HBA-NMO H.B. 6 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 6 By: Keel Criminal Jurisprudence 4/5/99 Introduced BACKGROUND AND PURPOSE The Texas Controlled Substances Act (Act), Chapter 481, Health and Safety Code, addresses substance abuse and sets forth criminal penalties for such abuse. Since last the legislative session, federal law has reclassified certain substances and classified new substances in the federal penalty groups for controlled substances. Changes to the Act may be needed to stay consistent with federal law. H.B. 6 modifies and adds to the controlled substance penalty groups. This bill also includes officials of political subdivisions of this and other states among those officials who may possess controlled substances; amends language concerning delivery of a controlled substance to a minor; imposes criminal penalties for crimes related to prescription forgery; repeals the section of the Act regarding multiple prosecutions; defines a "drug-free zone;" restructures the punishment of certain offenses under the Act committed in a drug-free zone; and reenacts Section 481.160 (Destruction of Excess Quantities), as amended. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subdivision (26), Section 481.002, Health and Safety Code, to provide that the sterilized seeds of the marihuana plant that are incapable of beginning germination, rather than incapable of germination, are not included in the definition of "marihuana." SECTION 2. Amends Section 481.032(a), Health and Safety Code, to delete Schedule I-A, from the list of schedules of controlled substances that the commissioner of public health is required to establish and modify. Schedule I-A, or Penalty Group1-a, consists of lysergic acid diethylamide (LSD). SECTION 3. Amends Section 481.062(a)(4), Health and Safety Code, to include among the persons who are not required to register with the director of the Department of Public Safety in order to possess a controlled substance under this chapter an officer or employee of a political subdivision of this state or another state who is lawfully engaged in the enforcement of a law relating to a controlled substance or drug or to a customs law and is authorized to possess a controlled substance in the discharge of the person's official duties. SECTION 4. Amends Subdivisions (4) and (9), Section 481.102, Health and Safety Code, as follows: (4) Includes remifentanil among a list of opiates contained within the list of Penalty Group 1 controlled substances. Makes a conforming change. (9) Includes among the list of Penalty Group 1 controlled substances gamma hydroxybutyric acid, rather than gamma hydroxybutyrate, noting the trade names of gamma hydroxybutyrate and GHB. SECTION 5. Amends Subdivision (7), Section 481.104, Health and Safety Code, to include sibutramine among a list of central nervous system stimulants contained within the list of Penalty Group 3 controlled substances. Makes conforming changes. SECTION 6. Amends Subdivision (2), Section 481.105, Health and Safety Code, to include among the list of Penalty Group 4 controlled substances a material, compound, mixture, or preparation containing, rather than the narcotic drug buprenorphine, any quantity of the narcotic substances buprenorphine and butorphanol. Makes conforming changes. SECTION 7. Amends Section 481.122 , Health and Safety Code, by amending the title and Subsections (a) and (b), and adding Subsection (d) and (e), as follows: Sec. 481.122. New Title: DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD. (a) Replaces "minor" with "child" in title. Provides that a person commits a second degree felony if the person knowingly delivers a controlled substance listed in Penalty Group 1, 1-A, 2, or 3 or marihuana and makes the delivery to a person who is a child, rather than a person who is 17 years or younger, or who is enrolled in an elementary or secondary school, or to a person who the actor knows or believes intends to deliver the controlled substance or marihuana to a child or a person enrolled in an elementary or secondary school. Makes conforming changes. (b) Provides that is an affirmative defense to prosecution under this section that the actor was a child, rather than a person younger than 18 years of age when the offense was committed; or the actor was 20 years of age or younger, rather than younger than 21 years of age when the offense was committed, and delivered one-fourth ounce or less of marijuana (sic), rather than only marihuana in an amount less than one-fourth ounce, and the actor did not receive remuneration for delivering the marihuana. Makes conforming changes. (d) Defines "child," in this section, as an individual 17 years of age or younger. (e) Authorizes that an actor, if conduct constituting an offense under this section also constitutes an offense under another section of this code, be prosecuted under either section or both. SECTION 8. Amends Section 481.126(a), Health and Safety Code, to provide that a person commits a felony of the first degree if the person expends funds the person knows are derived from the commission of an offense which may be punishable under this chapter (Texas Controlled Substances Act) by imprisonment in the institutional division for life, rather than the commission of an offense punishable under certain sections of the this chapter, effectively adding Section 481.1151(f) (the possession of 8,000 or more abuse units of LSD) to those sections. SECTION 9. Amends Section 481.129(a), Health and Safety Code, to provide criminal penalties for knowingly forging a prescription or increasing the prescribed quantity of a controlled substance in a prescription; issuing a prescription bearing a forged or fictitious signature; obtaining or attempting to obtain a controlled substance by using a forged, fictitious, or altered prescription; or obtaining or attempting to obtain a controlled substance by means of a fictitious or fraudulent telephone call. Makes conforming changes. SECTION 10. Repealer: Section 481.132 (Multiple Prosecutions), Health and Safety Code. SECTION 11. Amends Section 481.134(a), by amending Subdivisions (1), (6), and (7) to make conforming changes; and adding Subdivision (8), as follows: (8) Define "drug-free zone" as a location in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning or a playground; on a school bus; or in, on, or within 300 feet of the premises of a public or private youth center, public swimming pool, or video arcade facility. SECTION 12. Amends Sections 481.134(b)-(h), Health and Safety Code, as follows: (b) Provides that the punishment for the offense of manufacture, delivery, or possession of a controlled substance, marihuana, controlled substance analogue, or drug paraphernalia is increased to the punishment prescribed for the next highest category of the offense, if it is shown at the punishment phase of the trial that the offense was committed in a drug-free zone. Provides that the offense, if it is a Class A misdemeanor, is increased to a state jail felony. Deletes language that provides that the offense of manufacture and delivery of a Penalty Group 1, 2, 3, or 4 controlled substance or marihuana punishable as a state jail felony or felony of the second degree is increased to a felony of the third degree and a felony of the first degree, respectively, if it is shown at the punishment phase of the trial that the offense was committed in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning or a playground, or within 300 feet of the premises of a public or private youth center, public swimming pool, or video arcade facility. (c) Provides that the minimum term of imprisonment for an offense is increased by five years and the maximum fine for the offense is doubled if it shown on the trial that the offense may be punishable under this chapter by imprisonment in the institutional division for life, and was committed in a drug-free zone. Makes conforming changes. (d) Provides that it is an affirmative defense to prosecution under this section that the offense is a Class C or B misdemeanor, the offense was committed inside a private residence, and no child was present in the private residence at the time the offense was committed. Deletes existing text. Existing language of Subsection (g) incorporated into this Subsection. (e) Redesignated from Subsection (h). Existing text of Subsections (e) and (f) deleted to make conforming changes. SECTION 13. Reenacts Section 481.160, Health and Safety Code, as amended by Acts 1991, 72nd Leg., ch. 14, Sec. 199, Acts 1991, 72nd Leg., ch. 285, Sec. 2., Acts 1991, 72nd Leg., ch. 141, Sec. 1, Acts 1997, 75th Leg., ch. 745, Sec. 33. SECTION 14. Effective date: September 1, 1999. SECTION 15. Makes application of this Act prospective. SECTION 16. Emergency clause.