SRC-CDH S.B. 1011 75(R)   BILL ANALYSIS


Senate Research Center   S.B. 1011
By: Madla
Criminal Justice
3-19-97
As Filed


DIGEST 

Currently, issues related to controlled substances are governed by the
Controlled Substances Act. This legislation updates and streamlines the
regulations contained in that Act to delete LSD from Penalty Group I and
add it to the newly created Penalty Group 1-A; criminalize the possession,
manufacture, and delivery of LSD in terms of very small "abuse units,"
rather than in terms of grams; update the substances listed in the penalty
groups and the lists of precursor chemical and laboratory apparatus;
remove the complex list of drug schedules and codify the authority of the
Commissioner of Health to establish and modify the schedules; grant the
Texas Department of Public Safety (DPS) the power to cancel, suspend,
revoke, probate, or accept voluntary surrender of a controlled substances
registration; provide for limited powers and inspection of chemical
precursor and laboratory apparatus permit facilities; clarify that a home
school cannot claim an educational or research program exception to
registration and permitting available to a school district; and allow DPS
to compile and release statistical data for the triplicate prescription
program.    

PURPOSE

As proposed, S.B. 1011 establishes drug regulation and enforcement under
the Texas Controlled Substances Act and the authority of certain state
agencies under that Act, and imposes penalties for violations. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the director of the Department of
Public Safety (DPS) or an employee of DPS designated by the director in
SECTION 12 (Sections 481.078(b) and (f), Health and Safety Code) and
SECTION 14 (Sections 481.081(b) and (f), Health and Safety Code) of this
bill.   

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 481.002, Health and Safety Code, by amending
Subdivisions (3)-(6), (17), (30), and (41), and by adding Subdivision
(50), to define "abuse unit."  Redefines "commissioner," "controlled
premises," "controlled substance," "controlled substance analogue," "drug
paraphernalia," "opiate," and "prescription."    

SECTION 2. Amends Chapter 481B, Health and Safety Code, as follows:

SUBCHAPTER B.  SCHEDULES

Sec. 481.031.  Makes no change.

Sec. 481.032.  SCHEDULES.  Requires the commissioner of health or the
commissioner's designee (commissioner) to establish and modify Schedules
I, I-A, II, III, IV, and V of controlled substances.  Provides that a
reference to a schedule in this chapter means the most current version of
the schedule established or altered by the commissioner under this
subchapter and published in the Texas Register on or after January 1,
1998.  Deletes the existing provisions regarding Schedules I, II, III, IV,
and V.   

Sec. 481.033. EXCLUSION FROM SCHEDULES AND APPLICATION OF ACT.  Provides
that a compound, mixture, or preparation containing a stimulant listed in
Schedule II or depressant substance listed in Schedule III or IV having a
potential for abuse associated with a stimulant or depressant effect on
the central nervous system is excepted from the application of this
chapter under certain circumstances.  Makes conforming changes. 

Sec. 481.034.  New heading:  ESTABLISHMENT AND MODIFICATION OF SCHEDULES
BY COMMISSIONER.  Requires the commissioner, with the approval of the
Texas Board of Health (board), to establish schedules of controlled
substances and add, delete, or reschedule substances listed in those
schedules, rather than authorizing the commissioner to add substances and
delete or reschedule substances.  Requires the commissioner to assign a
controlled substance to a schedule in accordance with Section 481.035 and
in a manner consistent with this subchapter.  Prohibits the commissioner
from deleting a substance from the schedules or rescheduling a substance
if the substance has been added to the schedules or placed in a schedule
by the legislature, rather than if legislation attempting to add the
substance has failed to pass.  Makes conforming changes. 

Sec. 481.035.  FINDINGS.  Makes a conforming change. 

Sec. 481.036.  PUBLICATION OF SCHEDULES.  Requires the commissioner to
publish the schedules for publication in the Texas Register not later than
the fifth working day after the date the board approves an action by the
commissioner, rather than annually.  Sets forth the date on which an
action by the commissioner that establishes or modifies a schedule and is
approved by the board is authorized to take effect.  Makes conforming
changes.    

SECTION 3.  Amends Section 481.061(a), Health and Safety Code, to prohibit
a person who is not a registrant from prescribing or possessing a
controlled substance in this state, except as otherwise provided by this
chapter.  Makes conforming changes. 

SECTION 4.  Amends Section 481.062(a), Health and Safety Code, to provide
that an officer or employee of this state, another state, or the United
States who is lawfully engaged in law enforcement related to a controlled
substance, drug, or customs law and is authorized to possess the
controlled substance is not required to register and may possess a
controlled substance.  Makes a conforming change. 

SECTION 5. Amends Sections 481.0621(a) and (c), Health and Safety Code, to
provide that this subchapter does not apply to an educational or research
program of a private school other than a home school.  Sets forth the
terms under which the department and the Texas Education Agency are
required to adopt a memorandum of understanding. 

SECTION 6. Amends Sections 481.063(a) and (e)-(g), Health and Safety Code,
to authorize the director of the Department of Public Safety (DPS) or an
employee of DPS designated by the director (director) to refuse to issue a
controlled substance registration if the person fails or refuses to
provide to the director a consent form granting the director the right to
inspect the person's controlled premises and any record, controlled
substance, or other item covered by this chapter.  Sets forth the terms
under which an application for registration to manufacture, distribute,
analyze, dispense, or conduct research with a controlled substance may be
denied.  Authorizes the director to inspect the premises of an applicant
for registration.  Sets forth the provisions regarding validity terms and
renewal of a registration.   

SECTION 7. Amends Section 481.066, Health and Safety Code, as follows:

Sec. 481.066.  New heading:  VOLUNTARY SURRENDER, CANCELLATION,
SUSPENSION, PROBATION, OR REVOCATION OF REGISTRATION.  Authorizes the
director to accept a voluntary surrender of a registration; cancel a
registration; place on probation a person whose license has been
suspended; reprimand a registrant; cancel a registration issued in error;
and limit the cancellation or probation to a schedule or controlled
substance within a particular schedule.  Deletes the existing provisions
regarding the suspension or revocation of a registration by a district
court.  Authorizes the director, rather than the court, to place under
seal all controlled substances owned or possessed by the  registrant under
certain circumstances.  Prohibits a disposition from being made until the
time for administrative appeal of the order has elapsed, except in certain
cases.  Provides that Chapter 2001, Government Code, rather than the Rules
of Civil Procedure, applies to a proceeding under this section.  Sets
forth the terms by which the director is required to give written notice
of the acceptance of a voluntary surrender, cancellation, suspension,
probation, revocation, or denial of a registration to state agencies and
the applicant or registrant. Authorizes the director to issue or reinstate
the registration in certain situations.  Makes conforming changes. 

SECTION 8. Amends Sections 481.071(b) and (c), Health and Safety Code, to
make conforming changes. 

SECTION 9. Amends Sections 481.074(h), (i), and (k), Health and Safety
Code, to prohibit a person from dispensing a controlled substance listed
in Schedule V and containing a certain number of milligrams or less of
codeine or dihydrocodeine, or any of their salts, without the prescription
of a practitioner.  Deletes the requirement that a prescription for a
controlled substance show certain information relating to a practitioner.
Makes conforming changes. 

SECTION 10. Amends Sections 481.076(a), (b), and (d), Health and Safety
Code, to prohibit the director from permitting any person to have access
to information submitted to DPS, including information that may show a
patient is obtaining a controlled substance from another practitioner,
except in cases involving certain individuals.  Provides that this section
does not prohibit the director from creating, using, or disclosing
statistical data about information received by the director under this
section if the director removes any information reasonably likely to
reveal the identity of each patient, practitioner, or other person who is
a subject of the information.  Deletes the provision regarding cooperation
between investigators and DPS officers.  Sets forth the terms under which
information submitted to the director, rather than to DPS, is authorized
to be used. 

SECTION 11. Amends Sections 481.077(a)-(c), (k), and (l), Health and
Safety Code, to delete Morpholine from the list of precursor substances
for which a record must be maintained for a certain period following its
sale or transfer by a person.  Provides that this section and Section
481.078 do not apply to a person to whom a registration has been issued
under Section 481.063.  Deletes the provision requiring DPS to file a
certified copy of a rule adopted.  Includes a member of DPS among those
allowed to conduct audits and inspect records of purchases, sales, and
other records under certain circumstances.  Provides that this section
does not apply to the sale or transfer of a nonnarcotic product that
includes certain precursor substances if the sale or transfer complies
with federal law and involves a product that may be sold lawfully with a
prescription or over the counter. Makes conforming changes. 

SECTION 12. Amends Section 481.078, Health and Safety Code, by amending
Subsections (b) and (e), and adding Subsection (f), to require the
director, rather than DPS, by rule, to adopt procedures and standards for
the issuance and renewal or the voluntary surrender, cancellation,
suspension, probation, or revocation of controlled substance precursor
permits.  Sets forth the terms by which the director is prohibited from
issuing a permit unless the person applying for the permit delivers a
written consent to the director to inspect any controlled premise, record,
chemical precursor, or certain other items.  Authorizes the director to
adopt rules to establish security controls and provide for the inspection
of a place, entity, or item to which a chemical precursor transfer permit
applies. Makes conforming changes. 

SECTION 13. Amends Sections 481.080(a), (d), (e), and (m), Health and
Safety Code, to define "chemical laboratory apparatus."  Provides that
this section and Section 481.081 do not apply to a person to whom a
registration has been issued under Section 481.063.  Deletes the provision
regarding the inapplicability of this subsection to a recipient who has
obtained a chemical laboratory apparatus subject to Subsection (a) and who
is a permit holder under Section 481.081.  Makes conforming changes. 

SECTION 14. Amends Section 481.081, Health and Safety Code, by amending
Subsections (b) and (e), and adding Subsection (f), to require the
director, rather than DPS, by rule, to adopt procedures and standards for
the issuance and renewal or the voluntary surrender, cancellation,
suspension,  probation or revocation of chemical laboratory apparatus
permits.  Sets forth the terms by which the director is prohibited from
issuing a permit unless the person applying for the permit delivers
written consent to inspect any controlled premise, record, chemical
laboratory apparatus, or certain other items to the director.  Authorizes
the director, by rule, to establish security controls and provide for the
inspection of a place, entity, or item to which a chemical laboratory
apparatus transfer permit applies.  Makes conforming changes. 

SECTION 15. Amends Section 481.102, Health and Safety Code, to amend the
list of substances constituting Penalty Group 1. 

SECTION 16. Amends Chapter 481D, Health and Safety Code, by adding Section
481.1021, as follows: 

Sec. 481.0121.  PENALTY GROUP 1-A.  Provides that Penalty Group 1-A
consists of lysergic acid diethylamide (LSD), including its salts,
isomers, and salts of isomers.   

SECTION 17. Amends Section 481.103, Health and Safety Code, to amend the
list of substances constituting Penalty Group 2. 

SECTION 18. Amends Section 481.104, Health and Safety Code, to amend the
list of substances constituting Penalty Group 3. 

SECTION 19. Amends Section 481.105, Health and Safety Code, to amend the
list of substances constituting Penalty Group 4. 

SECTION 20. Amends Chapter 481D, Health and Safety Code, by adding
Sections 481.1121 and 481.1151, as follows: 

Sec. 481.1121.  OFFENSE:  MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY
GROUP 1-A.  Establishes that except as provided by this chapter, a person
commits an offense if the person knowingly manufactures, delivers, or
possesses with intent to manufacture or deliver a controlled substance
listed in Penalty Group 1-A.  Provides that an offense under this section
ranges from a third degree felony to imprisonment for life, depending on
the number of abuse units of the controlled substance. 

Sec. 481.1151.  OFFENSE:  POSSESSION OF SUBSTANCE IN PENALTY GROUP 1-A.
Establishes that except as provided by this chapter, a person commits an
offense if the person knowingly possesses a controlled substance listed in
Penalty Group 1-A.  Provides that an offense under this section ranges
from a state jail felony to imprisonment for life, depending on the number
of abuse units of the controlled substance. 

SECTION 21. Amends Section 481.122(a), Health and Safety Code, to
establish that except as provided, rather than authorized, by this
chapter, a person commits an offense if the person knowingly, rather than
knowingly and intentionally, delivers a controlled substance listed in
Penalty Group 1, 1-A, 2, or 3.  Makes a conforming change. 

SECTION 22. Amends Section 481.123(a), Health and Safety Code, to set
forth the terms under which a controlled substance analogue is considered
to be a controlled substance listed in Penalty Group 1 or 1-A, rather than
Penalty Group 1.  Makes conforming changes. 

SECTION 23. Amends Section 481.128, Health and Safety Code, to provide
that a registrant or dispenser commits an offense if the registrant or
dispenser knowingly refuses or fails to maintain security required by this
chapter or a rule adopted under this chapter.  Provides that the
registrant or dispenser is liable to the state for a certain civil penalty
if the registrant or dispenser knowingly refuses or fails to maintain
security required by a rule adopted by the director, rather than adopted
on or after June 1, 1991.  Deletes the provision regarding registrant or
dispenser negligence resulting in the same.  Sets forth the civil penalty
if a person commits an act that would otherwise be an offense under
Subsection (a) except that it was committed without the requisite culpable
mental state.  Makes conforming changes. 
 
SECTION 24. Amends Chapter 481D, Health and Safety Code, by adding
Sections 481.136-481139, as follows: 

Sec. 481.136.  OFFENSE; UNLAWFUL TRANSFER OR RECEIPT OF CHEMICAL
PRECURSOR.  Sets forth the terms under which a person commits an offense
if the person sells, transfers, furnishes, or receives a precursor
substance listed in Section 481.077(a) under certain circumstances.
Provides that an offense under this section is a state jail felony, unless
the defendant has been previously convicted of an offense under this
section or Section 481.137, in which event the offense is a felony of the
third degree. 

Sec. 148.137.  OFFENSE:  TRANSFER OF PRECURSOR SUBSTANCE FOR UNLAWFUL
MANUFACTURE.  Provides that a person commits a third degree felony if the
person sells, transfers, or otherwise furnishes a precursor substance
listed in Section 481.077(a) with the knowledge or intent that the
recipient will use the substance to unlawfully manufacture a controlled
substance or controlled substance analogue. 

Sec. 481.138.  OFFENSE:  UNLAWFUL TRANSFER OR RECEIPT OF CHEMICAL
LABORATORY APPARATUS.  Provides that a person commits an offense if the
person sells, transfers, furnishes, or receives an apparatus described by
Section 481.080(a) under certain circumstances.  Establishes that an
offense under this section is a state jail felony, unless the defendant
has been previously convicted of an offense under this section, in which
case the offense is a third degree felony. 

Sec. 481.139.  OFFENSE:  TRANSFER OF CHEMICAL LABORATORY APPARATUS FOR
UNLAWFUL MANUFACTURE.  Provides that a person commits a third degree
felony if the person sells, transfers, or otherwise furnishes an apparatus
with the knowledge or intent that the recipient will use the apparatus to
unlawfully manufacture a controlled substance or controlled substance
analogue.     

SECTION 25. Amends Section 481.160(e), Health and Safety Code, by
relettering it as Subsection (f), to authorize a law enforcement agency to
petition a court to require, as a condition of community supervision,
rather than probation, a person to reimburse the agency for certain costs.

SECTION 26. Repealers:  Section 481.079, Health and Safety Code (Offense:
Unlawful Transfer or Receipt of Chemical Precursor) and Section 481.082,
Health and Safety Code (Offense:  Unlawful Transfer or Receipt of Chemical
Laboratory Apparatus). 

SECTION 27. Provides that not later than December 1, 1997, the
commissioner of public health is required to file with the secretary of
state a list of substances designated in Schedules I through V. Requires
the list to take effect January 1, 1998.  Makes application of this act
prospective to January 1, 1998 regarding a schedule.     

SECTION 28. Makes application of this Act prospective regarding an offense.

SECTION 29. (a)  Effective date:  January 1, 1998, except as provided by
Subsection (b). 

(b)  Effective date for SECTION 27:  September 1, 1997.

SECTION 30. Emergency clause.