By: Price, et al. (Senate Sponsor - Schwertner) H.B. No. 1212

(In the Senate - Received from the House May 4, 2015; May 5, 2015, read first time and referred to Committee on Health and Human Services; May 18, 2015, reported adversely, with favorable Committee Substitute by the following vote: Yeas 9, Nays 0; May 18, 2015, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR H.B. No. 1212 By: Estes

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution and punishment of certain offenses under the Texas Controlled Substances Act and the regulation and scheduling of certain substances; creating criminal offenses.

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

SECTION 1. Chapter 431, Health and Safety Code, is amended by adding Subchapter G-1 to read as follows:

SUBCHAPTER G-1. ABUSABLE SYNTHETIC SUBSTANCES

Sec. 431.171. DESIGNATION OF CONSUMER COMMODITY AS ABUSABLE SYNTHETIC SUBSTANCE. (a) The commissioner may designate a consumer commodity as an abusable synthetic substance if the commissioner determines that the consumer commodity is likely an abusable synthetic substance and the importation, manufacture, distribution, or retail sale of the commodity poses a threat to public health.

(b) In determining whether a consumer commodity is an abusable synthetic substance, the commissioner may consider:

(1) whether the commodity is sold at a price higher than similar commodities are ordinarily sold;

(2) any evidence of clandestine importation, manufacture, distribution, or diversion from legitimate channels;

(3) any evidence suggesting the product is intended for human consumption, regardless of any consumption prohibitions or warnings on the packaging of the commodity; or

(4) whether any of the following factors suggest the commodity is an abusable synthetic substance intended for illicit drug use:

(A) the appearance of the packaging of the commodity;

(B) oral or written statements or representations of a person who sells, manufactures, distributes, or imports the commodity;

(C) the methods by which the commodity is distributed; and

(D) the manner in which the commodity is sold to the public.

Sec. 431.172. APPLICABILITY OF CHAPTER TO ABUSABLE SYNTHETIC SUBSTANCE. A commodity classified as an abusable synthetic substance by the commissioner under Section 431.171 is subject to:

(1) the provisions of this chapter that apply to food and cosmetics, including provisions relating to adulteration, packaging, misbranding, and inspection; and

(2) all enforcement actions under Subchapter C.

SECTION 2. Sections 481.002(5) and (6), Health and Safety Code, are amended to read as follows:

(5) "Controlled substance" means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group [Groups] 1, 1-A, [or] 2, 2-A, 3, or [through] 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

(6) "Controlled substance analogue" means:

(A) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, [or] 2, or 2-A; or

(B) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, [or] 2, or 2-A.

SECTION 3. Section 481.036(c), Health and Safety Code, is amended to read as follows:

(c) An action by the commissioner that establishes or modifies a schedule under this subchapter may take effect not earlier than the 21st day after the date on which the schedule or modification is published in the Texas Register unless an emergency exists that necessitates earlier action to avoid an imminent hazard to the public safety. The commissioner may determine that an imminent hazard to the public safety exists if the commissioner makes findings with respect to each of the factors listed in Sections 481.034(d)(4), (5), and (6) that indicate that the substance poses a danger to health and safety if not immediately controlled.

SECTION 4. Section 481.106, Health and Safety Code, is amended 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, and 2-A 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 5. Section 481.123(a), Health and Safety Code, is amended to read as follows:

(a) It is an affirmative defense to the prosecution of an offense under this subchapter involving the manufacture, delivery, or possession of a controlled substance analogue that the analogue:

(1) [was not in any part intended for human consumption;

[(2)] was 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

(2) [(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 conduct with respect to the substance is in accord with the exemption.

SECTION 6. Subtitle C, Title 6, Health and Safety Code, is amended by adding Chapter 488 to read as follows:

CHAPTER 488. HAZARDOUS CONTROLLED SUBSTANCE EMERGENCY SCHEDULING

Sec. 488.001. DEFINITIONS. In this chapter, "commissioner" and "controlled substance" have the meanings assigned by Chapter 481.

Sec. 488.002. DESIGNATION OF HAZARDOUS CONTROLLED SUBSTANCE; CRITERIA. When the commissioner under Section 481.032 modifies Schedule I to add a controlled substance, the commissioner at that time may designate the substance as a hazardous controlled substance if the commissioner:

(1) finds that the substance:

(A) is chemically similar in structure or effect to a controlled substance listed in a penalty group under Subchapter D, Chapter 481; or

(B) poses an imminent danger to life or health; and

(2) receives approval for the hazardous controlled substance designation from the governor, lieutenant governor, and attorney general.

Sec. 488.003. EMERGENCY SCHEDULING. (a) The commissioner shall publish a list of the controlled substances that are designated as hazardous controlled substances by filing a certified copy of the list with the secretary of state for publication in the Texas Register at the time the commissioner files a copy of the schedules under Section 481.036.

(b) The designation of a substance as a hazardous controlled substance takes effect on the date the modification that added the substance to Schedule I takes effect according to Section 481.036(c).

Sec. 488.004. OFFENSE: MANUFACTURE OR DELIVERY OF HAZARDOUS CONTROLLED SUBSTANCE. (a) A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance designated as a hazardous controlled substance under this chapter.

(b) An offense under Subsection (a) is a Class A misdemeanor if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than 28 grams.

(c) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams.

(d) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.

(e) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Sec. 488.005. OFFENSE: POSSESSION OF HAZARDOUS CONTROLLED SUBSTANCE. (a) A person commits an offense if the person knowingly possesses a controlled substance designated as a hazardous controlled substance under this chapter.

(b) An offense under Subsection (a) is a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams.

(c) An offense under Subsection (a) is a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams.

(d) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.

(e) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Sec. 488.006. EFFECT ON OTHER PROVISIONS OF SUBTITLE. If conduct that is an offense under this chapter is also an offense under another provision of this subtitle, the actor may be prosecuted under either this chapter or the other provision or both.

Sec. 488.007. APPLICABILITY. This chapter does not apply to a controlled substance that is listed in a penalty group under Subchapter D, Chapter 481.

Sec. 488.008. EXPIRATION. The designation of a controlled substance as a hazardous controlled substance expires on September 1 of each odd-numbered year for any designation in effect before January 1 of that year.

SECTION 7. 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 governed by the law in effect on the date 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 occurred before that date.

SECTION 8. This Act takes effect September 1, 2015.

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