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.