By: Blackwood H.B. No. 853
73R2948 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the offense of solicitation of the delivery of a
1-3 controlled substance, controlled substance analogue, or dangerous
1-4 drug.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 481.108, Health and Safety Code, is
1-7 amended to read as follows:
1-8 Sec. 481.108. PREPARATORY OFFENSES. (a) Except as provided
1-9 by Subsections (b) and (c), Title 4, Penal Code, applies to Section
1-10 481.126 and offenses designated as aggravated offenses under this
1-11 subchapter.
1-12 (b) Section 15.03, Penal Code, does not apply to the
1-13 solicitation of the offense of delivery of a controlled substance
1-14 under Section 481.112, 481.113, 481.114, 481.120, or 481.122 or to
1-15 the solicitation of the offense of delivery of a controlled
1-16 substance analogue under Section 481.123.
1-17 (c) Except as provided by Section 481.134, <except that> the
1-18 punishment for a preparatory offense is the same as the punishment
1-19 prescribed for the offense that was the object of the preparatory
1-20 offense.
1-21 SECTION 2. Subchapter D, Chapter 481, Health and Safety
1-22 Code, is amended by adding Section 481.134 to read as follows:
1-23 Sec. 481.134. SOLICITATION OF DELIVERY OF CONTROLLED
1-24 SUBSTANCE OR CONTROLLED SUBSTANCE ANALOGUE. (a) A person commits
2-1 an offense if, with intent to acquire a controlled substance or
2-2 controlled substance analogue, the person requests, commands, or
2-3 attempts to induce another to deliver a controlled substance under
2-4 Section 481.112, 481.113, 481.114, 481.120, or 481.122 or deliver a
2-5 controlled substance analogue under Section 481.123.
2-6 (b) A person may not be convicted under this section:
2-7 (1) on the uncorroborated testimony of the person
2-8 allegedly solicited; and
2-9 (2) unless the solicitation is made under
2-10 circumstances strongly corroborative of both the solicitation
2-11 itself and the actor's intent that the other person act on the
2-12 solicitation.
2-13 (c) It is not a defense to prosecution under this section
2-14 that:
2-15 (1) no monetary or other consideration was tendered to
2-16 the person solicited;
2-17 (2) the person solicited was unable or unwilling to
2-18 deliver a controlled substance or controlled substance analogue; or
2-19 (3) the person solicited has been acquitted, has not
2-20 been prosecuted or convicted, has been convicted of a different
2-21 offense or of a different type or class of offense, or is immune
2-22 from prosecution.
2-23 (d) It is an affirmative defense to prosecution under this
2-24 section that:
2-25 (1) the solicitation was made in furtherance of a
2-26 delivery that would not constitute an offense under this
2-27 subchapter;
3-1 (2) the solicitation was made by a peace officer or
3-2 federal law enforcement officer in the lawful discharge of the
3-3 officer's duties; or
3-4 (3) if the offense solicited is an aggravated offense,
3-5 the actor under circumstances manifesting a voluntary and complete
3-6 renunciation of the actor's criminal objective countermanded the
3-7 actor's solicitation before commission of the object offense and
3-8 took further affirmative action that prevented the commission of
3-9 the object offense.
3-10 (e) An offense under this section is punishable in the same
3-11 manner as the offense solicited.
3-12 (f) For the purposes of Subsection (d)(3):
3-13 (1) renunciation is not voluntary if it is motivated
3-14 in whole or in part:
3-15 (A) by circumstances not present or apparent at
3-16 the inception of the actor's course of conduct that increase the
3-17 probability of detection or apprehension or that make more
3-18 difficult the accomplishment of the objective; or
3-19 (B) by a decision to postpone the criminal
3-20 conduct until another time or to transfer the criminal act to
3-21 another but similar objective or victim; and
3-22 (2) evidence that the defendant renounced the
3-23 defendant's criminal objective by countermanding the defendant's
3-24 solicitation before the criminal offense was committed and made
3-25 substantial effort to prevent the commission of the object offense
3-26 is admissible as mitigation at the hearing on punishment if the
3-27 defendant has been found guilty of criminal solicitation; and in
4-1 the event of a finding of renunciation under this subdivision, the
4-2 solicitation is punishable as a first degree felony.
4-3 SECTION 3. Subchapter C, Chapter 483, Health and Safety
4-4 Code, is amended by adding Section 483.053 to read as follows:
4-5 Sec. 483.053. SOLICITATION OF DELIVERY OF DANGEROUS DRUG.
4-6 (a) A person commits an offense if, with intent to acquire a
4-7 dangerous drug, the person requests, commands, or attempts to
4-8 induce another to deliver a dangerous drug under Section 483.042.
4-9 (b) A person may not be convicted under this section:
4-10 (1) on the uncorroborated testimony of the person
4-11 allegedly solicited; and
4-12 (2) unless the solicitation is made under
4-13 circumstances strongly corroborative of both the solicitation
4-14 itself and the actor's intent that the other person act on the
4-15 solicitation.
4-16 (c) It is not a defense to prosecution under this section
4-17 that:
4-18 (1) no monetary or other consideration was tendered to
4-19 the person solicited;
4-20 (2) the person solicited was unable or unwilling to
4-21 deliver a dangerous drug; or
4-22 (3) the person solicited has been acquitted, has not
4-23 been prosecuted or convicted, has been convicted of a different
4-24 offense or a different type or class of offense, or is immune from
4-25 prosecution.
4-26 (d) It is an affirmative defense to prosecution under this
4-27 section that:
5-1 (1) the solicitation was made in furtherance of a
5-2 delivery that would not constitute an offense under this
5-3 subchapter; or
5-4 (2) the solicitation was made by a peace officer or
5-5 federal law enforcement officer in the lawful discharge of the
5-6 officer's duties.
5-7 (e) An offense under this section is a felony of the third
5-8 degree.
5-9 SECTION 4. Section 483.072, Health and Safety Code, is
5-10 amended to read as follows:
5-11 Sec. 483.072. UNCORROBORATED TESTIMONY. Except as provided
5-12 by Section 483.053, a <A> conviction under this chapter may be
5-13 obtained on the uncorroborated testimony of a party to the offense.
5-14 SECTION 5. (a) The change in law made by this Act applies
5-15 only to an offense committed on or after the effective date of this
5-16 Act. For the purposes of this section, an offense is committed
5-17 before the effective date of this Act if any element of the offense
5-18 occurs before the effective date.
5-19 (b) An offense committed before the effective date of this
5-20 Act is covered by the law in effect when the offense was committed,
5-21 and the former law is continued in effect for that purpose.
5-22 SECTION 6. This Act takes effect September 1, 1993.
5-23 SECTION 7. The importance of this legislation and the
5-24 crowded condition of the calendars in both houses create an
5-25 emergency and an imperative public necessity that the
5-26 constitutional rule requiring bills to be read on three several
5-27 days in each house be suspended, and this rule is hereby suspended.