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A BILL TO BE ENTITLED
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AN ACT
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relating to the penalty for certain offenders for possession of a |
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small amount of certain controlled substances. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 481.115, Health and Safety Code, is |
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amended by amending Subsections (b) and (g) and adding Subsections |
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(b-1) and (b-2) to read as follows: |
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(b) Except as provided by Subsection (b-1), an [An] offense |
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under Subsection (a) is a Class A misdemeanor with a minimum term of |
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confinement of 180 days [state jail felony] if the controlled |
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substance is listed in Penalty Group 1 and the amount of the |
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controlled substance possessed is, by aggregate weight, including |
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adulterants or dilutants, less than one gram. |
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(b-1) An offense punishable under Subsection (b) is a state |
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jail felony if the person has been previously convicted of an |
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offense under this section or Section 481.1151, 481.116, 481.1161, |
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481.117, 481.118, or 481.121. |
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(b-2) An offense under Subsection (a) is a state jail felony |
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if the controlled substance is listed in Penalty Group 1-B and the |
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amount of the controlled substance possessed is, by aggregate |
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weight, including adulterants or dilutants, less than one gram. |
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(g) It is a defense to prosecution for an offense punishable |
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under Subsection (b) or (b-2) that the actor: |
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(1) was the first person to request emergency medical |
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assistance in response to the possible overdose of another person |
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and: |
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(A) made the request for medical assistance |
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during an ongoing medical emergency; |
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(B) remained on the scene until the medical |
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assistance arrived; and |
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(C) cooperated with medical assistance and law |
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enforcement personnel; or |
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(2) was the victim of a possible overdose for which |
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emergency medical assistance was requested, by the actor or by |
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another person, during an ongoing medical emergency. |
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SECTION 2. Section 481.1151, Health and Safety Code, is |
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amended by amending Subsections (b) and (d) and adding Subsection |
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(b-1) to read as follows: |
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(b) An offense under this section is: |
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(1) a Class A misdemeanor with a minimum term of |
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confinement of 180 days [state jail felony] if the number of abuse |
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units of the controlled substance is fewer than 20, except as |
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provided by Subsection (b-1); |
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(2) a felony of the third degree if the number of abuse |
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units of the controlled substance is 20 or more but fewer than 80; |
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(3) a felony of the second degree if the number of |
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abuse units of the controlled substance is 80 or more but fewer than |
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4,000; |
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(4) a felony of the first degree if the number of abuse |
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units of the controlled substance is 4,000 or more but fewer than |
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8,000; and |
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(5) punishable by imprisonment in the Texas Department |
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of Criminal Justice for life or for a term of not more than 99 years |
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or less than 15 years and a fine not to exceed $250,000, if the |
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number of abuse units of the controlled substance is 8,000 or more. |
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(b-1) An offense punishable under Subsection (b)(1) is a |
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state jail felony if the person has been previously convicted of an |
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offense under this section or Section 481.115, 481.116, 481.1161, |
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481.117, 481.118, or 481.121. |
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(d) The defense to prosecution provided by Subsection (c) is |
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not available if: |
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(1) at the time the request for emergency medical |
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assistance was made: |
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(A) a peace officer was in the process of |
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arresting the actor or executing a search warrant describing the |
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|
actor or the place from which the request for medical assistance was |
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|
made; or |
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(B) the actor is committing another offense, |
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other than an offense punishable under Section 481.115(b) or (b-2), |
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481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or |
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481.121(b)(1) or (2), or an offense under Section 481.119(b), |
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|
481.125(a), 483.041(a), or 485.031(a); |
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(2) the actor has been previously convicted of or |
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placed on deferred adjudication community supervision for an |
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|
offense under this chapter or Chapter 483 or 485; |
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(3) the actor was acquitted in a previous proceeding |
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in which the actor successfully established the defense under that |
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subsection or Section 481.115(g), 481.116(f), 481.1161(c), |
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481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g), |
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483.041(e), or 485.031(c); or |
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(4) at any time during the 18-month period preceding |
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the date of the commission of the instant offense, the actor |
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requested emergency medical assistance in response to the possible |
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|
overdose of the actor or another person. |
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SECTION 3. Section 481.116, Health and Safety Code, is |
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|
amended by amending Subsections (b) and (g) and adding Subsection |
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|
(b-1) to read as follows: |
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|
(b) Except as provided by Subsection (b-1), an [An] offense |
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|
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 punishable under Subsection (b) is a state |
|
|
jail felony if the person has been previously convicted of an |
|
|
offense under this section or Section 481.115, 481.1151, 481.1161, |
|
|
481.117, 481.118, or 481.121. |
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(g) The defense to prosecution provided by Subsection (f) is |
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|
not available if: |
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|
(1) at the time the request for emergency medical |
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|
assistance was made: |
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|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
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|
(B) the actor is committing another offense, |
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|
other than an offense punishable under Section 481.115(b) or (b-2), |
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|
481.1151(b)(1), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or |
|
|
481.121(b)(1) or (2), or an offense under Section 481.119(b), |
|
|
481.125(a), 483.041(a), or 485.031(a); |
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|
(2) the actor has been previously convicted of or |
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|
placed on deferred adjudication community supervision for an |
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|
offense under this chapter or Chapter 483 or 485; |
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(3) the actor was acquitted in a previous proceeding |
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|
in which the actor successfully established the defense under that |
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|
subsection or Section 481.115(g), 481.1151(c), 481.1161(c), |
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|
481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g), |
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|
483.041(e), or 485.031(c); or |
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(4) at any time during the 18-month period preceding |
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|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to the possible |
|
|
overdose of the actor or another person. |
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SECTION 4. Section 481.1161(d), Health and Safety Code, is |
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|
amended to read as follows: |
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(d) The defense to prosecution provided by Subsection (c) is |
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|
not available if: |
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(1) at the time the request for emergency medical |
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|
assistance was made: |
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|
(A) a peace officer was in the process of |
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|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
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(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.117(b), 481.118(b), or |
|
|
481.121(b)(1) or (2), or an offense under Section 481.119(b), |
|
|
481.125(a), 483.041(a), or 485.031(a); |
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(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 483 or 485; |
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|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
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|
481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g), |
|
|
483.041(e), or 485.031(c); or |
|
|
(4) at any time during the 18-month period preceding |
|
|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to |
|
|
the possible overdose of the actor or another person. |
|
|
SECTION 5. Section 481.117(g), Health and Safety Code, is |
|
|
amended to read as follows: |
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|
(g) The defense to prosecution provided by Subsection (f) is |
|
|
not available if: |
|
|
(1) at the time the request for emergency medical |
|
|
assistance was made: |
|
|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
|
|
(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.118(b), or |
|
|
481.121(b)(1) or (2), or an offense under Section 481.119(b), |
|
|
481.125(a), 483.041(a), or 485.031(a); |
|
|
(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 483 or 485; |
|
|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
|
|
481.1161(c), 481.118(f), 481.119(c), 481.121(c), 481.125(g), |
|
|
483.041(e), or 485.031(c); or |
|
|
(4) at any time during the 18-month period preceding |
|
|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to the possible |
|
|
overdose of the actor or another person. |
|
|
SECTION 6. Section 481.118(g), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(g) The defense to prosecution provided by Subsection (f) is |
|
|
not available if: |
|
|
(1) at the time the request for emergency medical |
|
|
assistance was made: |
|
|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
|
|
(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), or |
|
|
481.121(b)(1) or (2), or an offense under Section 481.119(b), |
|
|
481.125(a), 483.041(a), or 485.031(a); |
|
|
(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 483 or 485; |
|
|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
|
|
481.1161(c), 481.117(f), 481.119(c), 481.121(c), 481.125(g), |
|
|
483.041(e), or 485.031(c); or |
|
|
(4) at any time during the 18-month period preceding |
|
|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to the possible |
|
|
overdose of the actor or another person. |
|
|
SECTION 7. Section 481.119(d), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(d) The defense to prosecution provided by Subsection (c) is |
|
|
not available if: |
|
|
(1) at the time the request for emergency medical |
|
|
assistance was made: |
|
|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
|
|
(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), |
|
|
481.118(b), or 481.121(b)(1) or (2), or an offense under Section |
|
|
481.125(a), 483.041(a), or 485.031(a); |
|
|
(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 483 or 485; |
|
|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
|
|
481.1161(c), 481.117(f), 481.118(f), 481.121(c), 481.125(g), |
|
|
483.041(e), or 485.031(c); or |
|
|
(4) at any time during the 18-month period preceding |
|
|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to the possible |
|
|
overdose of the actor or another person. |
|
|
SECTION 8. Section 481.121(d), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(d) The defense to prosecution provided by Subsection (c) is |
|
|
not available if: |
|
|
(1) at the time the request for emergency medical |
|
|
assistance was made: |
|
|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
|
|
(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), or |
|
|
481.118(b), or an offense under Section 481.119(b), 481.125(a), |
|
|
483.041(a), or 485.031(a); |
|
|
(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 483 or 485; |
|
|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
|
|
481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.125(g), |
|
|
483.041(e), or 485.031(c); or |
|
|
(4) at any time during the 18-month period preceding |
|
|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to the possible |
|
|
overdose of the actor or another person. |
|
|
SECTION 9. Section 481.125(h), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(h) The defense to prosecution provided by Subsection (g) is |
|
|
not available if: |
|
|
(1) at the time the request for emergency medical |
|
|
assistance was made: |
|
|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
|
|
(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), |
|
|
481.118(b), or 481.121(b)(1) or (2), or an offense under Section |
|
|
481.119(b), 483.041(a), or 485.031(a); |
|
|
(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 483 or 485; |
|
|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
|
|
481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c), |
|
|
483.041(e), or 485.031(c); or |
|
|
(4) at any time during the 18-month period preceding |
|
|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to the possible |
|
|
overdose of the actor or another person. |
|
|
SECTION 10. Sections 481.134(d) and (e), Health and Safety |
|
|
Code, are amended to read as follows: |
|
|
(d) An offense otherwise punishable under Section |
|
|
481.112(b), 481.1121(b)(1), 481.113(b), 481.114(b), 481.115(b-1) |
|
|
or (b-2) [481.115(b)], 481.1151(b-1) [481.1151(b)(1)], |
|
|
481.116(b-1) [481.116(b)], 481.1161(b)(3), 481.120(b)(3), or |
|
|
481.121(b)(3) is a felony of the third degree if it is shown on the |
|
|
trial of the offense that the offense was committed: |
|
|
(1) in, on, or within 1,000 feet of any real property |
|
|
that is owned, rented, or leased to a school or school board, the |
|
|
premises of a public or private youth center, or a playground; |
|
|
(2) on a school bus; or |
|
|
(3) by any unauthorized person 18 years of age or |
|
|
older, in, on, or within 1,000 feet of premises owned, rented, or |
|
|
leased by a general residential operation operating as a |
|
|
residential treatment center. |
|
|
(e) An offense otherwise punishable under Section |
|
|
481.115(b), 481.1151(b)(1), 481.116(b), 481.117(b), 481.119(a), |
|
|
481.120(b)(2), or 481.121(b)(2) is a state jail felony if it is |
|
|
shown on the trial of the offense that the offense was committed: |
|
|
(1) in, on, or within 1,000 feet of any real property |
|
|
that is owned, rented, or leased to a school or school board, the |
|
|
premises of a public or private youth center, or a playground; |
|
|
(2) on a school bus; or |
|
|
(3) by any unauthorized person 18 years of age or |
|
|
older, in, on, or within 1,000 feet of premises owned, rented, or |
|
|
leased by a general residential operation operating as a |
|
|
residential treatment center. |
|
|
SECTION 11. Section 483.041(f), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(f) The defense to prosecution provided by Subsection (e) is |
|
|
not available if: |
|
|
(1) at the time the request for emergency medical |
|
|
assistance was made: |
|
|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
|
|
(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), |
|
|
481.118(b), or 481.121(b)(1) or (2), or an offense under Section |
|
|
481.119(b), 481.125(a), or 485.031(a); |
|
|
(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 481 or 485; |
|
|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
|
|
481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c), |
|
|
481.125(g), or 485.031(c); or |
|
|
(4) at any time during the 18-month period preceding |
|
|
the date of the commission of the instant offense, the actor |
|
|
requested emergency medical assistance in response to the possible |
|
|
overdose of the actor or another person. |
|
|
SECTION 12. Section 485.031(d), Health and Safety Code, is |
|
|
amended to read as follows: |
|
|
(d) The defense to prosecution provided by Subsection (c) is |
|
|
not available if: |
|
|
(1) at the time the request for emergency medical |
|
|
assistance was made: |
|
|
(A) a peace officer was in the process of |
|
|
arresting the actor or executing a search warrant describing the |
|
|
actor or the place from which the request for medical assistance was |
|
|
made; or |
|
|
(B) the actor is committing another offense, |
|
|
other than an offense punishable under Section 481.115(b) or (b-2), |
|
|
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), |
|
|
481.118(b), or 481.121(b)(1) or (2), or an offense under Section |
|
|
481.119(b), 481.125(a), or 483.041(a); |
|
|
(2) the actor has been previously convicted of or |
|
|
placed on deferred adjudication community supervision for an |
|
|
offense under this chapter or Chapter 481 or 483; |
|
|
(3) the actor was acquitted in a previous proceeding |
|
|
in which the actor successfully established the defense under that |
|
|
subsection or Section 481.115(g), 481.1151(c), 481.116(f), |
|
|
481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c), |
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481.125(g), or 483.041(e); or |
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(4) at any time during the 18-month period preceding |
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the date of the commission of the instant offense, the actor |
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requested emergency medical assistance in response to the possible |
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overdose of the actor or another person. |
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SECTION 13. Subchapter K, Chapter 42A, Code of Criminal |
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Procedure, is amended by adding Article 42A.518 to read as follows: |
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Art. 42A.518. COMMUNITY SUPERVISION FOR CERTAIN DRUG |
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OFFENSES; EDUCATIONAL PROGRAM. A judge who grants community |
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supervision to a person convicted of a Class A misdemeanor under |
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Section 481.115(b), 481.1151(b)(1), 481.116(b), or 481.1161(b)(2), |
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|
Health and Safety Code, may require, as a condition of community |
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|
supervision, that the person successfully complete an educational |
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|
program on substance abuse awareness approved by the Texas |
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|
Department of Licensing and Regulation. |
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SECTION 14. Articles 42A.551(a) and (c), Code of Criminal |
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|
Procedure, are amended to read as follows: |
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|
(a) Except as otherwise provided by Subsection (b) or (c), |
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on conviction of a state jail felony under Section 481.115(b-1) or |
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(b-2) [481.115(b)], 481.1151(b-1) [481.1151(b)(1)], 481.116(b-1) |
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[481.116(b)], 481.1161(b)(3), 481.121(b)(3), or 481.129(g)(1), |
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Health and Safety Code, that is punished under Section 12.35(a), |
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|
Penal Code, the judge shall suspend the imposition of the sentence |
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|
and place the defendant on community supervision. |
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|
(c) Subsection (a) does not apply to a defendant who: |
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(1) under Section 481.1151(b-1) [481.1151(b)(1)], |
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|
Health and Safety Code, possessed more than five abuse units of the |
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|
controlled substance; |
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|
(2) under Section 481.1161(b)(3), Health and Safety |
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|
Code, possessed more than one pound, by aggregate weight, including |
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|
adulterants or dilutants, of the controlled substance; or |
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(3) under Section 481.121(b)(3), Health and Safety |
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|
Code, possessed more than one pound of marihuana. |
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|
SECTION 15. 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 was |
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|
committed before that date. |
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SECTION 16. This Act takes effect September 1, 2023. |