Texas 2009 - 81st Regular

Texas House Bill HB1234 Compare Versions

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1	1	81R21808 JTS-D
2	2	By: Menendez H.B. No. 1234
3	3	Substitute the following for H.B. No. 1234:
4	4	By: Solomons C.S.H.B. No. 1234
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the delivery sale of graffiti materials; providing
10	10	penalties.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Title 6, Business & Commerce Code, is amended by
13	13	adding Chapter 204 to read as follows:
14	14	CHAPTER 204. DELIVERY SALES OF GRAFFITI-RELATED MATERIALS
15	15	Sec. 204.001. DEFINITIONS. In this chapter:
16	16	(1) "Delivery sale" means a sale of graffiti materials
17	17	to a consumer in this state in which the purchaser submits the order
18	18	for the sale by means of a telephonic or other method of voice
19	19	transmission, by using the mails or any other delivery service, or
20	20	through the Internet or another online service, or the graffiti
21	21	materials are delivered by use of the mails or another delivery
22	22	service. A sale of graffiti materials is a delivery sale regardless
23	23	of whether the seller is located within or without this state. A
24	24	sale of graffiti materials not for personal use to a person who is a
25	25	wholesale dealer or a retail dealer is not a delivery sale.
26	26	(2) "Delivery service" means a person, including the
27	27	United States Postal Service, that is engaged in the commercial
28	28	delivery of letters, packages, or other containers.
29	29	(3) "Graffiti materials" means the following, as
30	30	defined by Section 28.08, Penal Code:
31	31	(A) aerosol paint;
32	32	(B) an indelible marker; or
33	33	(C) an etching or engraving device.
34	34	(4) "Shipping container" means a container in which
35	35	graffiti materials are shipped in connection with a delivery sale.
36	36	(5) "Shipping documents" means a bill of lading, an
37	37	airbill, a United States Postal Service form, or any other document
38	38	used to evidence the undertaking by a delivery service to deliver
39	39	letters, packages, or other containers.
40	40	Sec. 204.002. REQUIREMENTS FOR DELIVERY SALES. (a) A
41	41	person may not make a delivery sale of graffiti materials to an
42	42	individual who is younger than 21 years of age.
43	43	(b) A person taking a delivery sale order shall comply with:
44	44	(1) the age verification requirements prescribed by
45	45	Section 204.003;
46	46	(2) the disclosure requirements prescribed by Section
47	47	204.004;
48	48	(3) the shipping requirements prescribed by Section
49	49	204.005;
50	50	(4) the registration and reporting requirements
51	51	prescribed by Section 204.006; and
52	52	(5) each law of this state that generally applies to
53	53	sales of graffiti materials that occur entirely within this state,
54	54	including a law imposing a tax.
55	55	Sec. 204.003. AGE VERIFICATION REQUIREMENTS. (a) A person
56	56	may not mail or ship graffiti materials in connection with a
57	57	delivery sale order unless before mailing or shipping the graffiti
58	58	materials the person accepting the delivery sale order first:
59	59	(1) obtains from the prospective customer a
60	60	certification that includes:
61	61	(A) reliable confirmation that the purchaser is
62	62	at least 21 years of age; and
63	63	(B) a statement signed by the prospective
64	64	purchaser in writing and under penalty of law:
65	65	(i) certifying the prospective purchaser's
66	66	address and date of birth; and
67	67	(ii) confirming that the prospective
68	68	purchaser understands that signing another person's name to the
69	69	certification is illegal, that delivery sales of graffiti materials
70	70	to an individual younger than the age of 21 are illegal under state
71	71	law, and that the purchase of graffiti materials by an individual
72	72	under that age is illegal under state law;
73	73	(2) makes a good faith effort to verify the
74	74	information contained in the certification provided by the
75	75	prospective purchaser under Subdivision (1) against a commercially
76	76	available database or obtains a photocopy or other image of a
77	77	government-issued identification bearing a photograph of the
78	78	prospective purchaser and stating the date of birth or age of the
79	79	prospective purchaser;
80	80	(3) sends to the prospective purchaser, by e-mail or
81	81	other means, a notice that complies with Section 204.004; and
82	82	(4) for an order made over the Internet or as a result
83	83	of an advertisement, receives payment for the delivery sale from
84	84	the prospective purchaser by a credit or debit card that has been
85	85	issued in the purchaser's name or by check.
86	86	(b) A person taking a delivery sale order may request that a
87	87	prospective purchaser provide the purchaser's e-mail address.
88	88	Sec. 204.004. DISCLOSURE REQUIREMENTS. The notice required
89	89	by Section 204.003(a)(3) must include a prominent and clearly
90	90	legible statement that:
91	91	(1) delivery sales of graffiti materials to
92	92	individuals who are younger than 21 years of age are illegal under
93	93	state law; and
94	94	(2) delivery sales of graffiti materials are
95	95	restricted to those individuals who provide verifiable proof of age
96	96	in accordance with Section 204.003.
97	97	Sec. 204.005. SHIPPING REQUIREMENTS. (a) A person who
98	98	mails or ships graffiti materials in connection with a delivery
99	99	sale order shall:
100	100	(1) include as part of the shipping documents a clear
101	101	and conspicuous statement: "GRAFFITI MATERIALS: TEXAS LAW
102	102	PROHIBITS SHIPPING TO INDIVIDUALS UNDER 21 YEARS OF AGE"; and
103	103	(2) use a method of mailing or shipping that obligates
104	104	the delivery service to require:
105	105	(A) the purchaser placing the delivery sale
106	106	order, or an adult who is at least 21 years of age and who resides at
107	107	the purchaser's address, to sign to accept delivery of the shipping
108	108	container; and
109	109	(B) the person signing to accept delivery of the
110	110	shipping container to provide proof, in the form of a
111	111	government-issued identification bearing a photograph that the
112	112	person is:
113	113	(i) the addressee or an adult who is at
114	114	least 21 years of age and who resides at the purchaser's address;
115	115	and
116	116	(ii) at least 21 years of age if the person
117	117	appears to be younger than 27 years of age.
118	118	(b) A person taking a delivery sale order who delivers the
119	119	graffiti materials without using a third-party delivery service
120	120	shall comply with the requirements prescribed by this chapter that
121	121	apply to a delivery service.
122	122	Sec. 204.006. REGISTRATION AND REPORTING REQUIREMENTS. (a)
123	123	A person may not make a delivery sale or ship graffiti materials in
124	124	connection with a delivery sale unless the person first files with
125	125	the comptroller a statement that includes:
126	126	(1) the person's name and trade name; and
127	127	(2) the address of the person's principal place of
128	128	business and any other place of business, and the person's
129	129	telephone number and e-mail address.
130	130	(b) Not later than the 10th day of each month, each person
131	131	who has made a delivery sale or shipped or delivered graffiti
132	132	materials in connection with a delivery sale during the previous
133	133	month shall file with the comptroller a memorandum or a copy of the
134	134	invoice that provides for each delivery sale:
135	135	(1) the name, address, telephone number, and e-mail
136	136	address of the individual to whom the delivery sale was made;
137	137	(2) the brand or brands of the graffiti materials that
138	138	were sold; and
139	139	(3) the quantity of graffiti materials that were sold.
140	140	Sec. 204.007. GENERAL OFFENSES. (a) A person commits an
141	141	offense if the person violates a provision of this chapter for which
142	142	a criminal penalty is not otherwise provided.
143	143	(b) An offense under Subsection (a) is a misdemeanor
144	144	punishable by a fine not to exceed $1,000.
145	145	(c) If it is shown on the trial of a person that the person
146	146	has previously been convicted of an offense under this section, the
147	147	offense is a Class B misdemeanor.
148	148	Sec. 204.008. KNOWING VIOLATION. (a) A person who
149	149	knowingly violates a provision of this chapter or who knowingly
150	150	submits a certification under Section 204.003(a)(1) in another
151	151	person's name commits an offense.
152	152	(b) An offense under this section is a felony of the third
153	153	degree.
154	154	Sec. 204.009. FORFEITURE. (a) Graffiti materials sold or
155	155	that a person attempted to sell in a delivery sale that does not
156	156	comply with this chapter are forfeited to the state and shall be
157	157	destroyed.
158	158	(b) A fixture, equipment, or other material or personal
159	159	property on the premises of a person who, with the intent to defraud
160	160	this state, fails to comply with this chapter is forfeited to the
161	161	state.
162	162	Sec. 204.010. ENFORCEMENT. The attorney general or the
163	163	attorney general's designee may bring an action in a court of this
164	164	state to prevent or restrain a violation of this chapter by any
165	165	person or by a person controlling such a person.
166	166	SECTION 2. Chapter 204, Business & Commerce Code, as added
167	167	by this Act, applies only to a delivery sale order placed on or
168	168	after September 1, 2009.
169	169	SECTION 3. This Act takes effect September 1, 2009.