Texas

Clean Indoor Air

Public Places

Smoking is restricted to designated areas in elevators, enclosed theaters or movie houses, libraries, museums, transit systems or intrastate buses, planes, and trains. An exception is made for a participant in an authorized theatrical performance.

TEX. PENAL CODE ANN. § 48.01 (1997).

Schools

Students are prohibited from smoking or using tobacco products on school property or at any off-campus school-sanctioned activity.

TX EDUC. CODE § 21.927 (1987).

Smoking, or possession of a burning tobacco product, is restricted to designated areas in public primary and secondary schools.

TEX. PENAL CODE ANN. § 48.01 (1997).

Child Care Centers

Smoking is prohibited in licensed child-care centers, and on the premises, on the playground, in transportation vehicles, or during field trips of, or sponsored by, these facilities.

TX ADMIN. CODE tit. 40, Part 19, Subchapter S, Div. 1 § 746.3703(d) (1995).

Smoking is prohibited during operating hours in any childcare home, and in the garage, on the playground, in transportation vehicles, or during field trips of, or sponsored by, these facilities.

TX ADMIN. CODE tit. 40, Part 19, Subchapter S, Div. 1 § 747.3503(d) (1990).

Smoking is prohibited in foster homes by caregivers and other adults, and in motor vehicles while transporting foster children. Foster children may not use or possess tobacco products.

TX ADMIN. CODE tit. 40, Part 19, Subchapter O, Div. 2 § 749.2931 (2007).

Health Facilities

Smoking is restricted to designated areas in hospitals.

TEX. PENAL CODE ANN. § 48.01 (1997).

Penalties/Enforcement

Signs must be posted stating that smoking is prohibited. Failure to post such signs is punishable by a fine not to exceed $500. Facilities to extinguish smoking materials shall be provided in all conveyances and public places where smoking is restricted. A person who smokes in a nonsmoking area is punishable as a Class C misdemeanor. It is a defense to prosecution that the conveyance or public place in which the offense takes place does not have prominently displayed notice that smoking is prohibited by state law and that an offense is punishable by a fine not to exceed $500, or that the conveyance or public place does not provide facilities for the extinguishment of smoking materials.

TEX. PENAL CODE ANN. § 48.01 (1997).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $1.41

Date last changed: January 1, 2007 — from 41 cents to $1.41

Year first enacted: 1931

TEX. TAX CODE ANN. § 154.021 (2007).

The legislature can appropriate cigarette tax revenue to the state Comptroller deposited to the credit of the Treasury Fiscal Agency Fund for the printing of tax stamps and for the administration and enforcement of cigarette tax laws. After that transfer, remaining revenue from 4 cents of the cigarette tax is distributed 18.75 percent to the Foundation School Fund and 81.25 percent to the state general revenue fund. Revenue from an additional 37 cents of the cigarette tax is distributed to the state general revenue fund. Revenue from the remaining $1.00 of the cigarette tax shall be deposited to the credit of the Property Tax Relief Fund.

TEX. TAX CODE ANN. §§ 154.601 to 154.6035 (2006).

Other Tobacco Products

Cigars: 1) one cent per 10 or fraction of 10 on cigars weighing less than three pounds per thousand;

2) $7.50 per 1,000 on cigars that weigh more than three pounds per thousand and sell at factory list price for 3.3 cents or less each;

3) $11 per thousand on cigars that weigh more than three pounds per thousand, sell at factory list price for more than 3.3 cents each, and contain no substantial amount of non-tobacco ingredients;

4) $15 per thousand on cigars that weigh more than three pounds per thousand, sell at factory list price for more than 3.3 cents each, and contain a substantial amount of non-tobacco ingredients;

All other tobacco products: 40% of the manufacturer’s list price.

TEX. TAX CODE ANN. §§ 155.021(1991) & 155.0211 (2007).

All proceeds from taxes on cigars and other tobacco products is distributed to the state general revenue fund except 4.787 percent of the tax on other tobacco products shall be deposited to the credit of the Property Tax Relief Fund.

TEX. TAX CODE ANN. §§ 155.241(1982) & 155.2415 (2006).

Revenue Collected

$993,652,000

Youth Access

Compliance/Enforcement

The state Comptroller shall enforce state youth access and sales to minors’ laws in partnership with local law enforcement agencies. At least annually, random, unannounced inspections of various locations where cigarettes or tobacco are sold or delivered are required. Minors may be used in compliance checks if they have written parental consent, are younger than 17, and have an appearance that would cause a reasonably prudent retailer to request identification.

TEX. HEALTH & SAFETY CODE ANN. § 161.088 (1999).

Photo ID: A person may not sell, give, or cause to be sold or given a cigarette or tobacco product to someone who is younger than 27 years of age unless the person to whom the cigarette or tobacco product was sold or given presents an apparently valid proof of identification. A proof of identification satisfies this requirement if it contains a physical description and photograph consistent with the person’s appearance, purports to establish that the person is 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. A retailer shall adequately supervise and train the retailer’s agents and employees to prevent a violation.

TEX. HEALTH & SAFETY CODE ANN. § 161.083 (1998).

Penalties for Sales to Minors

A person commits an offense if the person, with criminal negligence, sells, gives, or causes to be sold or given a cigarette or tobacco product to someone who is younger than 18 years of age; or to another person who intends to deliver it to someone who is younger than 18 years of age. Violation is a Class C misdemeanor. It is a defense to prosecution that the person to whom the cigarette or tobacco product was sold or given presented to the defendant proof of identification. If the offense under this section occurs in connection with a sale by an employee of the owner of a store in which cigarettes or tobacco products are sold at retail, the employee is criminally responsible for the offense and is subject to prosecution.

TEX. HEALTH & SAFETY CODE ANN. § 161.082 (1998).

Penalties to Minors

An individual who is younger than 18 years of age commits an offense if the individual possesses, purchases, consumes, or accepts a cigarette or tobacco product; or falsely represents himself or herself to be 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. Exceptions are if the minor is with an adult parent, guardian, or spouse of the individual; if it is a requirement of the minor’s employment; or if the minor is participating in a compliance check. A violation is punishable by a fine not to exceed $250. Upon conviction, a court shall require the youth to attend a tobacco awareness program provided by the commissioner or if the program is not available, eight to 12 hours of tobacco-related community service. The court may require the parent or guardian of the defendant to attend the tobacco awareness program with the youth. The court may also suspend or deny issuance of a driver’s license or permit for up to 180 days, if the youth does not demonstrate they have completed the tobacco awareness program or community service requirement.

TEX. HEALTH & SAFETY CODE ANN. §§ 161.252 (1998), 161.253 (1998) & 161.254 (1999).

Placement of Tobacco Products

A retailer or other person may not offer cigarettes or tobacco products for sale in a manner that permits a customer direct access to cigarettes or tobacco products. This does not apply to a facility or business that is not open to persons younger than 18 years of age at any time, that part of a facility or business that is a humidor or other enclosure designed to store cigars in a climate-controlled environment or a premises for which a person holds a package store permit issued under the Alcoholic Beverage Code. Violation is a Class C misdemeanor.

TX HEALTH & SAFETY CODE ANN. § 161.086 (1999).

Sign Posting

Each person who sells cigarettes or tobacco at retail shall post a sign in a location that is conspicuous to all employees and customers and that is close to the place at which cigarettes or tobacco products may be purchased. The sign must state: “PURCHASING OR ATTEMPTING TO PURCHASE TOBACCO PRODUCTS BY A MINOR UNDER 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 A 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.” Violation is a Class C misdemeanor.

TEX. HEALTH & SAFETY CODE ANN. § 161.084 (2007).

Other Provisions

Internet Sales: A person may not mail or ship cigarettes in connection with a delivery sale unless before mailing or shipping the cigarettes the person accepting the delivery sale order complies with specific age verification requirements, including a certification from the consumer and verification by the seller before delivery; specific disclosure requirements; specific shipping requirements, including use of a delivery service that requires a signature on delivery and a photo identification; specific registration and reporting requirements; and specific tax collection requirements. General violation of these provisions is a Class C misdemeanor for the first violation, and a Class B misdemeanor for subsequent violations. A knowing violation or someone who knowingly submits a certification in another person’s name is a third degree felony. Failure to collect taxes is a civil penalty of five times the value of the cigarettes involved in addition to any other penalty.

TEX. HEALTH & SAFETY CODE §§ 161.451 et seq. (2003).

Note: Some parts of this law may be affected by the U.S. Supreme Court decision in Rowe v. New Hampshire Motor Transport Association, decided February 20, 2008.

This subchapter does not preempt local regulation of the sale, distribution, or use of cigarettes or tobacco products or affect the authority of a political subdivision to adopt or enforce an ordinance or requirement relating to the sale, distribution, or use of cigarettes or tobacco products if the regulation, ordinance, or requirement is compatible with and equal to or more stringent than a requirement prescribed by this subchapter or relates to an issue that is not specifically addressed by this subchapter.

TEX. HEALTH & SAFETY CODE ANN. § 161.089 (1997).

Employees engaged in the retail sale of tobacco products, must sign a form stating the law has been fully explained to them and that they agree to comply with the law. Violation of this requirement is a Class C misdemeanor. It is a defense to prosecution to show proof that the employee did complete, sign and date the forms required.

TEX. HEALTH & SAFETY CODE ANN. § 161.085 (2001).

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

A person or permit holder is prohibited from distributing a free sample of a cigarette or tobacco product, or a coupon that may be redeemed for a free or discounted cigarette or tobacco product, to persons younger than 18 years of age. A coupon, sample cigarette or tobacco product may not be redeemable through the mail or courier delivery. Violation is a Class C misdemeanor.

TEX. HEALTH & SAFETY CODE ANN. § 161.087 (1997).

Single Cigarettes

It is an offense to sell cigarettes in quantities of less than an individual package containing at least 20 cigarettes. Violation is subject to a fine of $100.

TEX. TAX CODE ANN. § 154.504 (1997).

A person may not affix a cigarette tax stamp to a package of cigarettes if the package does not comply with the Federal Cigarette Labeling and Advertising Act for the placement of labels, warnings, or any other information for a package of cigarettes to be sold within the United States. Each violation is subject to a penalty of up to $2,000, and each day on which a violation occurs is a separate offense.

TEX. TAX CODE ANN. §§ 154.0415 & 154.501 (2001).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

Tobacco vending machines are restricted to facilities that are not open to persons younger than 18 years of age at any time and premises for which a person holds a package store permit issued under the Alcoholic Beverage Code.

TEX. HEALTH & SAFETY CODE ANN. § 161.086 (1999).

Penalty

Violation of the restrictions on placement of tobacco product vending machines is a Class C misdemeanor.

TEX. HEALTH & SAFETY CODE ANN. § 161.086 (1999).

Sign Posting

Each person who sells cigarettes by vending machine shall post a sign in a location that is conspicuous to all employees and customers and that is close to the place at which cigarettes or tobacco products may be purchased. The sign must state: “PURCHASING OR ATTEMPTING TO PURCHASE TOBACCO PRODUCTS BY A MINOR UNDER 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 A 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.” Violation is a Class C misdemeanor.

TEX. HEALTH & SAFETY CODE ANN. § 161.084 (2007).

Licensing Requirements

Requirements

A person may not engage in business as a distributor, wholesaler, manufacturer or retailer of cigarettes or other tobacco products unless they have received the proper permit from the state Comptroller. The definition of “retailer” includes selling cigarettes through a vending machine. A separate permit is required for each place of business. Permits expire on the last day of February of each year, except a retailer’s permit which expires on the last day of May of each even-numbered year. Combination permits for cigarettes and other tobacco products are available.

TEX. TAX CODE ANN. §§ 154.101 to 154.111 (2001) & 155.041 to 155.049 (2001).

Fee

$180 for a retail cigarette or other tobacco product permit every two years; $300 for a distributor’s cigarette or other tobacco product permit annually; and $300 for a wholesaler’s cigarette or other tobacco product permit annually.

TEX. TAX CODE ANN. §§ 154.111& 155.049 (2001).

Advertising and Promotion

A sign containing an advertisement for cigarettes or tobacco products may not be closer than 1,000 feet to a church or public or private school. A sign is defined as an outdoor medium, including a structure, display, light device, figure, painting, drawing, message, plaque, poster, or billboard that is used to advertise or inform and visible from the main-traveled way of a street or highway. This section does not apply to a sign located on or in a facility owned or leased by a professional sports franchise; a sign in a facility where professional sports events are held at least 10 times during a 12 month period; a sign that, before September 1, 1997, was located closer than 1,000 feet to a church or school but that was not located closer than 500 feet to the church or school. A purchaser of advertising must pay a fee that is 10 percent of the gross sales price of any outdoor advertising of cigarettes and tobacco products in this state. Violation is a Class C misdemeanor.

TEX. HEALTH & SAFETY CODE §§ 161.121 to 161.125 (1997).

Note: Enforcement of the above provisions may be affected by the U.S. Supreme Court decision in Lorillard Tobacco Company v. Reilly, decided in 2001.

Product Disclosure

Each manufacturer shall file with the Department of Health an annual report for each cigarette or tobacco product distributed in this state, stating the identity of each ingredient in the cigarette or tobacco product listed in descending order according to weight, measure, or numerical count, other than: tobacco; water; or reconstituted tobacco sheet made wholly from tobacco. They shall also report the nicotine yield rating for the cigarette or tobacco product. This section does not require a manufacturer to disclose the specific amount of any ingredient in a cigarette or tobacco product if that ingredient has been approved as safe when burned and inhaled by the United States Food and Drug Administration or a successor entity. Each manufacturer shall also assign a nicotine yield rating to each cigarette or tobacco product distributed in the state. The department standards must be developed so that the nicotine yield rating reflects, as accurately as possible, nicotine intake for an average consumer of the cigarette or tobacco product. The information included in these reports is public information and is not confidential, unless it is determined by the Attorney General that it’s disclosure would constitute an unconstitutional taking of property; if the department determines that there is no reasonable scientific basis for concluding that the availability of the information could reduce risks to public health; or the information is determined a trade secret under state or federal law. Failing to file the required report can result in a prohibition on the sale or distribution in this state of a cigarette or tobacco product manufactured by the manufacturer by court order.

TEX. HEALTH & SAFETY CODE §§ 161.352 to 161.355 (1999).

Tobacco Liability

Industry Protection

When a judgment is for money, the amount of security to suspend execution of the judgment during appeal of the judgment must equal the sum of costs and compensatory damages awarded in the judgment and interest from the expected duration of appeal except the security required to be posted can not exceed 50 percent of the judgment debtor’s net worth or $25 million, whichever is less. On a showing by the judgment debtor that the judgment debtor is likely to suffer substantial economic harm if required to post security in the required amount the trial court shall lower the amount of the security to an amount that will not cause the judgment debtor substantial economic harm. Nothing in this section prevents a trial court from enjoining the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the trial court may not make any order that interferes with the judgment debtor’s use, transfer, conveyance, or dissipation of assets in the normal course of business.

TEX. CIVIL PRACTICE & REMEDIES CODE § 52.006 (2003).

Tobacco Settlement

Tobacco Control Appropriations

Texas appropriated $13,050,003 for tobacco prevention and cessation programs in FY2009 (September 1, 2008 to August 31, 2009) from the state’s annual MSA payment and the state general fund. $12,483,003 was appropriated in FY2008. This is the second year of the FY2008-FY2009 biennium.

FY2008-FY2009 Biennial Budget (H.B. 1) enacted 6/15/07 and effective 9/1/07 (FY2008) & 9/1/08 (FY2009).

A tobacco settlement endowment was created with the tobacco settlement monies. The interest from the endowment, about $10 million a year, is supposed to be spent on a tobacco prevention program.

TEX. GOV’T CODE ANN. §§ 403.1041 et seq. & TEX. HEALTH & SAFETY CODE § 12.131 (1999).

Non-Monetary Provisions

The Commissioner of Public Health shall develop and implement a public awareness campaign designed to reduce tobacco use by minors. The campaign may use advertisements or similar media to provide educational information about tobacco use. The commissioner shall develop and implement a grant program to support youth groups that include as a part of the group’s program components the reduction of tobacco use by the group’s members.

TEX. HEALTH & SAFETY CODE ANN. §§ 161.301 & 161.302. (1997).

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