HBA-SEP C.S.H.B. 1707 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1707 By: Keel Criminal Jurisprudence 3/25/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Federal law has reclassified certain controlled substances and classified new controlled substances in the federal penalty groups. As a result, changes in the Texas Controlled Substances Act are necessary if state law is to be consistent with federal law. C.S.H.B. 1707 modifies and adds to the controlled substance penalty groups, includes officials of political subdivisions of this and other states among those officials who may possess controlled substances, imposes criminal penalties for crimes related to prescription forgery, and restricts accessibility to certain information. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS C.S.H.B. 1707 amends the Health and Safety Code to specify that "marihuana" does not include sterilized seeds of the plant that are incapable of beginning germination (Sec. 481.002). The bill removes Schedule IA from the list of schedules of controlled substances required to be established by the commissioner of public health (commissioner) (Sec. 481.032). The bill provides that an officer or employee of a political subdivision of this state or another state who is lawfully engaged in enforcing a law relating to a controlled substance or drug or to a customs law and authorized to possess the controlled substance in the discharge of the person's official duties is not required to register with the director of the Department of Public Safety (director) (Sec. 481.062). The bill provides that the Administrative Procedure Act does not apply to a registration denied, canceled, suspended, probated, or revoked because the applicant was convicted of or placed on community supervision or other probation for a felony, or a violation of the Texas Controlled Substances Act, simulated controlled substances, dangerous drugs, volatile chemicals, or abusable glues and aerosol paints; has had a registration or practitioner's license suspended, probated, or revoked; or has voluntarily surrendered a registration that has not been reinstated (Secs. 481.063 and 481.066). The bill clarifies that a controlled substance registration fee is a nonrefundable processing fee (Sec. 481.064). The bill provides that a person who is registered to manufacture, distribute, analyze, or dispense a controlled substance and who is required to keep a record in compliance with federal law must make the record at the time of the transaction that is the basis of the record (Sec. 481.067). The bill provides that a pharmacy filling a Schedule II controlled substance prescription issued by an out of state practitioner who meets certain conditions is an exception to the prohibition of a person from dispensing or administering a Schedule II controlled substance without the written prescription of a practitioner on an official prescription program form. The bill extends the time, from 72 hours to not later than the seventh day, by which the prescribing practitioner who orally or telephonically communicated an emergency prescription is required to deliver a written prescription to the dispensing pharmacist where the prescription was dispensed. The bill also extends the time, from 30 days to 60 days after the issue date, for which a Schedule II prescription for a patient in a long- term care facility or with a documented terminal illness is valid (Sec. 481.074). The bill provides that each official prescription form used to prescribe a Schedule II controlled substance must contain the practitioner's registration number issued by the Department of Public Safety. The bill requires a dispensing pharmacist to send information required by the director not later than the 15th day after the last day of the month in which the prescription is completely filled rather than the 30th day after the date the prescription is filled or after the completion of a prescription. The bill removes the provision permitting a dispensing pharmacist to send information required by the director by a universal claim form customarily used by pharmaceutical service providers (Sec. 481.075). The bill includes Remifentanil as an opiate in Penalty Group 1; Ketamine as a hallucinogenic in Penalty Group 2; Zaleplon, Sibutramine, and Modafinil in Penalty Group 3; and Butorphanol in Penalty Group 4 (Sec. 481.102--481.105). The bill removes the provision providing that a person commits a second degree felony if the person knowingly delivers a Penalty Group 1, 1-A, 2, or 3 controlled substance or marihuana and the person delivers the controlled substance or marihuana to a person who the actor knows or believes intends to deliver the controlled substance or marihuana to a person 17 years of age or younger. The bill provides that it is an affirmative defense to prosecution under delivery of a controlled substance or marihuana to a child that the actor was younger than 21 years of age, delivered only marihuana in an amount equal to or less than, rather than only less than, one-fourth of an ounce, and did not receive remuneration for the delivery (Sec. 481.122). The bill removes the qualification that a person must knowingly or intentionally commit the first degree felony of expending funds the person knows are derived from or finances or invests funds the person knows or believes are intended to further the commission of an offense punishable by life imprisonment under the Texas Controlled Substances Act (Sec. 481.126). The bill provides that a person commits an offense if the person knowingly issues a prescription bearing a forged or fictitious signature or obtains or attempts to obtain a controlled substance or an increased quantity of a controlled substance by certain means (Sec. 481.129). C.S.H.B.1707 amends the Government Code to provide that information is excepted from the requirements of availability of public information if it is information collected under the official prescription program (Sec. 552.118). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 1707 modifies the original by removing the section that repealed provisions regarding multiple prosecutions.