BILL ANALYSIS |
C.S.H.B. 81 |
By: Moody |
Criminal Jurisprudence |
Committee Report (Substituted) |
BACKGROUND AND PURPOSE
Interested parties contend that the punishment for the possession of a small amount of marihuana is too harsh when considering additional consequences that a conviction for such possession may bring. C.S.H.B. 81 seeks to address this issue by revising penalties associated with the possession of certain small amounts of marihuana.
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CRIMINAL JUSTICE IMPACT
It is the committee's opinion that this bill expressly does one or more of the following: creates a criminal offense, increases the punishment for an existing criminal offense or category of offenses, or changes the eligibility of a person for community supervision, parole, or mandatory supervision.
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RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
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ANALYSIS
C.S.H.B. 81 amends the Health and Safety Code to exclude the knowing or intentional possession of a usable quantity of marihuana in an amount that is one ounce or less from the Class B misdemeanor offense of possession of marihuana. The bill makes a person who knowingly or intentionally possesses such an amount of marihuana liable to the state for a civil penalty capped at $250 but establishes that such conduct does not constitute an offense. The bill establishes that the imposition of this civil penalty is not a conviction and may not be considered a conviction for any purpose. The bill creates the Class C misdemeanor offense of subsequent possession of a small amount of marihuana for a person who knowingly or intentionally possesses a usable quantity of marihuana in an amount that is one ounce or less and has previously been assessed a civil penalty three times for a possession of a small amount of marihuana violation. The bill establishes as a defense to prosecution for possession or delivery of drug paraphernalia that drug paraphernalia was knowingly or intentionally used, possessed, or delivered solely in furtherance of a possession of a small amount of marihuana civil violation or the offense of subsequent possession of a small amount of marihuana.
C.S.H.B. 81 amends the Code of Criminal Procedure to prohibit a peace officer from making an arrest solely because of a possession of a small amount of marihuana civil violation regardless of whether the person may be subject to prosecution for subsequent possession of a small amount of marihuana and to authorize a peace officer to issue to a person a citation that contains written notice of the time and place the person must appear before a justice court, the name and address of the person charged, and the violation charged. The bill requires the citation to notify the person that the person may be subject to prosecution for a Class C misdemeanor for subsequent possession of a small amount of marihuana if the person has previously been assessed a civil penalty for possession of a small amount of marihuana three times. The bill authorizes the district or county attorney of the county in which the possession of a small amount of marihuana violation is alleged to have occurred to bring an action in the justice court of the county to collect the applicable civil penalty from the person so cited or to charge the person with a subsequent possession of a small amount of marihuana offense if the person has previously been assessed such a civil penalty three times.
C.S.H.B. 81 requires that a civil action for a possession of a small amount of marihuana violation be conducted in the manner provided by statutory provisions governing criminal proceedings in justice and municipal courts as amended by the bill as if an offense were charged. The bill prohibits the court from issuing an arrest warrant for a possession of a small amount of marihuana violation or a subsequent possession of a small amount of marihuana offense and prohibits the court from requiring the person liable for the civil penalty or who commits the offense to give bail. The bill establishes that a citation issued in such proceedings is considered to be a sufficient complaint for certain purposes if the citation is filed with the court by a district or county attorney. The bill prohibits a person liable for the civil penalty for a possession of a small amount of marihuana violation from appealing under a certain provision.
C.S.H.B. 81 requires the court to determine whether the person subject to the civil penalty for a possession of a small amount of marihuana violation is indigent before imposing the penalty, requires the court to waive the penalty if it determines the person is indigent, and authorizes the court to order the indigent person to complete not more than 10 hours of community service. The bill authorizes the court to waive or reduce the civil penalty for a non-indigent person if the person attends a program that provides education in substance abuse and is approved by the Department of State Health Services, the Texas Department of Licensing and Regulation, or the Texas Department of Public Safety or if the person performs not more than 10 hours of community service, as ordered by the court. The bill requires the court, if during the proceeding for a possession of a small amount of marihuana violation the court finds that the person has previously been assessed a civil penalty for such a violation one or two times, to order the person to attend such an education program, in addition to assessing a civil penalty. The bill requires the court, if during the proceeding the court finds that the person has previously been assessed such a civil penalty three times, to suspend the proceedings and notify the appropriate prosecuting attorney so that the person may be charged with the offense of subsequent possession of a small amount of marihuana. The bill requires the judge, on a plea of guilty or nolo contendere for such an offense by a defendant and payment of all court costs, to defer further proceedings without entering an adjudication of guilt and place the defendant on probation. The bill authorizes the court to issue a capias for the arrest of a person who fails to appear or to make payment as directed by the citation issued under such proceedings.
C.S.H.B. 81 authorizes law enforcement to seize any marihuana in possession of a person subject to a civil penalty for a possession of a small amount of marihuana violation or to prosecution for an offense for subsequent possession of a small amount of marihuana and requires law enforcement to preserve marihuana so seized as if the marihuana were evidence of an offense for the subsequent possession of a small amount of marihuana pending the final resolution of the civil proceeding. The bill subjects any such seized marihuana to forfeiture after final resolution of the civil proceeding and requires that the seized marihuana be disposed of in accordance with statutory provisions governing the disposition of a controlled substance property or plant. The bill makes the identity of a person cited for a possession of a small amount of marihuana violation confidential information under state public information law, unless the person is charged with the offense of subsequent possession of a small amount of marihuana in connection with that citation. The bill makes the identity of a person found liable for a civil penalty for a possession of a small amount of marihuana violation confidential under that law. These seizure and confidentiality provisions apply to an indigent person for whom a court waives the civil penalty.
C.S.H.B. 81 establishes that its provisions relating to the proceedings for certain marihuana possession violations and offenses expressly do not affect the authority of a peace officer to conduct a search or seize marihuana or other property as contraband.
C.S.H.B. 81 amends the Family Code to include conduct constituting a possession of a small amount of marihuana civil violation or the offense of subsequent possession of a small amount of marihuana among conduct that constitutes delinquent conduct.
C.S.H.B. 81 amends the Local Government Code to include the filing of a civil action by the state under the bill's provisions relating to a possession of a small amount of marihuana violation among the actions for which a justice of the peace is not entitled to a fee.
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EFFECTIVE DATE
September 1, 2017.
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COMPARISON OF ORIGINAL AND SUBSTITUTE
While C.S.H.B. 81 may differ from the original in minor or nonsubstantive ways, the following comparison is organized and formatted in a manner that indicates the substantial differences between the introduced and committee substitute versions of the bill.
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