82R4668 JSC-D

By: Dutton H.B. No. 853

A BILL TO BE ENTITLED

AN ACT

relating to the penalty for certain offenders for possession of a small amount of certain controlled substances.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 481.115, Health and Safety Code, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows:

(b) Except as provided by Subsection (b-1), an [An] offense under Subsection (a) is a Class A misdemeanor with a minimum term of confinement of 180 days [state jail felony] if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.

(b-1) An offense under Subsection (a) is a state jail felony if:

(1) the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram; and

(2) the person has been previously convicted of an offense under this section or Section 481.1151, 481.116, 481.117, 481.118, or 481.121.

SECTION 2. Section 481.1151, Health and Safety Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:

(b) An offense under this section is:

(1) a Class A misdemeanor with a minimum term of confinement of 180 days [state jail felony] if the number of abuse units of the controlled substance is fewer than 20, except as provided by Subsection (c);

(2) a felony of the third degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80;

(3) a felony of the second degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000;

(4) a felony of the first degree if the number of abuse units of the controlled substance is 4,000 or more but fewer than 8,000; and

(5) punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000, if the number of abuse units of the controlled substance is 8,000 or more.

(c) An offense under this section is a state jail felony if:

(1) the number of abuse units of the controlled substance is fewer than 20; and

(2) the person has been previously convicted of an offense under this section or Section 481.115, 481.116, 481.117, 481.118, or 481.121.

SECTION 3. Section 481.116, Health and Safety Code, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows:

(b) Except as provided by Subsection (b-1), an [An] offense under Subsection (a) is a Class A misdemeanor with a minimum term of confinement of 180 days [state jail felony] if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.

(b-1) An offense under Subsection (a) is a state jail felony if:

(1) the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram; and

(2) the person has been previously convicted of an offense under this section or Section 481.115, 481.1151, 481.117, 481.118, or 481.121.

SECTION 4. Section 11, Article 42.12, Code of Criminal Procedure, is amended by adding Subsection (m) to read as follows:

(m) A judge who grants community supervision to a person convicted of a Class A misdemeanor under Section 481.115(b), 481.1151(b)(1), or 481.116(b), Health and Safety Code, shall require, as a condition of community supervision, that the person successfully complete an educational program on substance abuse awareness approved by the Department of State Health Services.

SECTION 5. Section 15(a)(1), Article 42.12, Code of Criminal Procedure, is amended to read as follows:

(1) On conviction of a state jail felony under Section 481.115(b-1) [481.115(b)], 481.1151(c) [481.1151(b)(1)], 481.116(b-1) [481.116(b)], 481.121(b)(3), or 481.129(g)(1), Health and Safety Code, that is punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence and place the defendant on community supervision, unless the defendant has previously been convicted of a felony, other than a felony punished under Section 12.44(a), Penal Code, or unless the conviction resulted from an adjudication of the guilt of a defendant previously placed on deferred adjudication community supervision for the offense, in which event the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed. The provisions of this subdivision requiring the judge to suspend the imposition of the sentence and place the defendant on community supervision do not apply to a defendant who under Section 481.1151(c) [481.1151(b)(1)], Health and Safety Code, possessed more than five abuse units of the controlled substance or under Section 481.121(b)(3), Health and Safety Code, possessed more than one pound of marihuana.

SECTION 6. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act 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 section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date.

SECTION 7. This Act takes effect September 1, 2011.