PART 1. COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 3. TAX ADMINISTRATION
SUBCHAPTER JJ. CIGARETTE, E-CIGARETTE, AND TOBACCO PRODUCTS REGULATION
The Comptroller of Public Accounts adopts amendments to §3.1203, concerning approved seller training programs, without changes to the proposed text as published in the January 12, 2024, issue of the Texas Register (49 TexReg 129). The rule will not be republished.
The amendments implement the portion of Senate Bill 248, 87th Legislature, 2021, that requires vendors providing comptroller approved training programs to include training on e-cigarette sales. The comptroller also adopts amendments to require the recertification of approved training programs and to make other minor updates and improve readability.
The comptroller amends the definitions in subsection (a). In paragraph (1), the comptroller removes the definition of "application," which has a plain meaning, and replaces it with the definition of "cigar" from Tax Code, Chapter 155 (Cigar and Tobacco Products Tax). In paragraph (2), the comptroller replaces a reference to the definition of "cigarette" with the actual definition from Tax Code, Chapter 154 (Cigarette Tax). The comptroller adds the definition of "e-cigarette" in paragraph (3) and the definition of "minor" in paragraph (4), both from Health and Safety Code, Chapter 161 (Public Health Provisions), Subchapter H (Distribution of Cigarettes, E-cigarettes, or Tobacco Products) and renumbers the subsequent definitions. The comptroller amends the definition of "second party sales" in renumbered paragraph (5) to prohibit the sale of cigarettes and e-cigarettes that result in the provision of such products to a minor. The comptroller updates renumbered paragraph (6) by replacing the term "this state" with the term "Texas" and to add e-cigarettes to the list of products sold by a "seller." In new paragraph (7), the comptroller replaces a reference to the definition of "tobacco product" with the actual definition from Tax Code, Chapter 155.
The comptroller amends subsection (b) to include e-cigarette sellers in the list of sellers to whom the training curriculum must be focused.
The comptroller amends subsection (d) to clarify that the sale of cigarettes, e-cigarettes, and tobacco products must be included in the required course curriculum.
The comptroller amends subsection (g) to add that a certification expires if not recertified under new subsection (h).
The comptroller adds subsection (h) to establish recertification requirements for a comptroller approved seller course curriculum. The recertification must be renewed every two years to ensure the training includes any changes made during a legislative session. Subsequent subsections are relettered.
The comptroller amends relettered subsection (o) to remove the telephone contact numbers for class cancellations. The comptroller's webpage on Seller Training Programs is the best resource for current information of this sort.
The comptroller did not receive any comments regarding adoption of the amendment.
The comptroller adopts the amendments under Tax Code, §111.002 (Comptroller's Rules; Compliance; Forfeiture) and §111.0022 (Application to Other Laws Administered by Comptroller) which provide the comptroller with authority to prescribe, adopt, and enforce rules relating to the administration and enforcement provisions of Tax Code, Title 2, and taxes, fees, or other charges which the comptroller administers under other law.
The amendments to this section implement Health & Safety Code, §§161.081 (Definitions), 161.0901 (Disciplinary Action against Cigarette, E-cigarette, and Tobacco Product Retailers), and Tax Code, §155.001 (Definitions).
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 15, 2024.
TRD-202400648
Jenny Burleson
Director, Tax Policy
Comptroller of Public Accounts
Effective date: March 6, 2024
Proposal publication date: January 12, 2024
For further information, please call: (512) 475-2220
The Comptroller of Public Accounts adopts amendments to §3.1204, concerning administrative remedies for violations of Health and Safety Code, Chapter 161, Subchapter H or K, without changes to the proposed text as published in the January 12, 2024, issue of the Texas Register (49 TexReg 129). The rule will not be republished.
The comptroller adopts amendments to implement the portions of Senate Bill 248, 87th Legislature, 2021, that relate to violations and to provide guidance on the process for a permit suspension or revocation that conforms with applicable laws and current agency practice.
The comptroller amends the name of this section to remove the reference to Subchapter K as this section addresses only Subchapter H violations.
The comptroller adds titles to statutory references and makes minor grammatical revisions throughout the section.
The comptroller amends subsection (a) to add definitions of cigar, cigarette, e-cigarette, e-cigarette retailer, and tobacco products from Health and Safety Code, §161.081 and Tax Code, §154.001 and §155.001. The comptroller amends the existing definitions of place of business and permit holder by replacing the statutory references with definitions, based on similar terms from Tax Code, §154.001, Tax Code, §155.001 and Health and Safety Code §161.001 with the actual statutory definitions. The comptroller amends the definition of retailer to include the concepts in Health and Safety Code, §147.001(3) and §161.081(4) and Tax Code, §154.001(17) and §155.001(14). The comptroller alphabetizes and renumbers the definitions accordingly.
The comptroller adds, as subsection (b), a non-exclusive list of violations that result in disciplinary action. The comptroller reletters subsequent subsections.
The comptroller amends the title and content of relettered subsection (c) to clarify that a violation is reported to the comptroller and that the list of people that may report a violation is non-exclusive.
The comptroller amends relettered subsection (d) to implement Senate Bill 248 which repealed the violation provisions in Tax Code, Chapters 154 (Cigarette Tax) and 155 (Cigars and Tobacco Product Tax) and added the updated violation provisions to Health and Safety Code, Chapter 161. The updated provisions extend the look-back violation period from 12 months to 24 months and increase the amount of the fine for each violation that occurs within a specific timeframe.
The comptroller amends relettered subsection (e) to memorialize agency practice regarding the comptroller's notification to a permit holder of a violation of Health and Safety Code, Subchapter H. The comptroller amends the subsection to reflect that the comptroller no longer sends a written notice of a violation by certified mail. The comptroller also amends the subsection to require a permit holder to respond to the written notice of violation within 20 calendar days, rather than 15 calendar days, consistent with current agency practice.
The comptroller amends relettered subsection (f) to provide information on a permit holder's procedures for requesting a hearing. The comptroller also amends the subsection to remove information related to a permit holder's failure to respond to the violation notice which is now in new subsection (g).
The comptroller deletes original subsection (f) as the information is obsolete.
The comptroller removes original subsection (g) regarding the burden of proof in an administrative hearing in its entirety. The burden of proof is addressed in §1.21 of this title (Practice and Procedures).
The comptroller did not receive any comments regarding adoption of the amendment.
The amendments are adopted under Health and Safety Code, §161.0901 (Disciplinary Action Against Cigarette, E-Cigarette, and Tobacco Product Retailers), and Tax Code, §111.002, (Rulemaking Authority), which provides the comptroller with the authority to prescribe, adopt, and enforce procedural and due process rules relating to the administration and enforcement of the provisions of regulation of the tobacco statutes.
The amendments implement Government Code, Chapter 2001 (Administrative Procedures Act); Health and Safety Code, Chapter 161, Subchapter H (Distribution of Cigarettes, E-Cigarettes, Or Tobacco Products); and conforms this section to the relevant portions of 34 TAC §§1.1-1.35 (relating to Rules of Practice and Procedure).
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 15, 2024.
TRD-202400650
Jenny Burleson
Director, Tax Policy
Comptroller of Public Accounts
Effective date: March 6, 2024
Proposal publication date: January 12, 2024
For further information, please call: (512) 475-2220