HBA-AMW C.S.H.B. 2378 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2378
By: Kuempel
Ways & Means
4/9/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Because of federal and state taxes, the price of American manufactured
cigarettes intended for export is significantly less than American
manufactured cigarettes designated for domestic consumption. Before 1999,
wholesalers were legally able to buy large volumes of cigarettes
manufactured in the United States but intended for export, pay all required
taxes and duties for reimportation of the products, and market the export
products at a significant discount from the product sold for domestic
consumption.  This retailing process deceived consumers who believed that
the export cigarettes were of the same quality as cigarettes intended for
domestic consumption. C.S.H.B. 2378 prohibits a stamp from being affixed to
cigarettes that violate federal regulations, establishes a system for
identifying and monitoring tax stamping, and establishes prohibitions
relating to certain cigarettes. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

C.S.H.B. 2378 amends the Tax Code to prohibit a person from affixing a
stamp to a package of cigarettes if the package contains cigarettes with
respect to which any person is not in compliance with federal regulations
relating to submission of ingredient information to federal authorities,
imports of certain cigarettes, or previously exported tobacco products, and
any other federal law or implementing federal regulation (Sec. 154.0415,
Tax Code). 

The bill requires the comptroller of public accounts (comptroller) to
design and furnish stamps in a manner that permits identification of the
person that affixed the stamp to the particular package of cigarettes by
means of a number or other mark on the stamp.  The bill requires the
comptroller to maintain for at least four years the information identifying
the person that affixed the stamp to each package of cigarettes (Sec.
154.053). 

The bill provides that a distributor must include in the distributor's
records of purchase or receipt and in the report the distributor is
required to deliver to the comptroller of public accounts a copy of customs
certificates for all cigarettes imported into the United States to which
the distributor has affixed a tax stamp (Secs. 154.201 and 154.210).  The
bill adds that a person must knowingly affix stamps to prohibited
cigarettes in order for the person to commit an offense (Sec. 154.5025).   

The bill amends the Business & Commerce Code to authorize a person who
sells, distributes, or manufactures cigarettes and who sustains direct
economic or commercial injury as a result of a violation of affixing stamps
to prohibited cigarettes or a violation of the prohibitions relating to
certain cigarettes to bring an action in good faith for appropriate
injunctive relief in addition to any other remedy provided by law (Sec.
35.49). 

C.S.H.B. 2378 amends the Penal Code to provide that a person commits a
felony if the person knowingly  acquires, holds, owns, possesses, or
transports for sale or distribution in this state or the person knowingly
imports or causes to be imported into this state for sale or distribution
in this state certain contraband cigarettes.  The bill also provides that
this offense is punishable by a fine not to exceed $5,000, imprisonment in
the institutional division of the Texas Department of Criminal Justice for
not more than five years, or both the fine and imprisonment (Sec. 48.015). 

EFFECTIVE DATE

September 1, 2001.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2378 modifies the original bill by requiring the comptroller of
public accounts (comptroller) to place a number, rather than a serial
number, on a stamp for identification and requiring the comptroller to
maintain the identifying information for four, rather than three years.
The bill removes the provision from the original bill that specifies that
the information identifying the person who affixed the stamp to each
package of cigarettes is not confidential or exempt from disclosure to the
public (Sec. 154.053, Tax Code).   

The substitute adds provisions regarding cigarettes that are prohibited
from having stamps affixed to the packages, information included in
distributor's reports, and violations of the prohibitions against affixing
stamps to certain cigarettes (Secs. 154.015, 154.201, 154.210, and
154.5025).  The substitute also adds provisions regarding prohibitions
relating to certain cigarettes and remedies for violations of these
prohibitions and prohibitions against affixing stamps to certain cigarettes
(Sec. 48.015, Penal Code and Sec. 35.49, Business & Commerce Code).  

The substitute removes provisions in the original bill regarding the
applicability of tax stamp requirements to cigarettes intended for personal
use or for duty-free sales and for resale within a customs territory,
distributor's reports required to be filed with the comptroller, and
seizure and destruction of certain contraband cigarettes.