By: Brown S.B. No. 937
73R5839 RWS-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation of the offense of manufacture, delivery,
1-3 possession, or solicitation of the delivery of marihuana or a
1-4 controlled substance while accompanied by a person who is younger
1-5 than 18 years of age.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Subchapter D, Chapter 481, Health and Safety
1-8 Code, is amended by adding Section 481.1221 to read as follows:
1-9 Sec. 481.1221. OFFENSE: MANUFACTURE, DELIVERY, POSSESSION,
1-10 OR SOLICITATION OF THE DELIVERY OF A CONTROLLED SUBSTANCE OR
1-11 MARIHUANA WHILE ACCOMPANIED BY A MINOR. (a) Except as authorized
1-12 by this chapter, a person commits an aggravated offense if the
1-13 person knowingly or intentionally manufactures, delivers,
1-14 possesses, or solicits the delivery of marihuana or a controlled
1-15 substance listed in penalty group 1, 2, or 3 while accompanied by a
1-16 person who is younger than 18 years of age.
1-17 (b) It is an affirmative defense to prosecution under this
1-18 section that:
1-19 (1) the actor was younger than 18 years of age when
1-20 the offense was committed;
1-21 (2) the actor was younger than 21 years of age when
1-22 the offense was committed and delivered only marihuana in an amount
1-23 less than one-fourth ounce for which the actor did not receive
1-24 remuneration; or
2-1 (3) the actor was younger than 21 years of age when
2-2 the offense was committed and possessed only marihuana in an amount
2-3 less than one-fourth ounce or solicited the delivery of marihuana
2-4 only in an amount less than one-fourth ounce.
2-5 (c) It is not a defense to prosecution under this section
2-6 that the person who accompanied the defendant:
2-7 (1) failed to detect the commission of any element of
2-8 an offense under Subsection (a); or
2-9 (2) was, because of age, inexperience, or disability,
2-10 incapable of detecting or comprehending that the defendant was
2-11 committing any element of an offense under Subsection (a).
2-12 (d) It is not a defense to prosecution under this section
2-13 that the defendant did not know or could not have reasonably known
2-14 that the person accompanying the defendant was younger than 18
2-15 years of age.
2-16 (e) An offense under this section is a felony of the first
2-17 degree.
2-18 SECTION 2. Section 4(a), Article 42.12, Code of Criminal
2-19 Procedure, is amended to read as follows:
2-20 (a) When there is a felony conviction in any court of this
2-21 State and the punishment assessed by the jury shall not exceed ten
2-22 years, the jury may recommend probation for a period of any term of
2-23 years authorized for the offense for which the defendant was
2-24 convicted, but in no event for more than ten years, upon written
2-25 sworn motion made therefor by the defendant, filed before the trial
2-26 begins. When the jury recommends probation, it may also assess a
2-27 fine applicable to the offense for which the defendant was
3-1 convicted. When the trial is to a jury, and the defendant has no
3-2 counsel, the court shall inform the defendant of his right to make
3-3 such motion, and the court shall appoint counsel to prepare and
3-4 present same, if desired by the defendant. In no case shall
3-5 probation be recommended by the jury except when the sworn motion
3-6 and proof shall show, and the jury shall find in their verdict that
3-7 the defendant has never before been convicted of a felony in this
3-8 or any other State. This law is not to be construed as preventing
3-9 the jury from passing on the guilt of the defendant, but he may
3-10 enter a plea of not guilty. In all eligible cases, probation shall
3-11 be granted by the court, if the jury recommends it in their
3-12 verdict, for the period recommended by the jury. This section does
3-13 not apply to a defendant adjudged guilty of an offense under
3-14 Section 481.122 or 481.1221, <Texas Controlled Substances Act
3-15 (Chapter 481,> Health and Safety Code<)>, if it is shown on the
3-16 trial of the offense that the defendant was 21 years of age or
3-17 older at the time the offense was committed by his own conduct.
3-18 SECTION 3. Section 106.008(b), Human Resources Code, is
3-19 amended to read as follows:
3-20 (b) A facility may employ or continue employing a person
3-21 convicted of an offense under Chapter 481, Health and Safety Code,
3-22 or Sections 485.031 through 485.035, Health and Safety Code only
3-23 if:
3-24 (1) the person produces evidence that the person has
3-25 successfully completed a drug rehabilitation program; and
3-26 (2) the conviction was not for an offense under
3-27 Sections 481.107(b) through (e), 481.122, 481.1221, or 481.126,
4-1 Health and Safety Code.
4-2 SECTION 4. (a) The change in law made by this Act applies
4-3 only to an offense committed on or after the effective date of this
4-4 Act. For purposes of this section, an offense is committed before
4-5 the effective date of this Act if any element of the offense occurs
4-6 before that date.
4-7 (b) An offense committed before the effective date of this
4-8 Act is covered by the law in effect when the offense was committed,
4-9 and the former law is continued in effect for that purpose.
4-10 SECTION 5. This Act takes effect September 1, 1993.
4-11 SECTION 6. The importance of this legislation and the
4-12 crowded condition of the calendars in both houses create an
4-13 emergency and an imperative public necessity that the
4-14 constitutional rule requiring bills to be read on three several
4-15 days in each house be suspended, and this rule is hereby suspended.