to the state.

Sec. 204.010. ENFORCEMENT. The attorney general or the attorney general's designee may bring an action in a court of this state to prevent or restrain a violation of this chapter by any person or by a person controlling such a person.

SECTION 2. Chapter 204, Business & Commerce Code, as added by this Act, applies only to a delivery sale order placed on or after September 1, 2009.

SECTION 3. This Act takes effect September 1, 2009.