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A BILL TO BE ENTITLED
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AN ACT
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relating to regulation of the sale, distribution, possession, use, |
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and advertising of e-cigarettes, cigarettes, and tobacco products; |
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creating criminal offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Subchapter H, Chapter 161, Health |
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and Safety Code, is amended to read as follows: |
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SUBCHAPTER H. DISTRIBUTION OF CIGARETTES, E-CIGARETTES, OR TOBACCO |
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PRODUCTS |
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SECTION 2. Section 161.081, Health and Safety Code, is |
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amended by adding Subdivision (1-a) and amending Subdivisions (3) |
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and (4) to read as follows: |
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(1-a) "E-cigarette" means an electronic cigarette or |
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any other device that simulates smoking by using a mechanical |
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heating element, battery, or electronic circuit to deliver nicotine |
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or other substances to the individual inhaling from the device. The |
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term does not include a prescription medical device unrelated to |
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the cessation of smoking. The term includes: |
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(A) a device described by this subdivision |
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regardless of whether the device is manufactured, distributed, or |
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sold as an e-cigarette, e-cigar, or e-pipe or under another product |
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name or description; and |
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(B) a component, part, or accessory for the |
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device, regardless of whether the component, part, or accessory is |
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sold separately from the device. |
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(3) "Retail sale" means a transfer of possession from |
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a retailer to a consumer in connection with a purchase, sale, or |
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exchange for value of cigarettes, e-cigarettes, or tobacco |
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products. |
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(4) "Retailer" means a person who engages in the |
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practice of selling cigarettes, e-cigarettes, or tobacco products |
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to consumers and includes the owner of a coin-operated cigarette, |
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e-cigarette, or tobacco product vending machine. The term includes |
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a retailer as that term is defined [has the meaning assigned] by |
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Section 154.001 or 155.001, Tax Code, as applicable. |
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SECTION 3. The heading to Section 161.082, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO |
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PRODUCTS TO PERSONS YOUNGER THAN 18 YEARS OF AGE PROHIBITED; PROOF |
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OF AGE REQUIRED. |
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SECTION 4. Sections 161.082(a), (b), and (d), Health and |
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Safety Code, are amended to read as follows: |
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(a) A person commits an offense if the person, with criminal |
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negligence: |
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(1) sells, gives, or causes to be sold or given a |
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cigarette, e-cigarette, or tobacco product to someone who is |
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younger than 18 years of age; or |
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(2) sells, gives, or causes to be sold or given a |
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cigarette, e-cigarette, or tobacco product to another person who |
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intends to deliver it to someone who is younger than 18 years of |
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age. |
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(b) If an offense under this section occurs in connection |
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with a sale by an employee of the owner of a store in which |
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cigarettes, e-cigarettes, or tobacco products are sold at retail, |
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the employee is criminally responsible for the offense and is |
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subject to prosecution. |
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(d) It is a defense to prosecution under Subsection (a)(1) |
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that the person to whom the cigarette, e-cigarette, or tobacco |
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product was sold or given presented to the defendant apparently |
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valid proof of identification. |
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SECTION 5. Section 161.0825(e), Health and Safety Code, is |
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amended to read as follows: |
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(e) It is an affirmative defense to prosecution under |
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Section 161.082 that: |
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(1) a transaction scan device identified a license or |
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certificate as valid and the defendant accessed the information and |
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relied on the results in good faith; or |
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(2) if the defendant is the owner of a store in which |
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cigarettes, e-cigarettes, or tobacco products are sold at retail, |
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the offense under Section 161.082 occurs in connection with a sale |
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by an employee of the owner, and the owner had provided the employee |
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with: |
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(A) a transaction scan device in working |
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condition; and |
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(B) adequate training in the use of the |
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transaction scan device. |
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SECTION 6. The heading to Section 161.083, Health and |
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|
Safety Code, is amended to read as follows: |
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Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO |
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PRODUCTS TO PERSONS YOUNGER THAN 27 YEARS OF AGE. |
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SECTION 7. Section 161.083, Health and Safety Code, is |
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amended by adding Subsection (a-1) and amending Subsections (b) and |
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(c) to read as follows: |
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(a-1) A person may not sell, give, or cause to be sold or |
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given an e-cigarette to someone who is younger than 27 years of age |
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unless the person to whom the e-cigarette was sold or given presents |
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an apparently valid proof of identification. |
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(b) A retailer shall adequately supervise and train the |
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retailer's agents and employees to prevent a violation of |
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Subsections [Subsection] (a) and (a-1). |
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(c) A proof of identification described by Section |
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161.082(e) satisfies the requirements of Subsections [Subsection] |
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(a) and (a-1). |
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SECTION 8. Sections 161.084(a), (b), and (d), Health and |
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|
Safety Code, are amended to read as follows: |
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(a) Each person who sells cigarettes, e-cigarettes, or |
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tobacco products at retail or by vending machine shall post a sign |
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|
in a location that is conspicuous to all employees and customers and |
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that is close to the place at which the cigarettes, e-cigarettes, or |
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tobacco products may be purchased. |
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(b) The sign must include the statement: |
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PURCHASING OR ATTEMPTING TO PURCHASE E-CIGARETTES OR TOBACCO |
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PRODUCTS BY A MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY |
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LAW. SALE OR PROVISION OF E-CIGARETTES OR TOBACCO PRODUCTS TO A |
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MINOR UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, |
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A CLASS C MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE |
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IMPOSED. VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S |
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OFFICE BY CALLING (insert toll-free telephone number). PREGNANT |
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WOMEN SHOULD NOT SMOKE. SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO |
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ARE BORN PREMATURE OR WITH LOW BIRTH WEIGHT. |
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(d) The comptroller on request shall provide the sign |
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without charge to any person who sells cigarettes, e-cigarettes, or |
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tobacco products. The comptroller may provide the sign without |
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charge to distributors of cigarettes, e-cigarettes, or tobacco |
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products or wholesale dealers of cigarettes, e-cigarettes, or |
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tobacco products in this state for distribution to persons who sell |
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cigarettes, e-cigarettes, or tobacco products. A distributor or |
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wholesale dealer may not charge for distributing a sign under this |
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subsection. |
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SECTION 9. Sections 161.085(a) and (b), Health and Safety |
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|
Code, are amended to read as follows: |
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(a) Each retailer shall notify each individual employed by |
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that retailer who is to be engaged in retail sales of cigarettes, |
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|
e-cigarettes, or tobacco products that state law: |
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(1) prohibits the sale or distribution of cigarettes, |
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|
e-cigarettes, or tobacco products to any person who is younger than |
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18 years of age as provided by Section 161.082 and that a violation |
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of that section is a Class C misdemeanor; and |
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(2) requires each person who sells cigarettes, |
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e-cigarettes, or tobacco products at retail or by vending machine |
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to post a warning notice as provided by Section 161.084, requires |
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|
each employee to ensure that the appropriate sign is always |
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properly displayed while that employee is exercising the employee's |
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duties, and provides that a violation of Section 161.084 is a Class |
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C misdemeanor. |
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(b) The notice required by Subsection (a) must be provided |
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within 72 hours of the date an individual begins to engage in retail |
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sales of e-cigarettes or tobacco products. The individual shall |
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|
signify that the individual has received the notice required by |
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|
Subsection (a) by signing a form stating that the law has been fully |
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|
explained, that the individual understands the law, and that the |
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individual, as a condition of employment, agrees to comply with the |
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|
law. |
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SECTION 10. Section 161.086(a), Health and Safety Code, is |
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|
amended to read as follows: |
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(a) Except as provided by Subsection (b), a retailer or |
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|
other person may not: |
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|
(1) offer cigarettes, e-cigarettes, or tobacco |
|
|
products for sale in a manner that permits a customer direct access |
|
|
to the cigarettes, e-cigarettes, or tobacco products; or |
|
|
(2) install or maintain a vending machine containing |
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|
cigarettes, e-cigarettes, or tobacco products. |
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|
SECTION 11. The heading to Section 161.087, Health and |
|
|
Safety Code, is amended to read as follows: |
|
|
Sec. 161.087. DISTRIBUTION OF CIGARETTES, E-CIGARETTES, OR |
|
|
TOBACCO PRODUCTS. |
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SECTION 12. Sections 161.087(a) and (b), Health and Safety |
|
|
Code, are amended to read as follows: |
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(a) A person may not distribute to persons younger than 18 |
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|
years of age: |
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(1) a free sample of a cigarette, e-cigarette, or |
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|
tobacco product; or |
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|
(2) a coupon or other item that the recipient may use |
|
|
to receive a free or discounted cigarette, e-cigarette, or tobacco |
|
|
product or a sample cigarette, e-cigarette, or tobacco product. |
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(b) Except as provided by Subsection (c), a person, |
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|
including a permit holder, may not accept or redeem, offer to accept |
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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, e-cigarette, or tobacco product or a sample cigarette, |
|
|
e-cigarette, or tobacco product if the recipient is younger than 18 |
|
|
years of age. A coupon or other item that such a recipient may use |
|
|
to receive a free or discounted cigarette, e-cigarette, or tobacco |
|
|
product or a sample cigarette, e-cigarette, or tobacco product may |
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|
not be redeemable through mail or courier delivery. |
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|
SECTION 13. Subchapter H, Chapter 161, Health and Safety |
|
|
Code, is amended by adding Section 161.0875 to read as follows: |
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|
Sec. 161.0875. SALE OF E-CIGARETTE NICOTINE CONTAINERS. |
|
|
(a) A person may not sell or cause to be sold a container that |
|
|
contains liquid with nicotine and that is an accessory for an |
|
|
e-cigarette unless: |
|
|
(1) the container satisfies the child-resistant |
|
|
effectiveness standards under 16 C.F.R. Section 1700.15(b)(1) when |
|
|
tested in accordance with the method described by 16 C.F.R. Section |
|
|
1700.20; or |
|
|
(2) the container is a cartridge that is prefilled and |
|
|
sealed by the manufacturer and is not intended to be opened by a |
|
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consumer. |
|
|
(b) If the federal government adopts standards for the |
|
|
packaging of a container described by Subsection (a), a person who |
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|
complies with those standards is considered to be in compliance |
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|
with this section. |
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|
SECTION 14. 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 and Subchapter R in a manner that can |
|
|
reasonably be expected to reduce the extent to which cigarettes, |
|
|
e-cigarettes, and tobacco products are sold or distributed, |
|
|
including by delivery sale, to persons who are younger than 18 |
|
|
years of age. At least annually, random unannounced inspections |
|
|
shall be conducted at various locations where cigarettes, |
|
|
e-cigarettes, and tobacco products are sold or distributed, |
|
|
including by delivery sale, to ensure compliance with this |
|
|
subchapter and Subchapter R. The comptroller shall rely, to the |
|
|
fullest extent possible, on local law enforcement agencies to |
|
|
enforce this subchapter and Subchapter R. |
|
|
(d) The use of a person younger than 18 years of age to act |
|
|
as a minor decoy to test compliance with this subchapter and |
|
|
Subchapter R 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 and Subchapter R; |
|
|
(2) at the time of the inspection, order, or delivery, |
|
|
the minor decoy is younger than 17 years of age; |
|
|
(3) the minor decoy has an appearance that would cause |
|
|
a reasonably prudent seller of cigarettes, e-cigarettes, or tobacco |
|
|
products to request identification and proof of age; |
|
|
(4) the minor decoy carries either the minor's own |
|
|
identification showing the 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 or any person who delivers |
|
|
cigarettes, e-cigarettes, or tobacco products; and |
|
|
(5) the minor decoy answers truthfully any questions |
|
|
about the minor's age at the time of the inspection, order, or |
|
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delivery. |
|
|
SECTION 15. Subchapter H, Chapter 161, Health and Safety |
|
|
Code, is amended by adding Section 161.0902 to read as follows: |
|
|
Sec. 161.0902. E-CIGARETTE REPORT. (a) Not later than |
|
|
January 5th of each odd-numbered year, the department shall report |
|
|
to the governor, lieutenant governor, and speaker of the house of |
|
|
representatives on the status of the use of e-cigarettes in this |
|
|
state. |
|
|
(b) The report must include, at a minimum: |
|
|
(1) a baseline of statistics and analysis regarding |
|
|
retail compliance with this subchapter and Subchapter R; |
|
|
(2) a baseline of statistics and analysis regarding |
|
|
illegal e-cigarette sales, including: |
|
|
(A) sales to minors; |
|
|
(B) enforcement actions concerning minors; and |
|
|
(C) sources of citations; |
|
|
(3) e-cigarette controls and initiatives by 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 department to |
|
|
decrease the use of e-cigarettes; |
|
|
(5) the educational programs of the department and the |
|
|
effectiveness of those programs; and |
|
|
(6) the incidence of use of e-cigarettes by regions in |
|
|
this state, including use of e-cigarettes by ethnicity. |
|
|
(c) The department may include the report required by this |
|
|
section with a similar report for cigarettes or tobacco products |
|
|
required by law. |
|
|
SECTION 16. The heading to Subchapter N, Chapter 161, |
|
|
Health and Safety Code, is amended to read as follows: |
|
|
SUBCHAPTER N. E-CIGARETTE AND TOBACCO USE BY MINORS |
|
|
SECTION 17. Section 161.251, Health and Safety Code, is |
|
|
amended by adding Subdivision (1-a) to read as follows: |
|
|
(1-a) "E-cigarette" has the meaning assigned by |
|
|
Section 161.081. |
|
|
SECTION 18. The heading to Section 161.252, Health and |
|
|
Safety Code, is amended to read as follows: |
|
|
Sec. 161.252. POSSESSION, PURCHASE, CONSUMPTION, OR |
|
|
RECEIPT OF CIGARETTES, E-CIGARETTES, OR TOBACCO PRODUCTS BY MINORS |
|
|
PROHIBITED. |
|
|
SECTION 19. Sections 161.252(a) and (b), Health and Safety |
|
|
Code, are amended to read as follows: |
|
|
(a) An individual who is younger than 18 years of age |
|
|
commits an offense if the individual: |
|
|
(1) possesses, purchases, consumes, or accepts a |
|
|
cigarette, e-cigarette, or tobacco product; or |
|
|
(2) falsely represents himself or herself to be 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, |
|
|
e-cigarette, or tobacco product. |
|
|
(b) It is an exception to the application of this section |
|
|
that the individual younger than 18 years of age possessed the |
|
|
cigarette, e-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 e-cigarette or tobacco product is required in the |
|
|
performance of the employee's duties as an employee. |
|
|
SECTION 20. The heading to Section 161.253, Health and |
|
|
Safety Code, is amended to read as follows: |
|
|
Sec. 161.253. E-CIGARETTE AND TOBACCO AWARENESS PROGRAM; |
|
|
COMMUNITY SERVICE. |
|
|
SECTION 21. Sections 161.253(a), (b), (c), (d), and (e), |
|
|
Health and Safety Code, are amended to read as follows: |
|
|
(a) On conviction of an individual for an offense under |
|
|
Section 161.252, the court shall suspend execution of sentence and |
|
|
shall require the defendant to attend an e-cigarette and [a] |
|
|
tobacco awareness program approved by the commissioner. The court |
|
|
may require the parent or guardian of the defendant to attend the |
|
|
e-cigarette and tobacco awareness program with the defendant. |
|
|
(b) On request, an e-cigarette and [a] tobacco awareness |
|
|
program may be taught in languages other than English. |
|
|
(c) If the defendant resides in a rural area of this state or |
|
|
another area of this state in which access to an e-cigarette and [a] |
|
|
tobacco awareness program is not readily available, the court shall |
|
|
require the defendant to perform eight to 12 hours of e-cigarette- |
|
|
and tobacco-related community service instead of attending the |
|
|
e-cigarette and tobacco awareness program. |
|
|
(d) The e-cigarette and tobacco awareness program and the |
|
|
e-cigarette- and tobacco-related community service are remedial |
|
|
and are not punishment. |
|
|
(e) Not later than the 90th day after the date of a |
|
|
conviction under Section 161.252, the defendant shall present to |
|
|
the court, in the manner required by the court, evidence of |
|
|
satisfactory completion of the e-cigarette and tobacco awareness |
|
|
program or the e-cigarette- and tobacco-related community service. |
|
|
SECTION 22. Section 161.255(a), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(a) An individual convicted of an offense under Section |
|
|
161.252 may apply to the court to have the conviction expunged. If |
|
|
the court finds that the individual satisfactorily completed the |
|
|
e-cigarette and tobacco awareness program or e-cigarette- and |
|
|
tobacco-related community service ordered by the court, the court |
|
|
shall order the conviction and any complaint, verdict, sentence, or |
|
|
other document relating to the offense to be expunged from the |
|
|
individual's record and the conviction may not be shown or made |
|
|
known for any purpose. |
|
|
SECTION 23. Section 161.256, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 161.256. JURISDICTION OF COURTS. A justice court or |
|
|
municipal court may exercise jurisdiction over any matter in which |
|
|
a court under this subchapter may: |
|
|
(1) impose a requirement that a defendant attend an |
|
|
e-cigarette and [a] tobacco awareness program or perform |
|
|
e-cigarette- and tobacco-related community service; or |
|
|
(2) order the suspension or denial of a driver's |
|
|
license or permit. |
|
|
SECTION 24. The heading to Subchapter O, Chapter 161, |
|
|
Health and Safety Code, is amended to read as follows: |
|
|
SUBCHAPTER O. PREVENTION OF TOBACCO AND E-CIGARETTE USE BY MINORS |
|
|
SECTION 25. The heading to Section 161.301, Health and |
|
|
Safety Code, is amended to read as follows: |
|
|
Sec. 161.301. TOBACCO AND E-CIGARETTE USE PUBLIC AWARENESS |
|
|
CAMPAIGN. |
|
|
SECTION 26. Section 161.301(a), Health and Safety Code, as |
|
|
amended by S.B. 219, Acts of the 84th Legislature, Regular Session, |
|
|
2015, is amended to read as follows: |
|
|
(a) The department shall develop and implement a public |
|
|
awareness campaign designed to reduce the [tobacco] use by minors |
|
|
in this state of tobacco and e-cigarettes as defined by Section |
|
|
161.081. The campaign may use advertisements or similar media to |
|
|
provide educational information about tobacco and e-cigarette use. |
|
|
SECTION 27. Section 161.302(a), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(a) The entity administering Section 161.301 shall also |
|
|
develop and implement a grant program to support youth groups that |
|
|
include as a part of the group's program components related to |
|
|
reduction of [tobacco] use by the group's members of tobacco and |
|
|
e-cigarettes as defined by Section 161.081. |
|
|
SECTION 28. Subchapter P, Chapter 161, Health and Safety |
|
|
Code, is amended by adding Section 161.356 to read as follows: |
|
|
Sec. 161.356. COMPLIANCE WITH FEDERAL LAW. A person is |
|
|
considered to have complied with this subchapter if the person |
|
|
complies with Subchapter IX of 21 U.S.C. Chapter 9 and rules adopted |
|
|
under that subchapter. |
|
|
SECTION 29. The heading to Subchapter R, Chapter 161, |
|
|
Health and Safety Code, is amended to read as follows: |
|
|
SUBCHAPTER R. DELIVERY SALES OF CIGARETTES AND E-CIGARETTES |
|
|
SECTION 30. Section 161.451, Health and Safety Code, is |
|
|
amended by amending Subdivisions (1) and (3) and adding Subdivision |
|
|
(2-a) to read as follows: |
|
|
(1) "Delivery sale" means a sale of cigarettes or |
|
|
e-cigarettes 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 on-line |
|
|
service, or the cigarettes or e-cigarettes are delivered by use of |
|
|
the mails or another delivery service. A sale of cigarettes or |
|
|
e-cigarettes is a delivery sale regardless of whether the seller is |
|
|
located within or without this state. A sale of cigarettes or |
|
|
e-cigarettes not for personal consumption to a person who is a |
|
|
wholesale dealer or a retail dealer is not a delivery sale. |
|
|
(2-a) "E-cigarette" has the meaning assigned by |
|
|
Section 161.081. |
|
|
(3) "Shipping container" means a container in which |
|
|
cigarettes or e-cigarettes are shipped in connection with a |
|
|
delivery sale. |
|
|
SECTION 31. Section 161.452, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 161.452. REQUIREMENTS FOR DELIVERY SALES. (a) A |
|
|
person may not make a delivery sale of cigarettes or e-cigarettes to |
|
|
an individual who is under the age prescribed by Section 161.082. |
|
|
(b) A person taking a delivery sale order of cigarettes |
|
|
shall comply with: |
|
|
(1) the age verification requirements prescribed by |
|
|
Section 161.453; |
|
|
(2) the disclosure requirements prescribed by Section |
|
|
161.454; |
|
|
(3) the shipping requirements prescribed by Section |
|
|
161.455; |
|
|
(4) the registration and reporting requirements |
|
|
prescribed by Section 161.456; |
|
|
(5) the tax collection requirements prescribed by |
|
|
Section 161.457; and |
|
|
(6) each law of this state that generally applies to |
|
|
sales of cigarettes that occur entirely within this state, |
|
|
including a law: |
|
|
(A) imposing a tax; or |
|
|
(B) prescribing a permitting or tax-stamping |
|
|
requirement. |
|
|
(c) A person taking a delivery sale order of e-cigarettes |
|
|
shall comply with: |
|
|
(1) the age verification requirements prescribed by |
|
|
Section 161.453; |
|
|
(2) the disclosure requirements prescribed by Section |
|
|
161.454; |
|
|
(3) the shipping requirements prescribed by Section |
|
|
161.455; |
|
|
(4) the registration and reporting requirements |
|
|
prescribed by Section 161.456; and |
|
|
(5) each law of this state that generally applies to |
|
|
sales of e-cigarettes that occur entirely within this state. |
|
|
SECTION 32. Section 161.453, Health and Safety Code, is |
|
|
amended by adding Subsections (c) and (d) to read as follows: |
|
|
(c) A person may not mail or ship e-cigarettes in connection |
|
|
with a delivery sale order unless before accepting a delivery sale |
|
|
order the person verifies that the prospective purchaser is at |
|
|
least 18 years of age through a commercially available database or |
|
|
aggregate of databases that is regularly used for the purpose of age |
|
|
and identity verification. After the order is accepted, the person |
|
|
must use a method of mailing or shipping that requires an adult |
|
|
signature. |
|
|
(d) A retailer in this state that otherwise complies with |
|
|
applicable laws relating to retail sales and primarily sells |
|
|
e-cigarettes may comply with Subsection (c) by: |
|
|
(1) verifying the age of the prospective purchaser |
|
|
with a commercially available database or 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; |
|
|
(2) obtaining a written statement signed by the |
|
|
prospective purchaser, under penalty of law, certifying the |
|
|
prospective purchaser's address and date of birth; and |
|
|
(3) receiving payment for the delivery sale from the |
|
|
prospective purchaser by a credit card or debit card that has been |
|
|
issued in the prospective purchaser's name or by a check that is |
|
|
associated with a bank account in the prospective purchaser's name. |
|
|
SECTION 33. Section 161.454, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 161.454. DISCLOSURE REQUIREMENTS. (a) The notice |
|
|
required by Section 161.453(a)(3) for a delivery sale of cigarettes |
|
|
must include a prominent and clearly legible statement that: |
|
|
(1) cigarette sales to individuals who are below the |
|
|
age prescribed by Section 161.082 are illegal under state law; |
|
|
(2) sales of cigarettes are restricted to those |
|
|
individuals who provide verifiable proof of age in accordance with |
|
|
Section 161.453; and |
|
|
(3) cigarette sales are taxable under Chapter 154, Tax |
|
|
Code, and an explanation of how that tax has been or is to be paid |
|
|
with respect to the delivery sale. |
|
|
(b) A delivery sale of an e-cigarette must include a |
|
|
prominent and clearly legible statement that: |
|
|
(1) e-cigarette sales to individuals younger than the |
|
|
age prescribed by Section 161.082 are illegal under state law; and |
|
|
(2) e-cigarette sales are restricted to individuals |
|
|
who provide verifiable proof of age in accordance with Section |
|
|
161.453. |
|
|
SECTION 34. Section 161.455, Health and Safety Code, is |
|
|
amended by adding Subsection (a-1) and amending Subsection (b) to |
|
|
read as follows: |
|
|
(a-1) A person who mails or ships e-cigarettes in connection |
|
|
with a delivery sale order shall include as part of the shipping |
|
|
documents a clear and conspicuous statement: "E-CIGARETTES: TEXAS |
|
|
LAW PROHIBITS SHIPPING TO INDIVIDUALS YOUNGER THAN 18 YEARS OF AGE |
|
|
AND REQUIRES PAYMENT OF ALL APPLICABLE TAXES." |
|
|
(b) A person taking a delivery sale order who delivers the |
|
|
cigarettes or e-cigarettes without using a third-party delivery |
|
|
service shall comply with the delivery requirements prescribed by |
|
|
this subchapter that apply to a delivery service. |
|
|
SECTION 35. Section 161.456, Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
Sec. 161.456. REGISTRATION AND REPORTING REQUIREMENTS. (a) |
|
|
A person may not make a delivery sale or ship cigarettes or |
|
|
e-cigarettes 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) Except as provided by Subsection (d), not [Not] later |
|
|
than the 10th day of each month, each person who has made a delivery |
|
|
sale or shipped or delivered cigarettes or e-cigarettes 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 cigarettes or |
|
|
e-cigarettes that were sold; and |
|
|
(3) the quantity of cigarettes or e-cigarettes that |
|
|
were sold. |
|
|
(c) With respect to cigarettes, a [A] person who complies |
|
|
with 15 U.S.C. Section 376, as amended, is considered to have |
|
|
complied with this section. |
|
|
(d) A person is exempt from the requirement of filing with |
|
|
the comptroller a memorandum or a copy of an invoice under |
|
|
Subsection (b) if, in the two years preceding the date the report is |
|
|
due, the person has not violated this subchapter and has not been |
|
|
reported under Section 161.090 to the comptroller as having |
|
|
violated Subchapter H. |
|
|
(e) A person required to submit a memorandum or a copy of an |
|
|
invoice under Subsection (b) shall submit a memorandum or a copy of |
|
|
an invoice to the comptroller for each delivery sale of a cigarette |
|
|
or e-cigarette in the previous two years unless the person has |
|
|
previously submitted the memorandum or copy to the comptroller. |
|
|
(f) A person shall maintain records of compliance with this |
|
|
section until at least the fourth anniversary of the date the record |
|
|
was prepared. |
|
|
SECTION 36. Section 161.461(a), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(a) Cigarettes or e-cigarettes sold or that a person |
|
|
attempted to sell in a delivery sale that does not comply with this |
|
|
subchapter are forfeited to the state and shall be destroyed. |
|
|
SECTION 37. Section 28.004(k), Education Code, is amended |
|
|
to read as follows: |
|
|
(k) A school district shall publish in the student handbook |
|
|
and post on the district's Internet website, if the district has an |
|
|
Internet website: |
|
|
(1) a statement of the policies adopted to ensure that |
|
|
elementary school, middle school, and junior high school students |
|
|
engage in at least the amount and level of physical activity |
|
|
required by Section 28.002(l); |
|
|
(2) a statement of: |
|
|
(A) the number of times during the preceding year |
|
|
the district's school health advisory council has met; |
|
|
(B) whether the district has adopted and enforces |
|
|
policies to ensure that district campuses comply with agency |
|
|
vending machine and food service guidelines for restricting student |
|
|
access to vending machines; and |
|
|
(C) whether the district has adopted and enforces |
|
|
policies and procedures that prescribe penalties for the use of |
|
|
e-cigarettes, as defined by Section 38.006, and tobacco products by |
|
|
students and others on school campuses or at school-sponsored or |
|
|
school-related activities; and |
|
|
(3) a statement providing notice to parents that they |
|
|
can request in writing their child's physical fitness assessment |
|
|
results at the end of the school year. |
|
|
SECTION 38. Section 38.006, Education Code, is amended to |
|
|
read as follows: |
|
|
Sec. 38.006. E-CIGARETTES AND TOBACCO PRODUCTS ON SCHOOL |
|
|
PROPERTY. (a) In this section, "e-cigarette" has the meaning |
|
|
assigned by Section 161.081, Health and Safety Code. |
|
|
(b) The board of trustees of a school district shall: |
|
|
(1) prohibit smoking or using e-cigarettes or tobacco |
|
|
products at a school-related or school-sanctioned activity on or |
|
|
off school property; |
|
|
(2) prohibit students from possessing e-cigarettes or |
|
|
tobacco products at a school-related or school-sanctioned activity |
|
|
on or off school property; and |
|
|
(3) ensure that school personnel enforce the policies |
|
|
on school property. |
|
|
SECTION 39. Section 48.01, Penal Code, is amended by |
|
|
amending Subsections (a), (c), (d), and (e) and adding Subsection |
|
|
(a-1) to read as follows: |
|
|
(a) In this section, "e-cigarette" has the meaning assigned |
|
|
by Section 161.081, Health and Safety Code. |
|
|
(a-1) A person commits an offense if the person [he] is in |
|
|
possession of a burning tobacco product, [or] smokes tobacco, or |
|
|
operates an e-cigarette in a facility of a public primary or |
|
|
secondary school or an elevator, enclosed theater or movie house, |
|
|
library, museum, hospital, transit system bus, [or] intrastate bus, |
|
|
[as defined by Section 541.201, Transportation Code,] plane, or |
|
|
train which is a public place. |
|
|
(c) All conveyances and public places set out in Subsection |
|
|
(a-1) [(a) of Section 48.01] shall be equipped with facilities for |
|
|
extinguishment of smoking materials and it shall be a defense to |
|
|
prosecution under this section if the conveyance or public place |
|
|
within which the offense takes place is not so equipped. |
|
|
(d) It is an exception to the application of Subsection |
|
|
(a-1) [(a)] if the person is in possession of the burning tobacco |
|
|
product, [or] smokes tobacco, or operates the e-cigarette |
|
|
exclusively within an area designated for smoking tobacco or |
|
|
operating an e-cigarette or as a participant in an authorized |
|
|
theatrical performance. |
|
|
(e) An area designated for smoking tobacco or operating an |
|
|
e-cigarette on a transit system bus or intrastate plane or train |
|
|
must also include the area occupied by the operator of the transit |
|
|
system bus, plane, or train. |
|
|
SECTION 40. Sections 161.082(a) and 161.252(a), Health and |
|
|
Safety Code, as amended by this Act, and Section 48.01, Penal Code, |
|
|
as amended by this Act, apply only to an offense committed on or |
|
|
after October 1, 2015. An offense committed before that date is |
|
|
governed by the law in effect on the date the offense was committed, |
|
|
and the former law is continued in effect for that purpose. For |
|
|
purposes of this section, an offense was committed before October |
|
|
1, 2015, if any element of the offense occurred before that date. |
|
|
SECTION 41. (a) The comptroller shall develop the sign |
|
|
described by Section 161.084, Health and Safety Code, as amended by |
|
|
this Act, and make the sign available to the public not later than |
|
|
September 15, 2015. |
|
|
(b) This section takes effect September 1, 2015. |
|
|
SECTION 42. Except as otherwise provided by this Act, this |
|
|
Act takes effect October 1, 2015. |