Bill Text: TX SB268 | 2011-2012 | 82nd Legislature | Introduced

---

Bill Title: Relating to the distribution, possession, purchase, consumption, receipt, and taxation of tobacco products; providing penalties.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2011-04-28 - Left pending in committee [SB268 Detail]

Download: Texas-2011-SB268-Introduced.html

---

82R1990 YDB-D
By: Uresti S.B. No. 268

A BILL TO BE ENTITLED
AN ACT
relating to the distribution, possession, purchase, consumption,
receipt, and taxation of tobacco products; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 161.081, Health and Safety Code, is
amended by adding Subdivision (1-a) to read as follows:
(1-a) "Minor" means a person under 19 years of age.
SECTION 2. The heading to Section 161.082, Health and
Safety Code, is amended to read as follows:
Sec. 161.082. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
PERSONS YOUNGER THAN 19 [18] YEARS OF AGE PROHIBITED; PROOF OF AGE
REQUIRED.
SECTION 3. Sections 161.082(a) and (e), Health and Safety
Code, are amended to read as follows:
(a) A person commits an offense if the person, with criminal
negligence:
(1) sells, gives, or causes to be sold or given a
cigarette or tobacco product to someone who is younger than 19 [18]
years of age; or
(2) sells, gives, or causes to be sold or given a
cigarette or tobacco product to another person who intends to
deliver it to someone who is younger than 19 [18] years of age.
(e) A proof of identification satisfies the requirements of
Subsection (d) if it contains a physical description and photograph
consistent with the person's appearance, purports to establish that
the person is 19 [18] years of age or older, and was issued by a
governmental agency. The proof of identification may include a
driver's license issued by this state or another state, a passport,
or an identification card issued by a state or the federal
government.
SECTION 4. Section 161.084(b), Health and Safety Code, is
amended to read as follows:
(b) The sign must include the statement:
PURCHASING OR ATTEMPTING TO PURCHASE TOBACCO PRODUCTS BY A
MINOR UNDER 19 [18] YEARS OF AGE IS PROHIBITED BY LAW. SALE OR
PROVISION OF TOBACCO PRODUCTS TO A MINOR UNDER 19 [18] YEARS OF AGE
IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C MISDEMEANOR,
INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED. VIOLATIONS MAY BE
REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY CALLING (insert
toll-free telephone number). PREGNANT WOMEN SHOULD NOT SMOKE.
SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN PREMATURE OR
WITH LOW BIRTH WEIGHT.
SECTION 5. Sections 161.085(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) Each retailer shall notify each individual employed by
that retailer who is to be engaged in retail sales of cigarettes or
tobacco products that state law:
(1) prohibits the sale or distribution of cigarettes
or tobacco products to any person who is younger than 19 [18] years
of age as provided by Section 161.082 and that a violation of that
section is a Class C misdemeanor; and
(2) requires each person who sells cigarettes or
tobacco products at retail or by vending machine to post a warning
notice as provided by Section 161.084, requires each employee to
ensure that the appropriate sign is always properly displayed while
that employee is exercising the employee's duties, and provides
that a violation of Section 161.084 is a Class C misdemeanor.
(b) The notice required by this section [Subsection (a)]
must be provided within 72 hours of the date an individual begins to
engage in retail sales of tobacco products. The individual shall
signify that the individual has received the notice required by
this section [Subsection (a)] by signing a form stating that the law
has been fully explained, that the individual understands the law,
and that the individual, as a condition of employment, agrees to
comply with the law.
SECTION 6. Section 161.086(b), Health and Safety Code, is
amended to read as follows:
(b) Subsection (a) does not apply to:
(1) a facility or business that is not open to persons
younger than 19 [18] years of age at any time;
(2) that part of a facility or business that is a
humidor or other enclosure designed to store cigars in a
climate-controlled environment; or
(3) a premises for which a person holds a package store
permit issued under the Alcoholic Beverage Code.
SECTION 7. Sections 161.087(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) A person may not distribute to persons younger than 19
[18] years of age:
(1) a free sample of a cigarette or tobacco product; or
(2) a coupon or other item that the recipient may use
to receive a free or discounted cigarette or tobacco product or a
sample cigarette or tobacco product.
(b) Except as provided by Subsection (c), a permit holder
may not accept or redeem, offer to accept or redeem, or hire a
person to accept or redeem a coupon or other item that the recipient
may use to receive a free or discounted cigarette or tobacco product
or a sample cigarette or tobacco product if the recipient is younger
than 19 [18] years of age. A coupon or other item that such a
recipient may use to receive a free or discounted cigarette or
tobacco product or a sample cigarette or tobacco product may not be
redeemable through mail or courier delivery.
SECTION 8. Sections 161.088(b) and (d), Health and Safety
Code, are amended to read as follows:
(b) The comptroller may make block grants to counties and
municipalities to be used by local law enforcement agencies to
enforce this subchapter in a manner that can reasonably be expected
to reduce the extent to which cigarettes and tobacco products are
sold or distributed to persons who are younger than 19 [18] years of
age. At least annually, random unannounced inspections shall be
conducted at various locations where cigarettes and tobacco
products are sold or distributed to ensure compliance with this
subchapter. The comptroller shall rely, to the fullest extent
possible, on local law enforcement agencies to enforce this
subchapter.
(d) The use of a person younger than 19 [18] years of age to
act as a minor decoy to test compliance with this subchapter shall
be conducted in a fashion that promotes fairness. A person may be
enlisted by the comptroller or a local law enforcement agency to act
as a minor decoy only if the following requirements are met:
(1) written parental consent is obtained for the use
of a person younger than 18 years of age to act as a minor decoy to
test compliance with this subchapter;
(2) at the time of the inspection, the minor decoy is
younger than 18 [17] years of age;
(3) the minor decoy has an appearance that would cause
a reasonably prudent seller of cigarettes or tobacco products to
request identification and proof of age;
(4) the minor decoy carries either the 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 cigarettes or tobacco
products; and
(5) the minor decoy answers truthfully any questions
about the minor's age.
SECTION 9. Section 161.251, Health and Safety Code, is
amended by adding Subdivision (1-a) to read as follows:
(1-a) "Minor" means a person under 19 years of age.
SECTION 10. Sections 161.252(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) An individual who is younger than 19 [18] years of age
commits an offense if the individual:
(1) possesses, purchases, consumes, or accepts a
cigarette or tobacco product; or
(2) falsely represents himself or herself to be 19
[18] years of age or older by displaying proof of age that is false,
fraudulent, or not actually proof of the individual's own age in
order to obtain possession of, purchase, or receive a cigarette or
tobacco product.
(b) It is an exception to the application of this section
that the individual younger than 19 [18] years of age possessed the
cigarette or tobacco product in the presence of:
(1) an adult parent, a guardian, or a spouse of the
individual; or
(2) an employer of the individual, if possession or
receipt of the tobacco product is required in the performance of the
employee's duties as an employee.
(c) It is an exception to the application of this section
that the individual younger than 19 [18] years of age is
participating in an inspection or test of compliance in accordance
with Section 161.088.
SECTION 11. Section 161.452(b), Health and Safety Code, is
amended to read as follows:
(b) A person taking a delivery sale order 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;
(4) [(5)] the tax collection requirements prescribed
by Section 161.457; and
(5) [(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.
SECTION 12. Section 161.453(a), Health and Safety Code, is
amended to read as follows:
(a) A person may not mail or ship cigarettes in connection
with a delivery sale order unless before mailing or shipping the
cigarettes 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 19 [18] 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;
(ii) confirming that the prospective
purchaser understands that signing another person's name to the
certification is illegal, that sales of cigarettes to an individual
under the age prescribed by Section 161.082 are illegal under state
law, and that the purchase of cigarettes by an individual under that
age is illegal under state law; and
(iii) confirming that the prospective
purchaser wants to receive mailings from a tobacco company;
(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 161.454; 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.
SECTION 13. Section 154.021(b), Tax Code, is amended to
read as follows:
(b) The tax rates are:
(1) $71.50 [$70.50] per thousand on cigarettes
weighing three pounds or less per thousand; and
(2) the rate provided by Subdivision (1) plus $2.10
per thousand on cigarettes weighing more than three pounds per
thousand.
SECTION 14. Section 161.455, Health and Safety Code, is
repealed.
SECTION 15. (a) The change in law made by this Act applies
only to an offense committed on or after the effective date of this
Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs
before that date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 16. The changes in law made by this Act do not
affect tax liability accruing before the effective date of this
Act. That liability continues in effect as if this Act had not been
enacted, and the former law is continued in effect for the
collection of taxes due and for civil and criminal enforcement of
the liability for those taxes.
SECTION 17. This Act takes effect September 1, 2011.