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.