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A BILL TO BE ENTITLED
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AN ACT
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relating to the prosecution and punishment of certain offenses |
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under the Texas Controlled Substances Act and the regulation and |
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scheduling of certain substances; creating criminal offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 431, Health and Safety Code, is amended |
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by adding Subchapter G-1 to read as follows: |
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SUBCHAPTER G-1. ABUSABLE SYNTHETIC SUBSTANCES |
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Sec. 431.171. DESIGNATION OF CONSUMER COMMODITY AS ABUSABLE |
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SYNTHETIC SUBSTANCE. (a) The commissioner may designate a consumer |
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commodity as an abusable synthetic substance if the commissioner |
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determines that the consumer commodity is likely an abusable |
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synthetic substance and the importation, manufacture, |
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distribution, or retail sale of the commodity poses a threat to |
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public health. |
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(b) In determining whether a consumer commodity is an |
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abusable synthetic substance, the commissioner may consider: |
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(1) whether the commodity is sold at a price higher |
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than similar commodities are ordinarily sold; |
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(2) any evidence of clandestine importation, |
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manufacture, distribution, or diversion from legitimate channels; |
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(3) any evidence suggesting the product is intended |
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for human consumption, regardless of any consumption prohibitions |
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or warnings on the packaging of the commodity; or |
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(4) whether any of the following factors suggest the |
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commodity is an abusable synthetic substance intended for illicit |
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drug use: |
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(A) the appearance of the packaging of the |
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commodity; |
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(B) oral or written statements or |
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representations of a person who sells, manufactures, distributes, |
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or imports the commodity; |
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(C) the methods by which the commodity is |
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distributed; and |
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(D) the manner in which the commodity is sold to |
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the public. |
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Sec. 431.172. APPLICABILITY OF CHAPTER TO ABUSABLE |
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SYNTHETIC SUBSTANCE. A commodity classified as an abusable |
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synthetic substance by the commissioner under Section 431.171 is |
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subject to: |
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(1) the provisions of this chapter that apply to food |
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and cosmetics, including provisions relating to adulteration, |
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packaging, misbranding, and inspection; and |
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(2) all enforcement actions under Subchapter C. |
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SECTION 2. Sections 481.002(5) and (6), Health and Safety |
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Code, are amended to read as follows: |
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(5) "Controlled substance" means a substance, |
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including a drug, an adulterant, and a dilutant, listed in |
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Schedules I through V or Penalty Group [Groups] 1, 1-A, [or] 2, 2-A, |
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3, or [through] 4. The term includes the aggregate weight of any |
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mixture, solution, or other substance containing a controlled |
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substance. |
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(6) "Controlled substance analogue" means: |
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(A) a substance with a chemical structure |
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substantially similar to the chemical structure of a controlled |
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substance in Schedule I or II or Penalty Group 1, 1-A, [or] 2, or |
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2-A; or |
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(B) a substance specifically designed to produce |
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an effect substantially similar to, or greater than, the effect of a |
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controlled substance in Schedule I or II or Penalty Group 1, 1-A, |
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[or] 2, or 2-A. |
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SECTION 3. Section 481.036(c), Health and Safety Code, is |
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amended to read as follows: |
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(c) An action by the commissioner that establishes or |
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modifies a schedule under this subchapter may take effect not |
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earlier than the 21st day after the date on which the schedule or |
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modification is published in the Texas Register unless an emergency |
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exists that necessitates earlier action to avoid an imminent hazard |
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to the public safety. The commissioner may determine that an |
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imminent hazard to the public safety exists if the commissioner |
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makes findings with respect to each of the factors listed in |
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Sections 481.034(d)(4), (5), and (6) that indicate that the |
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substance poses a danger to health and safety if not immediately |
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controlled. |
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SECTION 4. Section 481.106, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 481.106. CLASSIFICATION OF CONTROLLED SUBSTANCE |
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ANALOGUE. For the purposes of the prosecution of an offense under |
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this subchapter involving the manufacture, delivery, or possession |
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of a controlled substance, Penalty Groups 1, 1-A, [and] 2, and 2-A |
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include a controlled substance analogue that: |
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(1) has a chemical structure substantially similar to |
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the chemical structure of a controlled substance listed in the |
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applicable penalty group; or |
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(2) is specifically designed to produce an effect |
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substantially similar to, or greater than, a controlled substance |
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listed in the applicable penalty group. |
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SECTION 5. Section 481.123(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) It is an affirmative defense to the prosecution of an |
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offense under this subchapter involving the manufacture, delivery, |
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or possession of a controlled substance analogue that the analogue: |
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(1) [was not in any part intended for human
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consumption;
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[(2)] was a substance for which there is an approved |
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new drug application under Section 505 of the Federal Food, Drug, |
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and Cosmetic Act (21 U.S.C. Section 355); or |
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(2) [(3)] was a substance for which an exemption for |
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investigational use has been granted under Section 505 of the |
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Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355), if the |
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actor's conduct with respect to the substance is in accord with the |
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exemption. |
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SECTION 6. Subtitle C, Title 6, Health and Safety Code, is |
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amended by adding Chapter 488 to read as follows: |
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CHAPTER 488. HAZARDOUS CONTROLLED SUBSTANCE EMERGENCY SCHEDULING |
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Sec. 488.001. DEFINITIONS. In this chapter, "commissioner" |
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and "controlled substance" have the meanings assigned by Chapter |
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481. |
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Sec. 488.002. DESIGNATION OF HAZARDOUS CONTROLLED |
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SUBSTANCE; CRITERIA. When the commissioner under Section 481.032 |
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modifies Schedule I to add a controlled substance, the commissioner |
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at that time may designate the substance as a hazardous controlled |
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substance if the commissioner: |
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(1) finds that the substance: |
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(A) is chemically similar in structure or effect |
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to a controlled substance listed in a penalty group under |
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Subchapter D, Chapter 481; or |
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(B) poses an imminent danger to life or health; |
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and |
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(2) receives approval for the hazardous controlled |
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substance designation from the governor, lieutenant governor, and |
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attorney general. |
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Sec. 488.003. EMERGENCY SCHEDULING. (a) The commissioner |
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shall publish a list of the controlled substances that are |
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designated as hazardous controlled substances by filing a certified |
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copy of the list with the secretary of state for publication in the |
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Texas Register at the time the commissioner files a copy of the |
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schedules under Section 481.036. |
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(b) The designation of a substance as a hazardous controlled |
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substance takes effect on the date the modification that added the |
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substance to Schedule I takes effect according to Section |
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481.036(c). |
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Sec. 488.004. OFFENSE: MANUFACTURE OR DELIVERY OF |
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HAZARDOUS CONTROLLED SUBSTANCE. (a) A person commits an offense |
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if the person knowingly manufactures, delivers, or possesses with |
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intent to deliver a controlled substance designated as a hazardous |
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controlled substance under this chapter. |
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(b) An offense under Subsection (a) is a Class A misdemeanor |
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if the amount of the controlled substance to which the offense |
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applies is, by aggregate weight, including adulterants or |
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dilutants, less than 28 grams. |
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(c) An offense under Subsection (a) is a state jail felony |
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if the amount of the controlled substance to which the offense |
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applies is, by aggregate weight, including adulterants or |
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dilutants, 28 grams or more but less than 200 grams. |
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(d) An offense under Subsection (a) is a felony of the third |
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degree if the amount of the controlled substance to which the |
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offense applies is, by aggregate weight, including adulterants or |
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dilutants, 200 grams or more but less than 400 grams. |
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(e) An offense under Subsection (a) is a felony of the |
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second degree if the amount of the controlled substance to which the |
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offense applies is, by aggregate weight, including adulterants or |
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dilutants, 400 grams or more. |
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Sec. 488.005. OFFENSE: POSSESSION OF HAZARDOUS CONTROLLED |
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SUBSTANCE. (a) A person commits an offense if the person |
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knowingly possesses a controlled substance designated as a |
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hazardous controlled substance under this chapter. |
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(b) An offense under Subsection (a) is a Class B misdemeanor |
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if the amount of the controlled substance possessed is, by |
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aggregate weight, including adulterants or dilutants, less than 28 |
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grams. |
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(c) An offense under Subsection (a) is a Class A misdemeanor |
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if the amount of the controlled substance possessed is, by |
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aggregate weight, including adulterants or dilutants, 28 grams or |
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more but less than 200 grams. |
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(d) An offense under Subsection (a) is a state jail felony |
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if the amount of the controlled substance possessed is, by |
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aggregate weight, including adulterants or dilutants, 200 grams or |
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more but less than 400 grams. |
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(e) An offense under Subsection (a) is a felony of the third |
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degree if the amount of the controlled substance possessed is, by |
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aggregate weight, including adulterants or dilutants, 400 grams or |
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more. |
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Sec. 488.006. EFFECT ON OTHER PROVISIONS OF SUBTITLE. If |
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conduct that is an offense under this chapter is also an offense |
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under another provision of this subtitle, the actor may be |
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prosecuted under either this chapter or the other provision or |
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both. |
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Sec. 488.007. APPLICABILITY. This chapter does not apply |
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to a controlled substance that is listed in a penalty group under |
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Subchapter D, Chapter 481. |
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Sec. 488.008. EXPIRATION. The designation of a controlled |
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substance as a hazardous controlled substance expires on September |
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1 of each odd-numbered year for any designation in effect before |
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January 1 of that year. |
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SECTION 7. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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governed by the law in effect on the date the offense was committed, |
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and the former law is continued in effect for that purpose. For |
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purposes of this section, an offense was committed before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 8. This Act takes effect September 1, 2015. |
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