By Keel H.B. No. 6
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to drug regulation and enforcement under the Texas
1-3 Controlled Substances Act; imposing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 481.002, Health and Safety Code, is
1-6 amended by amending Subdivision (26) to read as follows:
1-7 (26) "Marihuana" means the plant Cannabis sativa L.,
1-8 whether growing or not, the seeds of that plant, and every
1-9 compound, manufacture, salt, derivative, mixture, or preparation of
1-10 that plant or its seeds. The term does not include:
1-11 (A) the resin extracted from a part of the plant
1-12 or a compound, manufacture, salt, derivative, mixture, or
1-13 preparation of the resin;
1-14 (B) the mature stalks of the plant or fiber
1-15 produced from the stalks;
1-16 (C) oil or cake made from the seeds of the
1-17 plant;
1-18 (D) a compound, manufacture, salt, derivative,
1-19 mixture, or preparation of the mature stalks, fiber, oil, or cake;
1-20 or
1-21 (E) the sterilized seeds of the plant that are
2-1 incapable of beginning germination.
2-2 SECTION 2. Section 481.032, Health and Safety Code, is
2-3 amended by amending Subsection (a) to read as follows:
2-4 (a) The commissioner shall establish and modify the
2-5 following schedules of controlled substances under this subchapter:
2-6 Schedule I, [Schedule I-A,] Schedule II, Schedule III, Schedule IV,
2-7 and Schedule V.
2-8 SECTION 3. Section 481.062, Health and Safety Code, is
2-9 amended by amending Subsection (a)(4) to read as follows:
2-10 (4) an officer or employee of this state, another
2-11 state, a political subdivision of this state or another state, or
2-12 the United States who is lawfully engaged in the enforcement of a
2-13 law relating to a controlled substance or drug or to a customs law
2-14 and authorized to possess the controlled substance in the discharge
2-15 of the person's official duties; or
2-16 SECTION 4. Section 481.102, Health and Safety Code, is
2-17 amended by amending Subdivisions (4) and (9) to read as follows:
2-18 (4) the following opiates, including their isomers,
2-19 esters, ethers, salts, and salts of isomers, if the existence of
2-20 these isomers, esters, ethers, and salts is possible within the
2-21 specific chemical designation:
2-22 Acetyl-alpha-methylfentanyl
2-23 (N-1-(1-methyl-2-phenethyl)-4-piperidinyl-N-phenylacetamide);
2-24 Alpha-methylthiofentanyl
2-25 (N-1-methyl-2-(2-thienyl)ethyl-4-piperidinyl-N-phenylpropanamide);
3-1 Alphaprodine;
3-2 Anileridine;
3-3 Beta-hydroxyfentanyl
3-4 (N-1-(2-hydroxy-2-phenethyl)-4-piperidinyl-N-phenylpropanamide);
3-5 Beta-hydroxy-3-methylfentanyl;
3-6 Bezitramide;
3-7 Carfentanil;
3-8 Dihydrocodeine not listed in Penalty Group 3 or
3-9 4;
3-10 Diphenoxylate not listed in Penalty Group 3 or 4;
3-11 Fentanyl or alpha-methylfentanyl, or any other
3-12 derivative of Fentanyl;
3-13 Isomethadone;
3-14 Levomethorphan;
3-15 Levorphanol;
3-16 Metazocine;
3-17 Methadone;
3-18 Methadone-Intermediate,
3-19 4-cyano-2-dimethylamino-4, 4-diphenyl butane;
3-20 3-methylfentanyl(N-3-methyl-1-(2-phenylethyl)-
3-21 4-piperidyl-N-phenylpropanamide);
3-22 3-methylthiofentanyl(N-3-methyl-1-(2-thienyl)
3-23 ethyl-4-piperidinyl -N-phenylpropanamide);
3-24 Moramide-Intermediate, 2-methyl-3-morpholino-1,
3-25 1-diphenyl-propane-carboxylic acid;
4-1 Para-fluorofentanyl(N-(4-fluorophenyl)-N-1-
4-2 (2-phenylethyl)-4-piperidinylpropanamide);
4-3 PEPAP
4-4 (1-(2-phenethyl)-4-phenyl-4-acetoxypiperidine);
4-5 Pethidine (Meperidine);
4-6 Pethidine-Intermediate-A,
4-7 4-cyano-1-methyl-4-phenylpiperidine;
4-8 Pethidine-Intermediate-B,
4-9 ethyl-4-phenylpiperidine-4 carboxylate;
4-10 Pethidine-Intermediate-C,
4-11 1-methyl-4-phenylpiperidine-4-carboxylic acid;
4-12 Phenazocine;
4-13 Piminodine;
4-14 Racemethorphan;
4-15 Racemorphan;
4-16 Remifentanil; and
4-17 Thiofentanyl(N-phenyl-N-1-(2-thienyl)ethyl-4-
4-18 piperidinyl-propanamide);
4-19 (9) Gamma hydroxybutyric acid[hydroxybutyrate],
4-20 including its salts (some trade names: gamma hydroxybutyrate and
4-21 GHB)
4-22 SECTION 5. Section 481.104, Health and Safety Code, is
4-23 amended by amending Subdivision (7) to read as follows:
4-24 (7) unless listed in another penalty group, a
4-25 material, compound, mixture, or preparation that contains any
5-1 quantity of the following substances having a stimulant effect on
5-2 the central nervous system, including the substance's salts,
5-3 optical, position, or geometric isomers, and salts of the
5-4 substance's isomers, if the existence of the salts, isomers, and
5-5 salts of isomers is possible within the specific chemical
5-6 designation:
5-7 Benzphetamine;
5-8 Cathine (+)-norpseudoephedrine;
5-9 Chlorphentermine;
5-10 Clortermine;
5-11 Diethylpropion;
5-12 Fencamfamin;
5-13 Fenfluramine;
5-14 Fenproporex;
5-15 Mazindol;
5-16 Mefenorex;
5-17 Pemoline (including organometallic complexes and
5-18 their chelates);
5-19 Phendimetrazine;
5-20 Phentermine;
5-21 Pipradrol; [and]
5-22 SPA (-)-1-dimethylamino-1,2-diphenylethane; and
5-23 Sibutramine;
5-24 SECTION 6. Section 481.105, Health and Safety Code, is
5-25 amended by amending Subdivision (2) to read as follows:
6-1 (2) unless specifically excepted or unless listed in
6-2 another penalty group, a material, compound, mixture, or
6-3 preparation containing any quantity of the following narcotic
6-4 substances [the narcotic drug Buprenorphine] or its salts:
6-5 Buprenorphine; and
6-6 Butorphanol; and
6-7 SECTION 7. Section 481.122 is amended to read as follows:
6-8 OFFENSE: DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD
6-9 [MINOR] (a) A [Except as provided by this chapter, a] person
6-10 commits an offense if the person knowingly delivers a controlled
6-11 substance listed in Penalty Group 1, 1-A, 2, or 3 or knowingly
6-12 delivers marihuana and the person delivers the controlled substance
6-13 or marihuana to a person:
6-14 (1) who is a child or [17 years of age or younger;]
6-15 [(2) who the actor knows or believes intends to deliver
6-16 the controlled substance or marihuana to a person 17 years of age
6-17 or younger;]
6-18 [(3) who] is enrolled in an elementary or secondary
6-19 school; or
6-20 (2) [(4)] who the actor knows or believes intends to
6-21 deliver the controlled substance or marihuana to a person who is
6-22 listed under Subdivision (1)[enrolled in an elementary or secondary
6-23 school].
6-24 (b) It is an affirmative defense to prosecution under this
6-25 section that:
7-1 (1) the actor was a child[younger than 18 years of age
7-2 when the offense was committed]; or
7-3 (2) the actor:
7-4 (A) was 20 [younger than 21] years of age or
7-5 younger;
7-6 (B) [when the offense was committed and]
7-7 delivered [only marihuana in an amount less than] one-fourth ounce
7-8 or less of marijuana; and
7-9 (C) [for which the actor] did not receive
7-10 remuneration for delivering the marihuana.
7-11 (c) An offense under this section is a felony of the second
7-12 degree.
7-13 (d) In this section, "child" means an individual 17 years of
7-14 age or younger.
7-15 (e) If conduct constituting an offense under this section
7-16 also constitutes an offense under another section of this code, the
7-17 actor may be prosecuted under either section or both.
7-18 SECTION 8. Section 481.126 is amended by amending Subsection
7-19 (a) to read as follows:
7-20 (a) A person commits an offense if the person knowingly or
7-21 intentionally:
7-22 (1) expends funds the person knows are derived from
7-23 the commission of an offense which may be punishable under this
7-24 chapter by imprisonment in the institutional division for
7-25 life[Section 481.112(e) or (f), 481.113(e), 481.114(e), 481.115(f),
8-1 481.116(e), 481.117(e), 481.118(e), 481.120(b)(6), or
8-2 481.121(b)(6)]; or
8-3 (2) finances or invests funds the person knows or
8-4 believes are intended to further the commission of an offense for
8-5 which the punishment is listed under Subdivision (1).
8-6 SECTION 9. Section 481.129, Health and Safety Code, is
8-7 amended by amending Subsection (a) to read as follows:
8-8 (a) A person commits an offense if the person knowingly:
8-9 (1) distributes as a registrant or dispenser a
8-10 controlled substance listed in Schedule I or II, unless the person
8-11 distributes the controlled substance under an order form as
8-12 required by Section 481.069;
8-13 (2) uses in the course of manufacturing, prescribing,
8-14 or distributing a controlled substance a registration number that
8-15 is fictitious, revoked, suspended, or issued to another person;
8-16 (3) uses a prescription sticker issued to another
8-17 person to prescribe a Schedule II controlled substance;
8-18 (4) forges a prescription or increases the prescribed
8-19 quantity of a controlled substance in a prescription;
8-20 (5) issues a prescription bearing a forged or
8-21 fictitious signature;
8-22 (6) obtains or attempts to obtain a controlled
8-23 substance by using a forged, fictitious, or altered prescription;
8-24 (7) obtains or attempts to obtain a controlled
8-25 substance by means of a fictitious or fraudulent telephone call;
9-1 (8)[(4)] possesses or attempts to possess a controlled
9-2 substance:
9-3 (A) by misrepresentation, fraud, forgery,
9-4 deception, or subterfuge;
9-5 (B) through use of a fraudulent prescription
9-6 form; or
9-7 (C) through use of a fraudulent oral or
9-8 telephonically communicated prescription; or
9-9 (9)[(5)] furnishes false or fraudulent material
9-10 information in or omits material information from an application,
9-11 report, record, or other document required to be kept or filed
9-12 under this chapter.
9-13 SECTION 10. Section 481.132, Health and Safety Code, is
9-14 repealed.
9-15 SECTION 11. Section 481.134(a), Health and Safety Code, is
9-16 amended by amending Subdivisions (1), (6), and (7) and adding
9-17 Subdivision (8) to read as follows:
9-18 (1) "Child" ["Minor"] means a person who is 17
9-19 [younger than 18] years of age or younger.
9-20 (6) "Video arcade facility" means any facility that:
9-21 (A) is open to the public, including
9-22 children[persons who are 17 years of age or younger];
9-23 (B) is intended primarily for the use of pinball
9-24 or video machines; and
9-25 (C) contains at least three pinball or video
10-1 machines.
10-2 (7) "Youth center" means any recreational facility or
10-3 gymnasium that:
10-4 (A) is intended primarily for use by
10-5 children[persons who are 17 years of age or younger]; and
10-6 (B) regularly provides athletic, civic, or
10-7 cultural activities.
10-8 (8) "Drug-free zone" means a location:
10-9 (A) in, on, or within 1,000 feet of premises
10-10 owned, rented, or leased by an institution of higher learning or a
10-11 playground;
10-12 (B) on a school bus; or
10-13 (C) in, on, or within 300 feet of the premises
10-14 of a public or private youth center, public swimming pool, or video
10-15 arcade facility.
10-16 SECTION 12. Section 481.134, Health and Safety Code, is
10-17 amended by amending Subsections (b) through (h) to read as follows:
10-18 (b) Except as provided by Subsection (c), the punishment for
10-19 the offense of manufacture, delivery, or possession of a controlled
10-20 substance, marihuana, controlled substance analogue, or drug
10-21 paraphernalia is increased to the punishment prescribed for the
10-22 next highest category of offense[An offense otherwise punishable as
10-23 a state jail felony under Section 481.112, 481.113, 481.114, or
10-24 481.120 is punishable as a felony of the third degree, and an
10-25 offense otherwise punishable as a felony of the second degree under
11-1 any of those sections is punishable as a felony of the first
11-2 degree], if it is shown at the punishment phase of the trial of the
11-3 offense that the offense was committed in a drug-free zone. If the
11-4 offense is a Class A misdemeanor, the offense is a state jail
11-5 felony[:]
11-6 [(1) in, on, or within 1,000 feet of premises owned,
11-7 rented, or leased by an institution of higher learning or a
11-8 playground; or]
11-9 [(2) in, on, or within 300 feet of the premises of a
11-10 public or private youth center, public swimming pool, or video
11-11 arcade facility].
11-12 (c) The minimum term of [confinement or] imprisonment for an
11-13 offense [otherwise punishable under Section 481.112(c), (d), (e),
11-14 or (f), 481.113(c), (d), or (e), 481.114(c), (d), or (e),
11-15 481.115(c)-(f), 481.116(c), (d), or (e), 481.117(c), (d), or (e),
11-16 481.118(c), (d), or (e), 481.120(b)(4), (5), or (6), or
11-17 481.121(b)(4), (5), or (6)] is increased by five years and the
11-18 maximum fine for the offense is doubled if it is shown on the trial
11-19 of the offense that the offense:
11-20 (1) may be punishable under this chapter by
11-21 imprisonment in the institutional division for life; and
11-22 (2) was committed in a drug-free zone.
11-23 (d) It is an affirmative defense to prosecution under this
11-24 section that:
11-25 (1) the offense was a Class C or B misdemeanor;
12-1 (2)[:]
12-2 [(1) in, on, or within 1,000 feet of premises of a
12-3 school; or]
12-4 [(2) on a school bus.]
12-5 [(d) An offense otherwise punishable under Section
12-6 481.112(b), 481.113(b), 481.114(b), 481.115(b), 481.116(b),
12-7 481.120(b)(3), or 481.121(b)(3) is a felony of the third degree if
12-8 it is shown on the trial of the offense that the offense was
12-9 committed:]
12-10 [(1) in, on, or within 1,000 feet of any real property
12-11 that is owned, rented, or leased to a school or school board; or]
12-12 [(2) on a school bus.]
12-13 [(e) An offense otherwise punishable under Section
12-14 481.117(b), 481.119(a), 481.120(b)(2), or 481.121(b)(2) is a state
12-15 jail felony if it is shown on the trial of the offense that the
12-16 offense was committed:]
12-17 [(1) in, on, or within 1,000 feet of any real property
12-18 that is owned, rented, or leased to a school or school board; or]
12-19 [(2) on a school bus.]
12-20 [(f) An offense otherwise punishable under Section
12-21 481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(1) is a Class
12-22 A misdemeanor if it is shown on the trial of the offense that the
12-23 offense was committed:]
12-24 [(1) in, on, or within 1,000 feet of any real property
12-25 that is owned, rented, or leased to a school or school board; or]
13-1 [(2) on a school bus.]
13-2 [(g) Subsection (f) does not apply to an offense if:]
13-3 [(1)] the offense was committed inside a private
13-4 residence; and
13-5 (3)[(2)] no child [minor] was present in the private
13-6 residence at the time the offense was committed.
13-7 (e)[(h)] Punishment that is increased for a conviction for an
13-8 offense listed under this section may not run concurrently with
13-9 punishment for a conviction under any other criminal statute.
13-10 SECTION 13. Section 481.160, Health and Safety Code, as
13-11 amended by Acts 1991, 72nd Leg., ch. 14, Section 199, Acts 1991,
13-12 72nd Leg., ch. 285, Section 2, Acts 1991, 72nd Leg., ch. 141,
13-13 Section 1, Acts 1997, 75th Leg., ch. 745, Section 33, is reenacted
13-14 to read as follows:
13-15 Sec. 481.160. Destruction of Excess Quantities. (a) If a
13-16 controlled substance property or plant is forfeited under this code
13-17 or under Chapter 59, Code of Criminal Procedure, the law
13-18 enforcement agency that seized the property or plant or to which
13-19 the property or plant is forfeited may summarily destroy the
13-20 property or plant without a court order before the disposition of a
13-21 case arising out of the forfeiture if the agency ensures that:
13-22 (1) at least five random and representative samples
13-23 are taken from the total amount of the property or plant and a
13-24 sufficient quantity is preserved to provide for discovery by
13-25 parties entitled to discovery;
14-1 (2) photographs are taken that reasonably demonstrate
14-2 the total amount of the property or plant; and
14-3 (3) the gross weight or liquid measure of the property
14-4 or plant is determined, either by actually weighing or measuring
14-5 the property or plant or by estimating its weight or measurement
14-6 after making dimensional measurements of the total amount seized.
14-7 (b) If the property consists of a single container of
14-8 liquid, taking and preserving one representative sample complies
14-9 with Subsection (a)(1).
14-10 (c) A representative sample, photograph, or record made
14-11 under this section is admissible in civil or criminal proceedings
14-12 in the same manner and to the same extent as if the total quantity
14-13 of the suspected controlled substance property or plant was offered
14-14 in evidence, regardless of whether the remainder of the property or
14-15 plant has been destroyed. An inference or presumption of
14-16 spoliation does not apply to a property or plant destroyed under
14-17 this section.
14-18 (d) All controlled substance property, hazardous waste,
14-19 residuals, contaminated glassware, associated equipment, and
14-20 by-products from illicit chemical laboratories or similar
14-21 operations that create health or environmental hazards or prohibit
14-22 safe storage may be disposed of under Subsection (a) or may be
14-23 seized and immediately destroyed by a law enforcement agency
14-24 without court order if current environmental protection standards
14-25 are followed.
15-1 (e) A law enforcement agency seizing and destroying or
15-2 disposing of materials described in Subsection (d) shall ensure
15-3 that photographs are taken that reasonably demonstrate the total
15-4 amount of the materials seized and the manner in which the
15-5 materials were physically arranged or positioned before seizure.
15-6 (f) A law enforcement agency may petition a court to
15-7 require, as a condition of community supervision under Article
15-8 42.12, Code of Criminal Procedure, a person to reimburse the agency
15-9 for the cost of the confiscation, analysis, storage, or disposal of
15-10 raw materials, controlled substances, chemical precursors, drug
15-11 paraphernalia, or other materials seized in connection with an
15-12 offense committed by the person under this chapter.
15-13 SECTION 14. This Act takes effect September 1, 1999.
15-14 SECTION 15. (a) The change in law made by this Act applies
15-15 only to an offense committed on or after the effective date of this
15-16 Act. For purposes of this section, an offense is committed before
15-17 the effective date of this Act if any element of the offense occurs
15-18 before the effective date.
15-19 (b) An offense committed before the effective date of this
15-20 Act is covered by the law in effect when the offense was committed,
15-21 and the former law is continued in effect for this purpose.
15-22 SECTION 16. The importance of this legislation and the
15-23 crowded condition of the calendars in both houses create an
15-24 emergency and an imperative public necessity that the
15-25 constitutional rule requiring bills to be read on three several
16-1 days in each house be suspended, and this rule is hereby suspended.