HBA-NMO C.S.H.B. 6 76(R)BILL ANALYSIS
Office of House Bill AnalysisC.S.H.B. 6
By: Keel
Criminal Jurisprudence
4/27/1999
Committee Report (Substituted)
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 the last legislative session, federal law has reclassified
certain controlled substances and classified new controlled substances in
the federal penalty groups. Changes to the Act are necessary if Texas law
is to stay consistent with federal law. C.S.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 restricts the accessibility of certain information.
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 Section 481.067, Health and Safety Code, to require
certain persons to maintain a record of each acquisition and each disposal
of a controlled substance by the person. Provides that a record made by
this section must be made at the time of the transaction that constitutes
the basis for the record. Provides that a record or inventory required by
this section must be maintained for at least two years after the date the
record or inventory is made. Makes conforming and nonsubstantive changes.
SECTION 5. Amends Section 481.068(b), Health and Safety Code, to prohibit
a practitioner engaged in authorized medical practice or research, except
as a provided by Sections 481.074(b) and 481.075(g), rather than (d), from
being required to furnish the name or identity of a patient or research
subject to the Texas Department of Health, rather than the Department of
Public Safety, in addition to other entities.
SECTION 6. Amends Sections 481.074(c) and (f), Health and Safety Code, to
require a prescribing practitioner, not later than the seventh day, rather
than 72 hours, after the date the prescribing practitioner authorizes,
rather than authorizing, an emergency oral or telephonically communicated
prescription, to cause a written prescription to be delivered in a certain
manner. Provides that Schedule II prescriptions for patients in a
long-term care facility or patients with a medical diagnosis documenting a
terminal illness are, rather than shall be, valid for a period not to
exceed 60, rather than 30 days after, rather than from, the issue date
unless sooner terminated by discontinuance of the medication. Makes
conforming and nonsubstantive changes.
SECTION 7. Amends Section 481.075(g), Health and Safety Code, to make a
technical correction.
SECTION 8. Amends Section 481.0761(c), Health and Safety Code, to include
in the authority of the director of the Department of Public Safety to
waive or delay any requirement relating to the time or manner of reporting
requirements, a manner of reporting as a substitute for reporting by use of
a triplicate prescription during a period of transition from the use of a
triplicate prescription as determined by the director.
SECTION 9. Amends Section 481.102, Health and Safety Code, to include
remifentanil among a list of opiates contained within the list of Penalty
Group 1 controlled substances. Includes among the list of Penalty Group 1
controlled substances gamma hydroxybutyric acid, and notes the trade names
of gamma hydroxybutyrate and GHB. Makes a conforming change.
SECTION 10. Amends Section 481.104(a), 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
nonsubstantive changes.
SECTION 11. Amends 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 12. Amends Section 481.122 , Health and Safety Code, by amending
Subsections (a) and (b), and adding Subsection (d) and (e), as follows:
(a) 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 a
public or private 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 a public or private 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 only marihuana in an amount equal to or less,
rather than less, than one-fourth ounce, and the actor did not receive
remuneration for the delivery. 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 13. 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
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 481.115(f) (the possession of 8,000 or
more abuse units of LSD) to those sections.
SECTION 14. Amends Section 481.129(a), Health and Safety Code, to provide
criminal penalties for issuing a prescription bearing a forged or
fictitious signature; or obtaining or attempting to obtain a controlled
substance or an increased quantity of a controlled substance by certain
fraudulent means. Makes conforming changes.
SECTION 15. Amends Section 481.134, Health and Safety Code, as follows:
Sec. 481.134. DRUG-FREE ZONES. Defines "child" as a person who is 17
years of age or younger, rather than defining "minor" as a person who is
younger than 18 years of age. Defines "drug-free zone" as a location in,
on, or within 1,000 feet of the premises of a school; any real property
that is owned, rented or leased to a school, a school district, a school
district board of trustees, or another entity that governs the school;
premises owned, rented, or leased by an institution of higher learning; a
location in, on, or within 300 feet of the premises of a public or private
youth center, public swimming pool, or video arcade facility; a playground;
or a school bus. Makes conforming changes.
(b) Provides that the punishment for the offense under this subchapter
(Offenses and Penalties) related to the manufacture, delivery, or
possession of a controlled substance, marihuana, a controlled substance
analogue, or drug paraphernalia is increased to the punishment prescribed
for the next higher 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 and at the time of the commission of the offense, the defendant knew
or should have known that the defendant was in a drug-free zone. Deletes
language to make conforming changes.
(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 to make conforming changes. Makes conforming and nonsubstantive
changes. Existing language of Subsection (g) incorporated into this
subsection.
(e) Redesignated from Subsection (h). Makes nonsubstantive changes.
Existing text of Subsections (e) and (f) deleted to make conforming
changes.
SECTION 16. Amends Section 552.118, Government Code, to provide that
information is excepted from the requirements of Section 552.021
(Availability of Public Information) if it is information collected under
Section 481.075 (Official Prescription Program), Health and Safety Code.
SECTION 17. Repealer: Section 481.132 (Multiple Prosecutions), Health and
Safety Code.
SECTION 18. Effective date: September 1, 1999.
Makes application of this Act as it relates to criminal offenses
prospective.
SECTION 19. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute modifies the caption of the original by making conforming
changes.
The substitute adds new SECTIONS 4-8. For complete analysis of these new
SECTIONS please see the Section-by-Section portion of this document.
The substitute redesignates SECTIONS 4-10 of the original as SECTION 9-14,
and 17, respectively. Modifies language to conform to the style of the
Legislative Council.
The substitute redesignates SECTION 11 of the original (Section 481.134,
Health and Safety Code) as SECTION 15 and modifies it by defining
"drug-free zone" as a location in, on, or within 1,000 feet of the premises
of a school; any real property that is owned, rented or leased to a school,
a school district, a school district board of trustees, or another entity
that governs the school; premises owned, rented, or leased by an
institution of higher learning; a location in, on, or within 300 feet of
the premises of a public or private youth center, public swimming pool, or
video arcade facility; a playground; or a school bus. The original would
have defined "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.
The substitute incorporates SECTION 12 (Sections 481.134(b)-(h), Health and
Safety Code) into SECTION 15. The substitute modifies Subsection (b) by
conditioning the enhancement of penalties on the fact that the defendant
knew or should have known that the defendant was in a drug-free zone at the
time of the commission of the offense; and by removing language that would
have provided that a Class A misdemeanor is a state jail felony under this
section. The substitute modifies language to conform to the style of the
Legislative Council, and makes other conforming and nonsubstantive changes.
The substitute removes SECTION 13 of the original which would have
reenacted Section 481.160, Health and Safety Code, as amended by Acts 1991,
72nd Legislature, Chapter 14, Section 199, Acts 1991, 72nd Legislature,
Chapter 285, Section 2, Acts 1991, 72nd Legislature, Chapter 141, Section
1, Acts 1997, 75th Legislature, Chapter 745, Section 33.
The substitute incorporates SECTION 14 of the original, which makes this
Act effective September 1, 1999, into SECTION 18.
The substitute redesignates SECTION 15 of the original as SECTION 18 and
modifies language to conform to the style of the Legislative Council.
The substitute redesignates SECTION 16 of the original (emergency clause)
as SECTION 19.
The substitute adds new SECTION 16. For a complete analysis of this
section please see the Section-by-Section portion of this document.