85R1455 JSC-D

By: Rodríguez S.B. No. 170

A BILL TO BE ENTITLED

AN ACT

relating to a civil action to collect a civil penalty for possession of certain small amounts of marihuana and an exception to prosecution for possession of associated drug paraphernalia.

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

SECTION 1. Section 481.121(b), Health and Safety Code, is amended to read as follows:

(b) An offense under Subsection (a) is:

(1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less but more than one ounce;

(2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

(3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

(4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

(5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

(6) 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 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

SECTION 2. Subchapter D, Chapter 481, Health and Safety Code, is amended by adding Section 481.1211 to read as follows:

Sec. 481.1211. CIVIL PENALTY: POSSESSION OF SMALL AMOUNT OF MARIHUANA. (a) A person who knowingly or intentionally possesses a usable quantity of marihuana in an amount that is one ounce or less is liable to the state for a civil penalty not to exceed $250.

(b) The imposition of a civil penalty under this section is not a conviction and may not be considered a conviction for any purpose.

(c) A peace officer may not make an arrest solely because of a violation of this section. A peace officer may issue to a person who violates this section 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 civil violation charged.

(d) The district or county attorney of the county in which the conduct described by Subsection (a) is alleged to have occurred may bring an action in the justice court of the county to collect the civil penalty of a person who receives a citation under this section.

(e) A civil action under this section shall be conducted in the manner provided by Chapter 45, Code of Criminal Procedure, as if an offense were charged, except that:

(1) the court may not:

(A) issue an arrest warrant under Article 45.014, Code of Criminal Procedure; or

(B) require the person liable for a civil penalty to give bail under Article 45.016, Code of Criminal Procedure;

(2) a citation issued under this section is considered to be a sufficient complaint for purposes of Articles 45.018 and 45.019, Code of Criminal Procedure, if the citation is filed with the court by a district or county attorney; and

(3) a person liable for a civil penalty under this section may not appeal under Article 45.042, Code of Criminal Procedure.

(f)(1) Before imposing a civil penalty under this section, the court shall determine whether the person subject to the penalty is indigent. If the court determines the person is indigent, the court shall waive the penalty and may order the person to complete not more than 10 hours of community service.

(2) Subsections (i) and (j) apply to a person for whom a court waives a penalty under Subdivision (1).

(g) The court may waive or reduce the civil penalty for a person other than a person described by Subsection (f) if:

(1) the person subject to a civil penalty under this section attends a program that provides education in substance abuse and is approved by the Department of State Health Services or the Texas Department of Public Safety; or

(2) the person performs not more than 10 hours of community service, as ordered by the court.

(h) The court may issue a capias for the arrest of a person who fails to appear or to make payment, as directed by a citation issued under this section.

(i) Law enforcement may seize any marihuana in possession of a person subject to a civil penalty under this section. If marihuana is seized under this section, law enforcement shall preserve the marihuana as if the marihuana were evidence of an offense under this chapter pending the final resolution of a civil proceeding under this section. After final resolution of a civil proceeding under this section, any marihuana seized is subject to forfeiture and shall be disposed of in accordance with Section 481.159.

(j) The identity of a person cited or found liable for a civil penalty under this section is confidential information under Section 552.101, Government Code.

SECTION 3. Section 481.125, Health and Safety Code, is amended by adding Subsection (g) to read as follows:

(g) It is a defense to prosecution under this section that drug paraphernalia was knowingly or intentionally used, possessed, or delivered solely in furtherance of a violation of Section 481.1211.

SECTION 4. Section 51.03(a), Family Code, is amended to read as follows:

(a) Delinquent conduct is:

(1) conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail;

(2) conduct that violates a lawful order of a court under circumstances that would constitute contempt of that court in:

(A) a justice or municipal court;

(B) a county court for conduct punishable only by a fine; or

(C) a truancy court;

(3) conduct that violates Section 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code; [or]

(4) conduct that violates Section 106.041, Alcoholic Beverage Code, relating to driving under the influence of alcohol by a minor (third or subsequent offense); or

(5) conduct for which a person is subject to a civil penalty under Section 481.1211, Health and Safety Code.

SECTION 5. Section 118.124, Local Government Code, is amended to read as follows:

Sec. 118.124. PROHIBITED FEES. A justice of the peace is not entitled to a fee for:

(1) the examination of a paper or record in the justice's office;

(2) filing any process or document the justice issues that is returned to court;

(3) a motion or judgment on a motion for security for costs;

(4) taking or approving a bond for costs; [or]

(5) the first copy of a document in a criminal case issued to:

(A) a criminal defendant in the case;

(B) an attorney representing a criminal defendant in the case; or

(C) a prosecuting attorney; or

(6) the filing of a civil action by the state under Section 481.1211, Health and Safety Code.

SECTION 6. The changes in law made by this Act apply only to a violation of law that occurs on or after the effective date of this Act. A violation that occurs before the effective date of this Act is governed by the law in effect on the date the violation occurred, and the former law is continued in effect for that purpose. For purposes of this section, a violation of law occurred before the effective date of this Act if any element of the violation occurred before that date.

SECTION 7. This Act takes effect September 1, 2017.