Texas 2019 - 86th Regular

Texas House Bill HB749 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	86R17134 SRA-D
2		-	By: Zerwas, Thompson of Harris, Sheffield, H.B. No. 749
3		-	Anchia, Oliverson, et al.
4		-	Substitute the following for H.B. No. 749:
5		-	By: Thompson of Harris C.S.H.B. No. 749
	1	+	86R5047 SRA-D
	2	+	By: Zerwas H.B. No. 749
6	3
7	4
8	5		A BILL TO BE ENTITLED
9	6		AN ACT
10	7		relating to the distribution, possession, purchase, consumption,
11		-	and receipt of cigarettes, e-cigarettes, and tobacco products;
12		-	imposing a civil penalty.
	8	+	and receipt of cigarettes, e-cigarettes, and tobacco products.
13	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	10		SECTION 1. Section 161.081, Health and Safety Code, is
15	11		amended by adding Subdivision (1-b) to read as follows:
16	12		(1-b) "Minor" means a person under 21 years of age.
17	13		SECTION 2. Subchapter H, Chapter 161, Health and Safety
18	14		Code, is amended by adding Section 161.0815 to read as follows:
19	15		Sec. 161.0815. NONAPPLICABILITY. This subchapter does not
20	16		apply to a product that is:
21	17		(1) approved by the United States Food and Drug
22	18		Administration for use in the treatment of nicotine or smoking
23	19		addiction; and
24	20		(2) labeled with a "Drug Facts" panel in accordance
25	21		with regulations of the United States Food and Drug Administration.
26	22		SECTION 3. The heading to Section 161.082, Health and
27	23		Safety Code, is amended to read as follows:
28	24		Sec. 161.082. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
29	25		PRODUCTS TO PERSONS YOUNGER THAN 21 [18] YEARS OF AGE PROHIBITED;
30	26		PROOF OF AGE REQUIRED.
31	27		SECTION 4. Sections 161.082(a) and (e), Health and Safety
32	28		Code, are amended to read as follows:
33	29		(a) A person commits an offense if the person, with criminal
34	30		negligence:
35	31		(1) sells, gives, or causes to be sold or given a
36	32		cigarette, e-cigarette, or tobacco product to someone who is
37	33		younger than 21 [18] years of age; or
38	34		(2) sells, gives, or causes to be sold or given a
39	35		cigarette, e-cigarette, or tobacco product to another person who
40	36		intends to deliver it to someone who is younger than 21 [18] years
41	37		of age.
42	38		(e) A proof of identification satisfies the requirements of
43	39		Subsection (d) if it contains a physical description and photograph
44	40		consistent with the person's appearance, purports to establish that
45	41		the person is 21 [18] years of age or older, and was issued by a
46	42		governmental agency. The proof of identification may include a
47	43		driver's license issued by this state or another state, a passport,
48	44		or an identification card issued by a state or the federal
49	45		government.
50	46		SECTION 5. The heading to Section 161.083, Health and
51	47		Safety Code, is amended to read as follows:
52	48		Sec. 161.083. SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO
53	49		PRODUCTS TO PERSONS YOUNGER THAN 30 [27] YEARS OF AGE.
54	50		SECTION 6. Sections 161.083(a), (b), and (c), Health and
55	51		Safety Code, are amended to read as follows:
56	52		(a) A [Pursuant to federal regulation under 21 C.F.R.
57	53		Section 1140.14(b), a] person may not sell, give, or cause to be
58	54		sold or given a cigarette, e-cigarette, or tobacco product to
59	55		someone who is younger than 30 [27] years of age unless the person
60	56		to whom the cigarette, e-cigarette, or tobacco product was sold or
61	57		given presents an apparently valid proof of identification.
62	58		(b) A retailer shall adequately supervise and train the
63	59		retailer's agents and employees to prevent a violation of
64	60		Subsection [Subsections] (a) [and (a-1)].
65	61		(c) A proof of identification described by Section
66	62		161.082(e) satisfies the requirements of Subsection [Subsections]
67	63		(a) [and (a-1)].
68	64		SECTION 7. Section 161.084, Health and Safety Code, is
69	65		amended by amending Subsection (b) and adding Subsections (b-1) and
70	66		(b-2) to read as follows:
71	67		(b) The sign must include the statement:
72	68		PURCHASING OR ATTEMPTING TO PURCHASE CIGARETTES,
73	69		E-CIGARETTES, OR TOBACCO PRODUCTS BY A PERSON [MINOR] UNDER 21 [18]
74	70		YEARS OF AGE IS PROHIBITED BY LAW. SALE OR PROVISION OF CIGARETTES,
75	71		E-CIGARETTES, OR TOBACCO PRODUCTS TO A PERSON [MINOR] UNDER 21 [18]
76	72		YEARS OF AGE IS PROHIBITED BY LAW. UPON CONVICTION, A CLASS C
77	73		MISDEMEANOR, INCLUDING A FINE OF UP TO $500, MAY BE IMPOSED.
78	74		VIOLATIONS MAY BE REPORTED TO THE TEXAS COMPTROLLER'S OFFICE BY
79	75		CALLING (insert toll-free telephone number). PREGNANT WOMEN SHOULD
80	76		NOT SMOKE. SMOKERS ARE MORE LIKELY TO HAVE BABIES WHO ARE BORN
81	77		PREMATURE OR WITH LOW BIRTH WEIGHT.
82	78		(b-1) Immediately following the statement described by
83	79		Subsection (b), the sign described by that subsection must include
84	80		the statement:
85	81		THE PROHIBITIONS DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO
86	82		WAS BORN ON OR BEFORE AUGUST 31, 2001.
87	83		(b-2) This subsection and Subsection (b-1) expire September
88	84		1, 2022.
89	85		SECTION 8. Sections 161.085(a) and (b), Health and Safety
90	86		Code, are amended to read as follows:
91	87		(a) Each retailer shall notify each individual employed by
92	88		that retailer who is to be engaged in retail sales of cigarettes,
93	89		e-cigarettes, or tobacco products that state law:
94	90		(1) prohibits the sale or distribution of cigarettes,
95	91		e-cigarettes, or tobacco products to any person who is younger than
96	92		21 [18] years of age as provided by Section 161.082 and that a
97	93		violation of that section is a Class C misdemeanor; and
98	94		(2) requires each person who sells cigarettes,
99	95		e-cigarettes, or tobacco products at retail or by vending machine
100	96		to post a warning notice as provided by Section 161.084, requires
101	97		each employee to ensure that the appropriate sign is always
102	98		properly displayed while that employee is exercising the employee's
103	99		duties, and provides that a violation of Section 161.084 is a Class
104	100		C misdemeanor.
105	101		(b) The notice required by this section [Subsection (a)]
106	102		must be provided within 72 hours of the date an individual begins to
107	103		engage in retail sales of cigarettes, e-cigarettes, or tobacco
108	104		products. The individual shall signify that the individual has
109	105		received the notice required by this section [Subsection (a)] by
110	106		signing a form stating that the law has been fully explained, that
111	107		the individual understands the law, and that the individual, as a
112	108		condition of employment, agrees to comply with the law.
113	109		SECTION 9. Section 161.086(b), Health and Safety Code, is
114	110		amended to read as follows:
115	111		(b) Subsection (a) does not apply to:
116	112		(1) a facility or business that is not open to persons
117	113		younger than 21 [18] years of age at any time;
118	114		(2) that part of a facility or business that is a
119	115		humidor or other enclosure designed to store cigars in a
120	116		climate-controlled environment and that is not open to persons
121	117		younger than 21 years of age at any time; or
122	118		(3) a premises for which a person holds a package store
123	119		permit issued under the Alcoholic Beverage Code and that is not open
124	120		to persons younger than 21 years of age at any time.
125	121		SECTION 10. Section 161.087, Health and Safety Code, is
126	122		amended by amending Subsections (a), (b), and (c) and adding
127	123		Subsections (a-1) and (b-1) to read as follows:
128	124		(a) A person may not distribute [to persons younger than 18
129	125		years of age]:
130	126		(1) a free sample of a cigarette, e-cigarette, or
131	127		tobacco product; or
132	128		(2) a coupon or other item that the recipient may use
133	129		to receive a free [or discounted] cigarette, e-cigarette, or
134	130		tobacco product or a sample cigarette, e-cigarette, or tobacco
135	131		product.
136	132		(a-1) A person may not distribute to persons younger than 21
137	133		years of age a coupon or other item that the recipient may use to
138	134		receive a discounted cigarette, e-cigarette, or tobacco product.
139	135		(b) Except as provided by Subsection (c), a person,
140	136		including a permit holder, may not accept or redeem, offer to accept
141	137		or redeem, or hire a person to accept or redeem:
142	138		(1) a coupon or other item that the recipient may use
143	139		to receive a free [or discounted] cigarette, e-cigarette, or
144	140		tobacco product or a sample cigarette, e-cigarette, or tobacco
145	141		product; or
146	142		(2) a coupon or other item that the recipient may use
147	143		to receive a discounted cigarette, e-cigarette, or tobacco product
148	144		if the recipient is younger than 21 [18] years of age.
149	145		(b-1) A coupon or other item that [such] a recipient
150	146		described by Subsection (b) may use to receive a [free or]
151	147		discounted cigarette, e-cigarette, or tobacco product [or a sample
152	148		cigarette, e-cigarette, or tobacco product] may not be redeemable
153	149		through mail or courier delivery.
154	150		(c) Subsections (a)(2), (a-1), [and] (b), and (b-1) do not
155	151		apply to a transaction between permit holders unless the
156	152		transaction is a retail sale.
157	153		SECTION 11. Sections 161.088(b) and (d), Health and Safety
158	154		Code, are amended to read as follows:
159	155		(b) The comptroller may make block grants to counties and
160	156		municipalities to be used by local law enforcement agencies to
161	157		enforce this subchapter and Subchapter R in a manner that can
162	158		reasonably be expected to reduce the extent to which cigarettes,
163	159		e-cigarettes, and tobacco products are sold or distributed,
164	160		including by delivery sale, to persons who are younger than 21 [18]
165	161		years of age. At least annually, random unannounced inspections
166	162		shall be conducted at various locations where cigarettes,
167	163		e-cigarettes, and tobacco products are sold or distributed,
168	164		including by delivery sale, to ensure compliance with this
169	165		subchapter and Subchapter R. The comptroller shall rely, to the
170	166		fullest extent possible, on local law enforcement agencies to
171	167		enforce this subchapter and Subchapter R.
172	168		(d) The use of a person younger than 21 [18] years of age to
173	169		act as a minor decoy to test compliance with this subchapter and
174	170		Subchapter R shall be conducted in a fashion that promotes
175	171		fairness. A person may be enlisted by the comptroller or a local
176	172		law enforcement agency to act as a minor decoy only if the following
177	173		requirements are met:
178	174		(1) written parental consent is obtained for the use
179	175		of a person younger than 18 years of age to act as a minor decoy to
180	176		test compliance with this subchapter and Subchapter R;
181	177		(2) at the time of the inspection, order, or delivery,
182	178		the minor decoy is younger than 21 [17] years of age;
183	179		(3) the minor decoy has an appearance that would cause
184	180		a reasonably prudent seller of cigarettes, e-cigarettes, or tobacco
185	181		products to request identification and proof of age;
186	182		(4) the minor decoy carries either the minor's own
187	183		identification showing the minor's correct date of birth or carries
188	184		no identification, and a minor decoy who carries identification
189	185		presents it on request to any seller of or any person who delivers
190	186		cigarettes, e-cigarettes, or tobacco products; and
191	187		(5) the minor decoy answers truthfully any questions
192	188		about the minor's age at the time of the inspection, order, or
193	189		delivery.
194	190		SECTION 12. Section 161.251, Health and Safety Code, is
195	191		amended by adding Subdivision (1-b) to read as follows:
196	192		(1-b) "Minor" means a person under 21 years of age.
197		-	SECTION 13. Subchapter N, Chapter 161, Health and Safety
198		-	Code, is amended by adding Section 161.2515 to read as follows:
199		-	Sec. 161.2515. POSSESSION, PURCHASE, CONSUMPTION, OR
200		-	RECEIPT OF CIGARETTES, E-CIGARETTES, OR TOBACCO PRODUCTS BY MINORS;
201		-	CIVIL PENALTY. (a) Except as provided by Subsection (b), an
202		-	individual younger than 21 years of age is subject to a civil
203		-	penalty not to exceed $250 if the individual:
	193	+	SECTION 13. Sections 161.252(a), (b), and (c), Health and
	194	+	Safety Code, are amended to read as follows:
	195	+	(a) An individual who is younger than 21 [18] years of age
	196	+	commits an offense if the individual:
204	197		(1) possesses, purchases, consumes, or accepts a
205	198		cigarette, e-cigarette, or tobacco product; or
206		-	(2) falsely represents ~~that the individual is~~ 21 ~~years~~
207		-	of age or older by displaying proof of age that is false,
	199	+	(2) falsely represents himself or herself to be 21
	200	+	[18] years of age or older by displaying proof of age that is false,
208	201		fraudulent, or not actually proof of the individual's own age in
209	202		order to obtain possession of, purchase, or receive a cigarette,
210	203		e-cigarette, or tobacco product.
211		-	(b) An individual younger than 21 years of age is not
212		-	subject to a civil penalty under this section if the individual is:
213		-	(1) in the presence of an employer of the individual,
214		-	if possession or receipt of the cigarette, e-cigarette, or tobacco
215		-	product is required in the performance of the employee's duties as
216		-	an employee; or
217		-	(2) participating in an inspection or test of
218		-	compliance in accordance with Section 161.088.
219		-	(c) The county or municipality in which the violation occurs
220		-	may sue to collect a civil penalty. A civil penalty collected under
221		-	this subsection may be retained by the county or municipality. The
222		-	county or municipality may also recover the reasonable costs of
223		-	investigation, reasonable attorney's fees, and reasonable witness
224		-	and deposition fees incurred by the county or municipality in the
225		-	civil action.
226		-	SECTION 14. Sections 161.253(a), (c), (e), (f), and (g),
227		-	Health and Safety Code, are amended to read as follows:
228		-	(a) After determining an individual is liable for a civil
229		-	penalty [On conviction of an individual for an offense] under
230		-	Section 161.2515 [161.252], the court shall order [suspend
231		-	execution of sentence and shall require] the individual [defendant]
232		-	to attend an e-cigarette and tobacco awareness program approved by
233		-	the commissioner. The court may order [require] the parent or
234		-	guardian of the individual [defendant] to attend the e-cigarette
235		-	and tobacco awareness program with the defendant.
236		-	(c) If the individual [defendant] resides in a rural area of
237		-	this state or another area of this state in which access to an
238		-	e-cigarette and tobacco awareness program is not readily available,
239		-	the court shall order [require] the individual [defendant] to
240		-	perform eight to 12 hours of e-cigarette- and tobacco-related
241		-	community service instead of attending the e-cigarette and tobacco
242		-	awareness program.
243		-	(e) Not later than the 90th day after the date an individual
244		-	is found liable for a civil penalty [of a conviction] under Section
245		-	161.2515 [161.252], the individual [defendant] shall present to the
246		-	court, in the manner required by the court, evidence of
247		-	satisfactory completion of the e-cigarette and tobacco awareness
248		-	program or the e-cigarette- and tobacco-related community service.
249		-	(f) On receipt of the evidence required under Subsection
250		-	(e), the court shall:
251		-	(1) if the individual [defendant] has been found
252		-	liable for a civil penalty [previously convicted of an offense]
253		-	under Section 161.2515 [161.252], order the individual to pay the
254		-	penalty [execute the sentence], and at the discretion of the court,
255		-	reduce the amount of the penalty [fine] imposed to not less than
256		-	half the amount [fine] previously imposed by the court; or
257		-	(2) if the individual [defendant] has not been
258		-	previously found liable for a civil penalty [convicted of an
259		-	offense] under Section 161.2515 [161.252], [discharge the
260		-	defendant and] dismiss the civil action [complaint or information]
261		-	against the individual [defendant].
262		-	(g) If the court dismisses the civil action [discharges the
263		-	defendant] under Subsection (f)(2), the individual [defendant] is
264		-	released from all liability [penalties and disabilities] resulting
265		-	from the civil penalty [offense] except that the individual
266		-	[defendant] is considered to have been found liable for the civil
267		-	penalty [convicted of the offense] if the individual [defendant] is
268		-	subsequently found liable for a civil penalty [convicted of an
269		-	offense] under Section 161.2515 [161.252 committed] after the
270		-	dismissal under Subsection (f)(2).
271		-	SECTION 15. Sections 161.452(b) and (c), Health and Safety
	204	+	(b) It is an exception to the application of this section
	205	+	that the individual younger than 21 [18] years of age possessed the
	206	+	cigarette, e-cigarette, or tobacco product in the presence of[:
	207	+	[(1) an adult parent, a guardian, or a spouse of the
	208	+	individual; or
	209	+	[(2)] an employer of the individual, if possession or
	210	+	receipt of the cigarette, e-cigarette, or tobacco product is
	211	+	required in the performance of the employee's duties as an
	212	+	employee.
	213	+	(c) It is an exception to the application of this section
	214	+	that the individual younger than 21 [18] years of age is
	215	+	participating in an inspection or test of compliance in accordance
	216	+	with Section 161.088.
	217	+	SECTION 14. Sections 161.452(b) and (c), Health and Safety
272	218		Code, are amended to read as follows:
273	219		(b) A person taking a delivery sale order of cigarettes
274	220		shall comply with:
275	221		(1) the age verification requirements prescribed by
276	222		Section 161.453;
277	223		(2) the disclosure requirements prescribed by Section
278	224		161.454;
279	225		(3) [the shipping requirements prescribed by Section
280	226		161.455;
281	227		[(4)] the registration and reporting requirements
282	228		prescribed by Section 161.456;
283	229		(4) [(5)] the tax collection requirements prescribed
284	230		by Section 161.457; and
285	231		(5) [(6)] each law of this state that generally
286	232		applies to sales of cigarettes that occur entirely within this
287	233		state, including a law:
288	234		(A) imposing a tax; or
289	235		(B) prescribing a permitting or tax-stamping
290	236		requirement.
291	237		(c) A person taking a delivery sale order of e-cigarettes
292	238		shall comply with:
293	239		(1) the age verification requirements prescribed by
294	240		Section 161.453;
295	241		(2) the disclosure requirements prescribed by Section
296	242		161.454;
297	243		(3) [the shipping requirements prescribed by Section
298	244		161.455;
299	245		[(4)] the registration and reporting requirements
300	246		prescribed by Section 161.456; and
301	247		(4) [(5)] each law of this state that generally
302	248		applies to sales of e-cigarettes that occur entirely within this
303	249		state.
304		-	SECTION 16. Sections 161.453(a) and (c), Health and Safety
	250	+	SECTION 15. Sections 161.453(a) and (c), Health and Safety
305	251		Code, are amended to read as follows:
306	252		(a) A person may not mail or ship cigarettes in connection
307	253		with a delivery sale order unless before mailing or shipping the
308	254		cigarettes the person accepting the delivery sale order first:
309	255		(1) obtains from the prospective customer a
310	256		certification that includes:
311	257		(A) reliable confirmation that the purchaser is
312	258		at least 21 [18] years of age; and
313	259		(B) a statement signed by the prospective
314	260		purchaser in writing and under penalty of law:
315	261		(i) certifying the prospective purchaser's
316	262		address and date of birth;
317	263		(ii) confirming that the prospective
318	264		purchaser understands that signing another person's name to the
319	265		certification is illegal, that sales of cigarettes to an individual
320	266		under the age prescribed by Section 161.082 are illegal under state
321	267		law, and that the purchase of cigarettes by an individual under that
322	268		age is illegal under state law; and
323	269		(iii) confirming that the prospective
324	270		purchaser wants to receive mailings from a tobacco company;
325	271		(2) makes a good faith effort to verify the
326	272		information contained in the certification provided by the
327	273		prospective purchaser under Subdivision (1) against a commercially
328	274		available database or obtains a photocopy or other image of a
329	275		government-issued identification bearing a photograph of the
330	276		prospective purchaser and stating the date of birth or age of the
331	277		prospective purchaser;
332	278		(3) sends to the prospective purchaser, by e-mail or
333	279		other means, a notice that complies with Section 161.454; and
334	280		(4) for an order made over the Internet or as a result
335	281		of an advertisement, receives payment for the delivery sale from
336	282		the prospective purchaser by a credit or debit card that has been
337	283		issued in the purchaser's name or by check.
338	284		(c) A person may not mail or ship e-cigarettes in connection
339	285		with a delivery sale order unless before accepting a delivery sale
340	286		order the person verifies that the prospective purchaser is at
341	287		least 21 [18] years of age through a commercially available
342	288		database or aggregate of databases that is regularly used for the
343	289		purpose of age and identity verification. After the order is
344	290		accepted, the person must use a method of mailing or shipping that
345	291		requires an adult signature.
346		-	SECTION 17. Sections 161.083(a-1), 161.252, 161.254,
347		-	161.255, 161.256, 161.257, and 161.455, Health and Safety Code, are
348		-	repealed.
349		-	SECTION 18. (a) The changes in law made by this Act to
	292	+	SECTION 16. Sections 161.083(a-1) and 161.455, Health and
	293	+	Safety Code, are repealed.
	294	+	SECTION 17. (a) The changes in law made by this Act to
350	295		Subchapters H, N, and R, Chapter 161, Health and Safety Code, apply
351	296		only to an offense committed on or after the effective date of this
352	297		Act. For purposes of this section, an offense is committed before
353	298		the effective date of this Act if any element of the offense
354	299		occurred before that date.
355	300		(b) An offense committed before the effective date of this
356	301		Act is covered by the law in effect when the offense was committed,
357	302		and the former law is continued in effect for that purpose.
358	303		(c) The changes in law made by this Act to Subchapters H, N,
359	304		and R, Chapter 161, Health and Safety Code, do not apply to a person
360	305		who was born on or before August 31, 2001.
361		-	SECTION 19. The repeal by this Act of Sections 161.252,
362		-	161.254, 161.255, 161.256, and 161.257, Health and Safety Code,
363		-	does not apply to an offense committed under those sections before
364		-	the effective date of the repeal. An offense committed before the
365		-	effective date of the repeal is governed by the law as it existed on
366		-	the date the offense was committed, and the former law is continued
367		-	in effect for that purpose. For purposes of this section, an
368		-	offense was committed before the effective date of the repeal if any
369		-	element of the offense occurred before that date.
370		-	SECTION 20. This Act takes effect September 1, 2019.
	306	+	SECTION 18. This Act takes effect September 1, 2019.