Texas 2009 - 81st Regular

Texas Senate Bill SB1049 Compare Versions

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1	1	By: Uresti, et al. S.B. No. 1049
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the distribution, possession, purchase, consumption,
7	7	and receipt of tobacco products; providing penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 161.081, Health and Safety Code, is
10	10	amended by adding Subdivision (1-a) to read as follows:
11	11	(1-a) "Minor" means a person under 19 years of age.
12	12	SECTION 2. The heading to Section 161.082, Health and
13	13	Safety Code, is amended to read as follows:
14	14	Sec. 161.082. SALE OF CIGARETTES OR TOBACCO PRODUCTS TO
15	15	PERSONS YOUNGER THAN 19 [18] YEARS OF AGE PROHIBITED; PROOF OF AGE
16	16	REQUIRED.
17	17	SECTION 3. Subsections (a) and (e), Section 161.082, Health
18	18	and Safety Code, are amended to read as follows:
19	19	(a) A person commits an offense if the person, with criminal
20	20	negligence:
21	21	(1) sells, gives, or causes to be sold or given a
22	22	cigarette or tobacco product to someone who is younger than 19 [18]
23	23	years of age; or
24	24	(2) sells, gives, or causes to be sold or given a
25	25	cigarette or tobacco product to another person who intends to
26	26	deliver it to someone who is younger than 19 [18] years of age.
27	27	(e) A proof of identification satisfies the requirements of
28	28	Subsection (d) if it contains a physical description and photograph
29	29	consistent with the person's appearance, purports to establish that
30	30	the person is 19 [18] years of age or older, and was issued by a
31	31	governmental agency. The proof of identification may include a
32	32	driver's license issued by this state or another state, a passport,
33	33	or an identification card issued by a state or the federal
34	34	government.
35	35	SECTION 4. Subsection (b), Section 161.084, Health and
36	36	Safety Code, is amended to read as follows:
37	37	(b) The sign must include the statement:
38	38	PURCHASING OR ATTEMPTING TO PURCHASE TOBACCO PRODUCTS BY A
39	39	MINOR UNDER 19 [18] YEARS OF AGE IS PROHIBITED BY LAW. SALE OR
40	40	PROVISION OF TOBACCO PRODUCTS TO A MINOR UNDER 19 [18] YEARS OF AGE
41	41	IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C MISDEMEANOR,
42	42	INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED. VIOLATIONS MAY BE
43	43	REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY CALLING (insert
44	44	toll-free telephone number). PREGNANT WOMEN SHOULD NOT SMOKE.
45	45	SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN PREMATURE OR
46	46	WITH LOW BIRTH WEIGHT.
47	47	SECTION 5. Subsections (a) and (b), Section 161.085, Health
48	48	and Safety Code, are amended to read as follows:
49	49	(a) Each retailer shall notify each individual employed by
50	50	that retailer who is to be engaged in retail sales of cigarettes or
51	51	tobacco products that state law:
52	52	(1) prohibits the sale or distribution of cigarettes
53	53	or tobacco products to any person who is younger than 19 [18] years
54	54	of age as provided by Section 161.082 and that a violation of that
55	55	section is a Class C misdemeanor; and
56	56	(2) requires each person who sells cigarettes or
57	57	tobacco products at retail or by vending machine to post a warning
58	58	notice as provided by Section 161.084, requires each employee to
59	59	ensure that the appropriate sign is always properly displayed while
60	60	that employee is exercising the employee's duties, and provides
61	61	that a violation of Section 161.084 is a Class C misdemeanor.
62	62	(b) The notice required by this section [Subsection (a)]
63	63	must be provided within 72 hours of the date an individual begins to
64	64	engage in retail sales of tobacco products. The individual shall
65	65	signify that the individual has received the notice required by
66	66	this section [Subsection (a)] by signing a form stating that the law
67	67	has been fully explained, that the individual understands the law,
68	68	and that the individual, as a condition of employment, agrees to
69	69	comply with the law.
70	70	SECTION 6. Subsection (b), Section 161.086, Health and
71	71	Safety Code, is amended to read as follows:
72	72	(b) Subsection (a) does not apply to:
73	73	(1) a facility or business that is not open to persons
74	74	younger than 19 [18] years of age at any time;
75	75	(2) that part of a facility or business that is a
76	76	humidor or other enclosure designed to store cigars in a
77	77	climate-controlled environment; or
78	78	(3) a premises for which a person holds a package store
79	79	permit issued under the Alcoholic Beverage Code.
80	80	SECTION 7. Subsections (a) and (b), Section 161.087, Health
81	81	and Safety Code, are amended to read as follows:
82	82	(a) A person may not distribute to persons younger than 19
83	83	[18] years of age:
84	84	(1) a free sample of a cigarette or tobacco product; or
85	85	(2) a coupon or other item that the recipient may use
86	86	to receive a free or discounted cigarette or tobacco product or a
87	87	sample cigarette or tobacco product.
88	88	(b) Except as provided by Subsection (c), a permit holder
89	89	may not accept or redeem, offer to accept or redeem, or hire a
90	90	person to accept or redeem a coupon or other item that the recipient
91	91	may use to receive a free or discounted cigarette or tobacco product
92	92	or a sample cigarette or tobacco product if the recipient is younger
93	93	than 19 [18] years of age. A coupon or other item that such a
94	94	recipient may use to receive a free or discounted cigarette or
95	95	tobacco product or a sample cigarette or tobacco product may not be
96	96	redeemable through mail or courier delivery.
97	97	SECTION 8. Subsections (b) and (d), Section 161.088, Health
98	98	and Safety Code, are amended to read as follows:
99	99	(b) The comptroller may make block grants to counties and
100	100	municipalities to be used by local law enforcement agencies to
101	101	enforce this subchapter in a manner that can reasonably be expected
102	102	to reduce the extent to which cigarettes and tobacco products are
103	103	sold or distributed to persons who are younger than 19 [18] years of
104	104	age. At least annually, random unannounced inspections shall be
105	105	conducted at various locations where cigarettes and tobacco
106	106	products are sold or distributed to ensure compliance with this
107	107	subchapter. The comptroller shall rely, to the fullest extent
108	108	possible, on local law enforcement agencies to enforce this
109	109	subchapter.
110	110	(d) The use of a person younger than 19 [18] years of age to
111	111	act as a minor decoy to test compliance with this subchapter shall
112	112	be conducted in a fashion that promotes fairness. A person may be
113	113	enlisted by the comptroller or a local law enforcement agency to act
114	114	as a minor decoy only if the following requirements are met:
115	115	(1) written parental consent is obtained for the use
116	116	of a person younger than 18 years of age to act as a minor decoy to
117	117	test compliance with this subchapter;
118	118	(2) at the time of the inspection, the minor decoy is
119	119	younger than 18 [17] years of age;
120	120	(3) the minor decoy has an appearance that would cause
121	121	a reasonably prudent seller of cigarettes or tobacco products to
122	122	request identification and proof of age;
123	123	(4) the minor decoy carries either the minor's own
124	124	identification showing the minor's correct date of birth or carries
125	125	no identification, and a minor decoy who carries identification
126	126	presents it on request to any seller of cigarettes or tobacco
127	127	products; and
128	128	(5) the minor decoy answers truthfully any questions
129	129	about the minor's age.
130	130	SECTION 9. Section 161.251, Health and Safety Code, is
131	131	amended by adding Subdivision (1-a) to read as follows:
132	132	(1-a) "Minor" means a person under 19 years of age.
133	133	SECTION 10. Subsections (a), (b), and (c), Section 161.252,
134	134	Health and Safety Code, are amended to read as follows:
135	135	(a) An individual who is younger than 19 [18] years of age
136	136	commits an offense if the individual:
137	137	(1) possesses, purchases, consumes, or accepts a
138	138	cigarette or tobacco product; or
139	139	(2) falsely represents himself or herself to be 19
140	140	[18] years of age or older by displaying proof of age that is false,
141	141	fraudulent, or not actually proof of the individual's own age in
142	142	order to obtain possession of, purchase, or receive a cigarette or
143	143	tobacco product.
144	144	(b) It is an exception to the application of this section
145	145	that the individual younger than 19 [18] years of age possessed the
146	146	cigarette or tobacco product in the presence of:
147	147	(1) an adult parent, a guardian, or a spouse of the
148	148	individual; or
149	149	(2) an employer of the individual, if possession or
150	150	receipt of the tobacco product is required in the performance of the
151	151	employee's duties as an employee.
152	152	(c) It is an exception to the application of this section
153	153	that the individual younger than 19 [18] years of age is
154	154	participating in an inspection or test of compliance in accordance
155	155	with Section 161.088.
156	156	SECTION 11. Subsection (b), Section 161.452, Health and
157	157	Safety Code, is amended to read as follows:
158	158	(b) A person taking a delivery sale order shall comply with:
159	159	(1) the age verification requirements prescribed by
160	160	Section 161.453;
161	161	(2) the disclosure requirements prescribed by Section
162	162	161.454;
163	163	(3) [the shipping requirements prescribed by Section
164	164	161.455;
165	165	[(4)] the registration and reporting requirements
166	166	prescribed by Section 161.456;
167	167	(4) [(5)] the tax collection requirements prescribed
168	168	by Section 161.457; and
169	169	(5) [(6)] each law of this state that generally
170	170	applies to sales of cigarettes that occur entirely within this
171	171	state, including a law:
172	172	(A) imposing a tax; or
173	173	(B) prescribing a permitting or tax-stamping
174	174	requirement.
175	175	SECTION 12. Subsection (a), Section 161.453, Health and
176	176	Safety Code, is amended to read as follows:
177	177	(a) A person may not mail or ship cigarettes in connection
178	178	with a delivery sale order unless before mailing or shipping the
179	179	cigarettes the person accepting the delivery sale order first:
180	180	(1) obtains from the prospective customer a
181	181	certification that includes:
182	182	(A) reliable confirmation that the purchaser is
183	183	at least 19 [18] years of age; and
184	184	(B) a statement signed by the prospective
185	185	purchaser in writing and under penalty of law:
186	186	(i) certifying the prospective purchaser's
187	187	address and date of birth;
188	188	(ii) confirming that the prospective
189	189	purchaser understands that signing another person's name to the
190	190	certification is illegal, that sales of cigarettes to an individual
191	191	under the age prescribed by Section 161.082 are illegal under state
192	192	law, and that the purchase of cigarettes by an individual under that
193	193	age is illegal under state law; and
194	194	(iii) confirming that the prospective
195	195	purchaser wants to receive mailings from a tobacco company;
196	196	(2) makes a good faith effort to verify the
197	197	information contained in the certification provided by the
198	198	prospective purchaser under Subdivision (1) against a commercially
199	199	available database or obtains a photocopy or other image of a
200	200	government-issued identification bearing a photograph of the
201	201	prospective purchaser and stating the date of birth or age of the
202	202	prospective purchaser;
203	203	(3) sends to the prospective purchaser, by e-mail or
204	204	other means, a notice that complies with Section 161.454; and
205	205	(4) for an order made over the Internet or as a result
206	206	of an advertisement, receives payment for the delivery sale from
207	207	the prospective purchaser by a credit or debit card that has been
208	208	issued in the purchaser's name or by check.
209	209	SECTION 13. Section 161.455, Health and Safety Code, is
210	210	repealed.
211	211	SECTION 14. (a) The change in law made by this Act applies
212	212	only to an offense committed on or after the effective date of this
213	213	Act. For purposes of this section, an offense is committed before
214	214	the effective date of this Act if any element of the offense occurs
215	215	before that date.
216	216	(b) An offense committed before the effective date of this
217	217	Act is covered by the law in effect when the offense was committed,
218	218	and the former law is continued in effect for that purpose.
219	219	SECTION 15. This Act takes effect September 1, 2009.