H.B. No. 2192
AN ACT
relating to the regulation of controlled substances under the Texas
Controlled Substances Act and to the prosecution of certain
offenses under that Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 431.002(8), Health and Safety Code, is
amended to read as follows:
(8) "Consumer commodity," except as otherwise
provided by this subdivision, means any food, drug, device, or
cosmetic, as those terms are defined by this chapter or by the
federal Act, and any other article, product, or commodity of any
kind or class that is customarily produced or distributed for sale
through retail sales agencies or instrumentalities for consumption
by individuals, or for use by individuals for purposes of personal
care or in the performance of services ordinarily rendered within
the household, and that usually is consumed or expended in the
course of the consumption or use. The term does not include:
(A) a meat or meat product, poultry or poultry
product, or tobacco or tobacco product;
(B) a commodity subject to packaging or labeling
requirements imposed under the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136), or The [Section 8,]
Virus-Serum-Toxin Act (21 U.S.C. 151 et seq. [158]);
(C) a drug subject to the provisions of Section
431.113(c)(1) [or 431.112(k),] or Section 503(b)(1) [or 506] of the
federal Act;
(D) a beverage subject to or complying with
packaging or labeling requirements imposed under the Federal
Alcohol Administration Act (27 U.S.C. 205(e)); or
(E) a commodity subject to the provisions of
Chapter 61, Agriculture Code, relating to the inspection, labeling,
and sale of agricultural and vegetable seed.
SECTION 2. Section 431.112, Health and Safety Code, is
amended to read as follows:
Sec. 431.112. MISBRANDED DRUG OR DEVICE. A drug or device
shall be deemed to be misbranded:
(a)(1) if its labeling is false or misleading in any
particular; or
(2) if its labeling or packaging fails to conform with
the requirements of Section 431.181.
(b) if in a package form unless it bears a label containing
(1) the name and place of business of the manufacturer, packer, or
distributor; and (2) an accurate statement of the quantity of the
contents in terms of weight, measure, or numerical count; provided,
that under Subdivision (2) reasonable variations shall be
permitted, and exemptions as to small packages shall be allowed in
accordance with regulations prescribed by the secretary under the
federal Act;
(c) if any word, statement, or other information required by
or under authority of this chapter to appear on the label or
labeling is not prominently placed thereon with such
conspicuousness (as compared with other words, statements,
designs, or devices, in the labeling) and in such terms as to render
it likely to be read and understood by the ordinary individual under
customary conditions of purchase and use;
(d) [if it is for use by man and contains any quantity of the
narcotic or hypnotic substance alpha-eucaine, barbituric acid,
betaeucaine, bromal, cannabis, carbromal, chloral, coca, cocaine,
codeine, heroin, marihuana, morphine, opium, paraldehyde, peyote,
or sulphonmethane, or any chemical derivative of such substance,
which derivative, after investigation, has been found to be
designated as habit forming, by regulations issued by the secretary
under Section 502(d) of the federal Act, unless its label bears the
name and quantity or proportion of such substance or derivative and
in juxtaposition therewith the statement, "Warning: May be habit
forming";
[(e)] (1) if it is a drug, unless:
(A) its label bears, to the exclusion of any
other nonproprietary name (except the applicable systematic
chemical name or the chemical formula):
(i) the established name (as defined in
Subdivision (3)) of the drug, if any; and
(ii) in case it is fabricated from two or
more ingredients, the established name and quantity of each active
ingredient, including the quantity, kind, and proportion of any
alcohol, and also including, whether active or not, the established
name and quantity or proportion of any bromides, ether, chloroform,
acetanilid, acetphenetidin, amidopyrine, antipyrine, atropine,
hyoscine, hyoscyamine, arsenic, digitalis, digitalis glucosides,
mercury, ouabain, strophanthin, strychnine, thyroid, or any
derivative or preparation of any such substances, contained
therein; provided, that the requirement for stating the quantity of
the active ingredients, other than the quantity of those
specifically named in this subparagraph shall apply only to
prescription drugs; and
(B) for any prescription drug the established
name of the drug or ingredient, as the case may be, on the label (and
on any labeling on which a name for such drug or ingredient is used)
is printed prominently and in type at least half as large as that
used thereon for any proprietary name or designation for such drug
or ingredient; and provided, that to the extent that compliance
with the requirements of Paragraph (A)(ii) or this paragraph is
impracticable, exemptions shall be allowed under regulations
promulgated by the secretary under the federal Act;
(2) if it is a device and it has an established name,
unless its label bears, to the exclusion of any other
nonproprietary name, its established name (as defined in
Subdivision (4)) prominently printed in type at least half as large
as that used thereon for any proprietary name or designation for
such device, except that to the extent compliance with this
subdivision is impracticable, exemptions shall be allowed under
regulations promulgated by the secretary under the federal Act;
(3) as used in Subdivision (1), the term "established
name," with respect to a drug or ingredient thereof, means:
(A) the applicable official name designated
pursuant to Section 508 of the federal Act; or
(B) if there is no such name and such drug, or
such ingredient, is an article recognized in an official
compendium, then the official title thereof in such compendium; or
(C) if neither Paragraph (A) nor Paragraph (B)
applies, then the common or usual name, if any, of such drug or of
such ingredient; provided further, that where Paragraph (B) applies
to an article recognized in the United States Pharmacopoeia
National Formulary, the official title used in the United States
Pharmacopoeia National Formulary shall apply;
(4) as used in Subdivision (2), the term "established
name" with respect to a device means:
(A) the applicable official name of the device
designated pursuant to Section 508 of the federal Act;
(B) if there is no such name and such device is an
article recognized in an official compendium, then the official
title thereof in such compendium; or
(C) if neither Paragraph (A) nor Paragraph (B)
applies, then any common or usual name of such device;
(e) [(f)] unless its labeling bears:
(1) adequate directions for use; and
(2) such adequate warnings against use in those
pathological conditions or by children where its use may be
dangerous to health, or against unsafe dosage or methods or
durations of administration or application, in such manner and
form, as are necessary for the protection of users unless the drug
or device has been exempted from those requirements by the
regulations adopted by the secretary;
(f) [(g)] if it purports to be a drug the name of which is
recognized in an official compendium, unless it is packaged and
labeled as prescribed therein unless the method of packing has been
modified with the consent of the secretary. Whenever a drug is
recognized in the United States Pharmacopoeia National Formulary,
it shall be subject to the requirements of the United States
Pharmacopoeia National Formulary with respect to packaging and
labeling. If there is an inconsistency between the requirements of
this subsection and those of Subsection (d) [(e)] as to the name by
which the drug or its ingredients shall be designated, the
requirements of Subsection (d) [(e)] prevail;
(g) [(h)] if it has been found by the secretary to be a drug
liable to deterioration, unless it is packaged in such form and
manner, and its label bears a statement of such precautions, as the
secretary shall by regulations require as necessary for the
protection of public health;
(h) [(i)] if:
(1) it is a drug and its container is so made, formed,
or filled as to be misleading; or
(2) it is an imitation of another drug; or
(3) it is offered for sale under the name of another
drug;
(i) [(j)] if it is dangerous to health when used in the
dosage, or manner or with the frequency or duration prescribed,
recommended, or suggested in the labeling thereof;
[(k) if it is, or purports to be, or is represented as a drug
composed wholly or partly of insulin, unless:
[(1) it is from a batch with respect to which a
certificate or release has been issued pursuant to Section 506 of
the federal Act; and
[(2) such certificate or release is in effect with
respect to such drug;
[(l) if it is, or purports to be, or is represented as a drug
(except a drug for use in animals other than man) composed wholly or
partly of any kind of penicillin, streptomycin, chlortetracycline,
chloramphenicol, bacitracin, or any other antibiotic drug, or any
derivative thereof, unless:
[(1) it is from a batch with respect to which a
certificate or release has been issued pursuant to Section 507 of
the federal Act; and
[(2) the certificate or release is in effect with
respect to the drug; provided, that this subdivision shall not
apply to any drug or class of drugs exempted by regulations
promulgated under Section 507(c) or (d) of the federal Act;]
(j) [(m)] if it is a color additive, the intended use of
which is for the purpose of coloring only, unless its packaging and
labeling are in conformity with such packaging and labeling
requirements applicable to such color additive, as may be contained
in rules issued under Section 431.161(b);
(k) [(n)] in the case of any prescription drug distributed
or offered for sale in this state, unless the manufacturer, packer,
or distributor thereof includes in all advertisements and other
descriptive printed matter issued or caused to be issued by the
manufacturer, packer, or distributor with respect to that drug a
true statement of:
(1) the established name as defined in Subsection (d)
[(e)], printed prominently and in type at least half as large as
that used for any trade or brand name;
(2) the formula showing quantitatively each
ingredient of the drug to the extent required for labels under
Subsection (d) [(e)]; and
(3) other information in brief summary relating to
side effects, contraindications, and effectiveness as required in
regulations issued under Section 701(e) of the federal Act;
(l) [(o)] if it was manufactured, prepared, propagated,
compounded, or processed in an establishment in this state not
registered under Section 510 of the federal Act, if it was not
included in a list required by Section 510(j) of the federal Act, if
a notice or other information respecting it was not provided as
required by that section or Section 510(k) of the federal Act, or if
it does not bear symbols from the uniform system for identification
of devices prescribed under Section 510(e) of the federal Act as
required by regulation;
(m) [(p)] if it is a drug and its packaging or labeling is in
violation of an applicable regulation issued under Section 3 or 4 of
the federal [Federal] Poison Prevention Packaging Act of 1970 (15
[21] U.S.C. 1472 or 1473);
(n) [(q)] if a trademark, trade name, or other identifying
mark, imprint or device of another, or any likeness of the foregoing
has been placed thereon or on its container with intent to defraud;
(o) [(r)] in the case of any restricted device distributed
or offered for sale in this state, if:
(1) its advertising is false or misleading in any
particular; or
(2) it is sold, distributed, or used in violation of
regulations prescribed under Section 520(e) of the federal Act;
(p) [(s)] in the case of any restricted device distributed
or offered for sale in this state, unless the manufacturer, packer,
or distributor thereof includes in all advertisements and other
descriptive printed matter issued by the manufacturer, packer, or
distributor with respect to that device:
(1) a true statement of the device's established name
as defined in Section 502(e) of the federal Act, printed
prominently and in type at least half as large as that used for any
trade or brand name thereof; and
(2) a brief statement of the intended uses of the
device and relevant warnings, precautions, side effects, and
contraindications and in the case of specific devices made subject
to regulations issued under the federal Act, a full description of
the components of such device or the formula showing quantitatively
each ingredient of such device to the extent required in
regulations under the federal Act;
(q) [(t)] if it is a device subject to a performance
standard established under Section 514 of the federal Act, unless
it bears such labeling as may be prescribed in such performance
standard; or
(r) [(u)] if it is a device and there was a failure or
refusal:
(1) to comply with any requirement prescribed under
Section 518 of the federal Act respecting the device; or
(2) to furnish material required by or under Section
519 of the federal Act respecting the device.
SECTION 3. Section 431.113(c)(2), Health and Safety Code,
is amended to read as follows:
(2) Any drug dispensed by filling or refilling a
written or oral prescription of a practitioner licensed by law to
administer such drug shall be exempt from the requirements of
Section 431.112, except Sections 431.112(a)(1), (h)(2), and
(h)(3), [(i)(2), (i)(3), (k), and (l),] and the packaging
requirements of Sections 431.112(f), (g), and (m) [431.112(g), (h),
and (p)], if the drug bears a label containing the name and address
of the dispenser, the serial number and date of the prescription or
of its filling, the name of the prescriber, and, if stated in the
prescription, the name of the patient, and the directions for use
and cautionary statements, if any, contained in such prescription.
This exemption shall not apply to any drugs dispensed in the course
of the conduct of business of dispensing drugs pursuant to
diagnosis by mail, or to a drug dispensed in violation of
Subdivision (1).
SECTION 4. Section 481.002(22), Health and Safety Code, is
amended to read as follows:
(22) "Immediate precursor" means a substance the
director [commissioner] finds to be and by rule designates as
being:
(A) a principal compound commonly used or
produced primarily for use in the manufacture of a controlled
substance;
(B) a substance that is an immediate chemical
intermediary used or likely to be used in the manufacture of a
controlled substance; and
(C) a substance the control of which is necessary
to prevent, curtail, or limit the manufacture of a controlled
substance.
SECTION 5. Section 481.034(d), Health and Safety Code, is
amended to read as follows:
(d) In making a determination regarding a substance, the
commissioner shall consider:
(1) the actual or relative potential for its abuse;
(2) the scientific evidence of its pharmacological
effect, if known;
(3) the state of current scientific knowledge
regarding the substance;
(4) the history and current pattern of its abuse;
(5) the scope, duration, and significance of its
abuse;
(6) the risk to the public health;
(7) the potential of the substance to produce
psychological or physiological dependence liability; and
(8) whether the substance is a controlled substance
analogue, chemical precursor, or an immediate precursor of a
substance [already] controlled under this chapter.
SECTION 6. Section 481.077, Health and Safety Code, is
amended by adding Subsection (b-1) to read as follows:
(b-1) If the director names a chemical substance as a
chemical precursor for purposes of Subsection (a) or designates a
substance as an immediate precursor, a substance that is a
precursor of the chemical precursor or the immediate precursor is
not subject to control solely because it is a precursor of the
chemical precursor or the immediate precursor.
SECTION 7. Section 481.102, Health and Safety Code, is
amended to read as follows:
Sec. 481.102. PENALTY GROUP 1. Penalty Group 1 consists of:
(1) the following opiates, including their isomers,
esters, ethers, salts, and salts of isomers, esters, and ethers,
unless specifically excepted, if the existence of these isomers,
esters, ethers, and salts is possible within the specific chemical
designation:
Alfentanil;
Allylprodine;
Alphacetylmethadol;
Benzethidine;
Betaprodine;
Clonitazene;
Diampromide;
Diethylthiambutene;
Difenoxin not listed in Penalty Group 3 or 4;
Dimenoxadol;
Dimethylthiambutene;
Dioxaphetyl butyrate;
Dipipanone;
Ethylmethylthiambutene;
Etonitazene;
Etoxeridine;
Furethidine;
Hydroxypethidine;
Ketobemidone;
Levophenacylmorphan;
Meprodine;
Methadol;
Moramide;
Morpheridine;
Noracymethadol;
Norlevorphanol;
Normethadone;
Norpipanone;
Phenadoxone;
Phenampromide;
Phenomorphan;
Phenoperidine;
Piritramide;
Proheptazine;
Properidine;
Propiram;
Sufentanil;
Tilidine; and
Trimeperidine;
(2) the following opium derivatives, their salts,
isomers, and salts of isomers, unless specifically excepted, if the
existence of these salts, isomers, and salts of isomers is possible
within the specific chemical designation:
Acetorphine;
Acetyldihydrocodeine;
Benzylmorphine;
Codeine methylbromide;
Codeine-N-Oxide;
Cyprenorphine;
Desomorphine;
Dihydromorphine;
Drotebanol;
Etorphine, except hydrochloride salt;
Heroin;
Hydromorphinol;
Methyldesorphine;
Methyldihydromorphine;
Monoacetylmorphine;
Morphine methylbromide;
Morphine methylsulfonate;
Morphine-N-Oxide;
Myrophine;
Nicocodeine;
Nicomorphine;
Normorphine;
Pholcodine; and
Thebacon;
(3) the following substances, however produced,
except those narcotic drugs listed in another group:
(A) Opium and opiate not listed in Penalty Group
3 or 4, and a salt, compound, derivative, or preparation of opium or
opiate, other than thebaine derived butorphanol, nalmefene and its
salts, naloxone and its salts, and naltrexone and its salts, but
including:
Codeine not listed in Penalty Group 3 or 4;
Dihydroetorphine;
Ethylmorphine not listed in Penalty Group 3
or 4;
Granulated opium;
Hydrocodone not listed in Penalty Group 3;
Hydromorphone;
Metopon;
Morphine not listed in Penalty Group 3;
Opium extracts;
Opium fluid extracts;
Oxycodone;
Oxymorphone;
Powdered opium;
Raw opium;
Thebaine; and
Tincture of opium;
(B) a salt, compound, isomer, derivative, or
preparation of a substance that is chemically equivalent or
identical to a substance described by Paragraph (A), other than the
isoquinoline alkaloids of opium;
(C) Opium poppy and poppy straw;
(D) Cocaine, including:
(i) its salts, its optical, position, and
geometric isomers, and the salts of those isomers;
(ii) coca leaves and a salt, compound,
derivative, or preparation of coca leaves;
(iii) a salt, compound, derivative, or
preparation of a salt, compound, or derivative that is chemically
equivalent or identical to a substance described by Subparagraph
(i) or (ii), other than decocainized coca leaves or extractions of
coca leaves that do not contain cocaine or ecgonine; and
(E) concentrate of poppy straw, meaning the crude
extract of poppy straw in liquid, solid, or powder form that
contains the phenanthrine alkaloids of the opium poppy;
(4) the following opiates, including their isomers,
esters, ethers, salts, and salts of isomers, if the existence of
these isomers, esters, ethers, and salts is possible within the
specific chemical designation:
Acetyl-alpha-methylfentanyl
(N-[1-(1-methyl-2-phenethyl)-4-piperidinyl]-N-phenylacetamide);
Alpha-methylthiofentanyl
(N-[1-methyl-2-(2-thienyl)ethyl-4-piperidinyl]
-N-phenylpropanamide);
Alphaprodine;
Anileridine;
Beta-hydroxyfentanyl
(N-[1-(2-hydroxy-2-phenethyl)-4-piperidinyl]
-N-phenylpropanamide);
Beta-hydroxy-3-methylfentanyl;
Bezitramide;
Carfentanil;
Dihydrocodeine not listed in Penalty Group 3 or 4;
Diphenoxylate not listed in Penalty Group 3 or 4;
Fentanyl or alpha-methylfentanyl, or any other
derivative of Fentanyl;
Isomethadone;
Levomethorphan;
Levorphanol;
Metazocine;
Methadone;
Methadone-Intermediate,
4-cyano-2-dimethylamino-4, 4-diphenyl butane;
3-methylfentanyl(N-[3-methyl-1-(2-phenylethyl)-
4-piperidyl]-N- phenylpropanamide);
3-methylthiofentanyl(N-[3-methyl-1-(2-thienyl)
ethyl-4-piperidinyl]-N- phenylpropanamide);
Moramide-Intermediate, 2-methyl-3-morpholino-1,
1-diphenyl-propane- carboxylic acid;
Para-fluorofentanyl(N-(4-fluorophenyl)-N-1-
(2-phenylethyl)-4- piperidinylpropanamide);
PEPAP
(1-(2-phenethyl)-4-phenyl-4-acetoxypiperidine);
Pethidine (Meperidine);
Pethidine-Intermediate-A,
4-cyano-1-methyl-4-phenylpiperidine;
Pethidine-Intermediate-B,
ethyl-4-phenylpiperidine-4 carboxylate;
Pethidine-Intermediate-C,
1-methyl-4-phenylpiperidine-4-carboxylic acid;
Phenazocine;
Piminodine;
Racemethorphan;
Racemorphan;
Remifentanil; and
Thiofentanyl(N-phenyl-N-[1-(2-thienyl)ethyl-4-
piperidinyl]- propanamide);
(5) Flunitrazepam ([some] trade or other name [names]:
Rohypnol);
(6) Methamphetamine, including its salts, optical
isomers, and salts of optical isomers;
(7) Phenylacetone and methylamine, if possessed
together with intent to manufacture methamphetamine;
(8) Phencyclidine, including its salts; [and]
(9) Gamma hydroxybutyric acid (some trade or other
names: gamma hydroxybutyrate, GHB), including its salts; and [.]
(10) Ketamine.
SECTION 8. Section 481.103(a), Health and Safety Code, is
amended to read as follows:
(a) Penalty Group 2 consists of:
(1) any quantity of the following hallucinogenic
substances, their salts, isomers, and salts of isomers, unless
specifically excepted, if the existence of these salts, isomers,
and salts of isomers is possible within the specific chemical
designation:
alpha-ethyltryptamine;
4-bromo-2, 5-dimethoxyamphetamine (some trade or
other names: 4-bromo- 2, 5-dimethoxy-alpha-methylphenethylamine;
4-bromo-2, 5-DMA);
4-bromo-2, 5-dimethoxyphenethylamine;
Bufotenine (some trade and other names:
3-(beta-Dimethylaminoethyl)-5-hydroxyindole;
3-(2-dimethylaminoethyl)-5- indolol; N, N-dimethylserotonin;
5-hydroxy-N, N-dimethyltryptamine; mappine);
Diethyltryptamine (some trade and other names: N,
N-Diethyltryptamine, DET);
2, 5-dimethoxyamphetamine (some trade or other
names: 2, 5-dimethoxy- alpha-methylphenethylamine; 2, 5-DMA);
2, 5-dimethoxy-4-ethylamphetamine ([some] trade
or other name [names]: DOET);
2, 5-dimethoxy-4-(n)-propylthiophenethylamine
(trade or other name: 2C-T-7);
Dimethyltryptamine ([some] trade or [and] other
name [names]: DMT);
Dronabinol (synthetic) in sesame oil and
encapsulated in a soft gelatin capsule in a U.S. Food and Drug
Administration approved drug product (some trade or other names for
Dronabinol: (a6aR-trans)-6a,7,8,10a-tetrahydro- 6,6,
9-trimethyl-3-pentyl-6H- dibenzo [b,d]pyran-1-ol or
(-)-delta-9-(trans)- tetrahydrocannabinol);
Ethylamine Analog of Phencyclidine (some trade or
other names: N-ethyl-1-phenylcyclohexylamine,
(1-phenylcyclohexyl) ethylamine, N-(1- phenylcyclohexyl)
ethylamine, cyclohexamine, PCE);
Ibogaine (some trade or other names: 7-Ethyl-6,
6, beta 7, 8, 9, 10, 12, 13-octahydro-2-methoxy-6,
9-methano-5H-pyrido [1', 2':1, 2] azepino [5, 4-b] indole;
tabernanthe iboga.);
[Ketamine;]
Mescaline;
5-methoxy-3, 4-methylenedioxy amphetamine;
4-methoxyamphetamine (some trade or other names:
4-methoxy-alpha- methylphenethylamine; paramethoxyamphetamine;
PMA);
1-methyl- 4-phenyl-4-propionoxypiperidine (MPPP,
PPMP);
4-methyl-2, 5-dimethoxyamphetamine (some trade
and other names: 4- methyl-2,
5-dimethoxy-alpha-methylphenethylamine; "DOM"; "STP");
3,4-methylenedioxy methamphetamine (MDMA, MDM);
3,4-methylenedioxy amphetamine;
3,4-methylenedioxy N-ethylamphetamine (Also
known as N-ethyl MDA);
Nabilone (Another name for nabilone:
(+)-trans-3-(1,1-dimethylheptyl)- 6,6a,7,8,10,10a-hexahydro-1-
hydroxy-6,6- dimethyl-9H-dibenzo[b,d] pyran-9-one;
N-benzylpiperazine (some trade or other names:
BZP; 1-benzylpiperazine);
N-ethyl-3-piperidyl benzilate;
N-hydroxy-3,4-methylenedioxyamphetamine (Also
known as N-hydroxy MDA);
4-methylaminorex;
N-methyl-3-piperidyl benzilate;
Parahexyl (some trade or other names:
3-Hexyl-1-hydroxy-7, 8, 9, 10- tetrahydro-6, 6,
9-trimethyl-6H-dibenzo [b, d] pyran; Synhexyl);
1-Phenylcyclohexylamine;
1-Piperidinocyclohexanecarbonitrile (PCC);
Psilocin;
Psilocybin;
Pyrrolidine Analog of Phencyclidine (some trade
or other names: 1-(1-phenylcyclohexyl)-pyrrolidine, PCPy, PHP);
Tetrahydrocannabinols, other than marihuana, and
synthetic equivalents of the substances contained in the plant, or
in the resinous extractives of Cannabis, or synthetic substances,
derivatives, and their isomers with similar chemical structure and
pharmacological activity such as:
delta-1 cis or trans tetrahydrocannabinol,
and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol,
and their optical isomers;
delta-3, 4 cis or trans
tetrahydrocannabinol, and its optical isomers;
compounds of these structures, regardless of
numerical designation of atomic positions, since nomenclature of
these substances is not internationally standardized;
Thiophene Analog of Phencyclidine (some trade or
other names: 1-[1-(2-thienyl) cyclohexyl] piperidine; 2-Thienyl
Analog of Phencyclidine; TPCP, TCP);
1-[1-(2-thienyl)cyclohexyl]pyrrolidine (some
trade or other name [names]: TCPy);
1-(3-trifluoromethylphenyl)piperazine (trade or
other name: TFMPP); and
3,4,5-trimethoxy amphetamine;
(2) Phenylacetone (some trade or other names:
Phenyl-2-propanone; P2P, Benzymethyl ketone, methyl benzyl
ketone); and
(3) unless specifically excepted or unless listed in
another Penalty Group, a material, compound, mixture, or
preparation that contains any quantity of the following substances
having a potential for abuse associated with a depressant or
stimulant effect on the central nervous system:
Aminorex (some trade or other names: aminoxaphen;
2-amino-5-phenyl-2-oxazoline;
4,5-dihydro-5-phenyl-2-oxazolamine);
Amphetamine, its salts, optical isomers, and
salts of optical isomers;
Cathinone (some trade or other names:
2-amino-1-phenyl-1-propanone, alpha-aminopropiophenone,
2-aminopropiophenone);
Etorphine Hydrochloride;
Fenethylline and its salts;
Mecloqualone and its salts;
Methaqualone and its salts;
Methcathinone (some trade or other names:
2-methylamino-propiophenone; alpha-(methylamino)propriophenone;
2-(methylamino)-1-phenylpropan-1-one;
alpha-N-methylaminopropriophenone; monomethylpropion;
ephedrone, N-methylcathinone; methylcathinone; AL-464; AL-422;
AL-463; and UR 1431);
N-Ethylamphetamine, its salts, optical isomers,
and salts of optical isomers; and
N,N-dimethylamphetamine (some trade or other
names: N,N,alpha- trimethylbenzeneethaneamine;
N,N,alpha-trimethylphenethylamine), its salts, optical isomers,
and salts of optical isomers.
SECTION 9. Subchapter D, Chapter 481, Health and Safety
Code, is amended by adding Section 481.106 to read as follows:
Sec. 481.106. CLASSIFICATION OF CONTROLLED SUBSTANCE
ANALOGUE. For the purposes of the prosecution of an offense under
this subchapter involving the manufacture, delivery, or possession
of a controlled substance, Penalty Groups 1, 1-A, and 2 include a
controlled substance analogue that:
(1) has a chemical structure substantially similar to
the chemical structure of a controlled substance listed in the
applicable penalty group; or
(2) is specifically designed to produce an effect
substantially similar to, or greater than, a controlled substance
listed in the applicable penalty group.
SECTION 10. Section 481.123, Health and Safety Code, is
amended to read as follows:
Sec. 481.123. DEFENSE TO PROSECUTION FOR OFFENSE INVOLVING
[: DELIVERY, MANUFACTURE, OR POSSESSION OF] CONTROLLED SUBSTANCE
ANALOGUE. (a) It is an affirmative defense to the prosecution of
an offense under this subchapter involving the manufacture,
delivery, or possession of [For the purposes of this chapter,] a
controlled substance analogue that [is considered to be a
controlled substance listed in Penalty Group 1 or 1-A if] the
analogue:
(1) was not in any part [in whole or in part is]
intended for human consumption;
(2) was [and:
[(1) the chemical structure of the analogue is
substantially similar to the chemical structure of a controlled
substance listed in Schedule I or Penalty Group 1 or 1-A; or
[(2) the analogue is specifically designed to produce
an effect substantially similar to or greater than the effect of a
controlled substance listed in Schedule I or Penalty Group 1 or 1-A.
[(b) For the purposes of this chapter, a controlled
substance analogue is considered to be a controlled substance
listed in Penalty Group 2 if the analogue in whole or in part is
intended for human consumption and:
[(1) the chemical structure of the analogue is
substantially similar to the chemical structure of a controlled
substance listed in Schedule II or Penalty Group 2; or
[(2) the analogue is specifically designed to produce
an effect substantially similar to or greater than the effect of a
controlled substance listed in Schedule II or Penalty Group 2.
[(c) Except as authorized by this chapter, a person commits
an offense if the person knowingly or intentionally manufactures,
delivers, or possesses with intent to manufacture or deliver a
controlled substance analogue described by Subsection (a).
[(d) Except as authorized by this chapter, a person commits
an offense if the person knowingly or intentionally possesses a
controlled substance analogue described by Subsection (a).
[(e) Except as authorized by this chapter, a person commits
an offense if the person knowingly or intentionally manufactures,
delivers, or possesses with intent to manufacture or deliver a
controlled substance analogue described by Subsection (b).
[(f) Except as authorized by this chapter, a person commits
an offense if the person knowingly or intentionally possesses a
controlled substance analogue described by Subsection (b).
[(g) This section does not apply to:
[(1) a controlled substance;
[(2)] a substance for which there is an approved new
drug application under Section 505 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. Section 355); or
(3) was a substance for which an exemption for
investigational use has been granted under Section 505 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355), if the
actor's [to the extent that the substance is possessed,
manufactured, or delivered by a particular person under the
exemption and the person's] conduct with respect to the substance
is in accord with the exemption[; or
[(4) a substance, to the extent the substance is not
intended for human consumption, before an exemption under Section
505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section
355), takes effect with regard to the substance].
(b) [(h)] For the purposes of this section, Section 505 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355)
applies to the introduction or delivery for introduction of any new
drug into intrastate, interstate, or foreign commerce.
[(i) An offense under Subsection (c) is punishable in the
same manner as if the controlled substance analogue were a
controlled substance manufactured, delivered, or possessed with
intent to manufacture or deliver under Section 481.112.
[(j) An offense under Subsection (d) is punishable in the
same manner as if the controlled substance analogue were a
controlled substance possessed under Section 481.115.
[(k) An offense under Subsection (e) is punishable in the
same manner as if the controlled substance analogue were a
controlled substance manufactured, delivered, or possessed with
intent to manufacture or deliver under Section 481.113.
[(l) An offense under Subsection (f) is punishable in the
same manner as if the controlled substance analogue were a
controlled substance possessed under Section 481.116.]
SECTION 11. Sections 481.181(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) The director may enter controlled premises at any
reasonable time and inspect the premises and items described by
Subsection (b) in order to inspect, copy, and verify the
correctness of a record, report, or other document required to be
made or kept under this chapter and to perform other functions under
this chapter. For purposes of this subsection, "reasonable time"
means any time during the normal business hours of the person or
activity regulated under this chapter or any time an activity
regulated under this chapter is occurring on the premises. The
director shall:
(1) state the purpose of the entry;
(2) display [and present] to the owner, operator, or
agent in charge of the premises appropriate credentials; and
(3) deliver to the owner, operator, or agent in charge
of the premises a written notice of inspection authority.
(b) The director may:
(1) inspect and copy a record, report, or other
document required to be made or kept under this chapter;
(2) inspect, within reasonable limits and in a
reasonable manner, the controlled premises and all pertinent
equipment, finished and unfinished drugs, other substances, and
materials, containers, labels, records, files, papers, processes,
controls, and facilities as appropriate to verify a record, report,
or document required to be kept under this chapter or to administer
this chapter;
(3) examine and inventory stock of a controlled
substance and obtain samples of the controlled substance;
(4) examine a hypodermic syringe, needle, pipe, or
other instrument, device, contrivance, equipment, control,
container, label, or facility relating to a possible violation of
this chapter; and
(5) examine a material used, intended to be used, or
capable of being used to dilute or adulterate a controlled
substance.
SECTION 12. Section 481.182, Health and Safety Code, is
amended to read as follows:
Sec. 481.182. EVIDENTIARY RULES RELATING TO OFFER OF
DELIVERY. For the purpose of establishing a delivery under this
chapter, proof of an offer to sell must be corroborated by:
(1) a person other than the person to whom the offer is
made; or
(2) evidence other than a statement of the person to
whom the offer is made. [SEARCH WARRANTS. A search warrant may be
issued to search for and seize a controlled substance possessed or
manufactured in violation of this chapter. The application for the
issuance of and the execution of a search warrant under this section
must conform to applicable provisions of the Code of Criminal
Procedure.]
SECTION 13. Section 481.183, Health and Safety Code, is
amended to read as follows:
Sec. 481.183. EVIDENTIARY RULES RELATING TO [DELIVERY OR]
DRUG PARAPHERNALIA. (a) [For the purpose of establishing the
delivery of a controlled substance, counterfeit substance, or drug
paraphernalia, proof of an offer to sell must be corroborated by a
person other than the offeree or by evidence other than a statement
of the offeree.
[(b)] In considering whether an item is drug paraphernalia
under this chapter, a court or other authority shall consider, in
addition to all other logically relevant factors, and subject to
rules of evidence:
(1) statements by an owner or person in control of the
object concerning its use;
(2) the existence of any residue of a controlled
substance on the object;
(3) direct or circumstantial evidence of the intent of
an owner or other person in control of the object to deliver it to a
person whom the person knows or should reasonably know intends to
use the object to facilitate a violation of this chapter;
(4) oral or written instructions provided with the
object concerning its use;
(5) descriptive material accompanying the object that
explains or depicts its use;
(6) the manner in which the object is displayed for
sale;
(7) whether the owner or person in control of the
object is a supplier of similar or related items to the community,
such as a licensed distributor or dealer of tobacco products;
(8) direct or circumstantial evidence of the ratio of
sales of the object to the total sales of the business enterprise;
(9) the existence and scope of uses for the object in
the community;
(10) the physical design characteristics of the item;
and
(11) expert testimony concerning the item's use.
(b) [(c)] The innocence of an owner or other person in
charge of an object as to a direct violation of this chapter does
not prevent a finding that the object is intended or designed for
use as drug paraphernalia.
SECTION 14. Section 481.184(c), Health and Safety Code, is
amended to read as follows:
(c) This chapter does not impose a liability on an
authorized state, county, or municipal officer engaged in the
lawful performance of official [the officer's] duties.
SECTION 15. Section 481.186(b), Health and Safety Code, is
amended to read as follows:
(b) In the exercise of regulatory functions under this
chapter, the director may rely on results, information, and
evidence relating to the regulatory functions of this chapter
received from the Federal Drug Enforcement Administration or a
[and] state agency [agencies].
SECTION 16. Article 18.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be
issued to search for and seize:
(1) property acquired by theft or in any other manner
which makes its acquisition a penal offense;
(2) property specially designed, made, or adapted for
or commonly used in the commission of an offense;
(3) arms and munitions kept or prepared for the
purposes of insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling
equipment, or gambling paraphernalia;
(6) obscene materials kept or prepared for commercial
distribution or exhibition, subject to the additional rules set
forth by law;
(7) a drug, controlled substance, immediate
precursor, chemical precursor, or other controlled substance
property, including an apparatus or paraphernalia [drugs] kept,
prepared, or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited
by law;
(9) implements or instruments used in the commission
of a crime;
(10) property or items, except the personal writings
by the accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an
offense;
(11) persons; or
(12) contraband subject to forfeiture under Chapter 59
of this code.
SECTION 17. Article 481.034(f), Health and Safety Code, is
repealed.
SECTION 18. To the extent of any conflict between Sections
431.002(8), 431.112, and 431.113(c)(2), Health and Safety Code,
and those provisions as amended by Sections 1, 4, and 5 of S.B. No.
1400, Acts of the 78th Legislature, Regular Session, 2003, this Act
prevails.
SECTION 19. (a) This Act takes effect September 1, 2003.
(b) The change in law made by this Act applies only to an
offense committed on or after September 1, 2003. An offense
committed before September 1, 2003, is covered by the law in effect
when the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this subsection, an
offense was committed before September 1, 2003, if any element of
the offense was committed before that date.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2192 was passed by the House on May 2,
2003, by a non-record vote; and that the House concurred in Senate
amendments to H.B. No. 2192 on May 23, 2003, by a non-record vote;
and that the House adopted H.C.R. No. 273 authorizing certain
corrections in H.B. No. 2192 on May 29, 2003, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2192 was passed by the Senate, with
amendments, on May 22, 2003, by the following vote: Yeas 31, Nays
0; and that the Senate adopted H.C.R. No. 273 authorizing certain
corrections in H.B. No. 2192 on May 29, 2003, by a viva-voce vote.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor