S.B. No. 158
AN ACT
relating to offenses involving the fraudulent or unlawful
obtaining, delivering, dispensing, distributing, or diverting of a
controlled substance; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 481, Health and Safety
Code, is amended by adding Section 481.1285 to read as follows:
Sec. 481.1285. OFFENSE: DIVERSION OF CONTROLLED SUBSTANCE
BY REGISTRANTS, DISPENSERS, AND CERTAIN OTHER PERSONS. (a) This
section applies only to a registrant, a dispenser, or a person who,
pursuant to Section 481.062(a)(1) or (2), is not required to
register under this subchapter.
(b) A person commits an offense if the person knowingly:
(1) converts to the person's own use or benefit a
controlled substance to which the person has access by virtue of the
person's profession or employment; or
(2) diverts to the unlawful use or benefit of another
person a controlled substance to which the person has access by
virtue of the person's profession or employment.
(c) An offense under Subsection (b)(1) is a state jail
felony. An offense under Subsection (b)(2) is a felony of the third
degree.
(d) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 2. Section 481.129, Health and Safety Code, is
amended by adding Subsections (a-1) and (d-1) to read as follows:
(a-1) A person commits an offense if the person, with intent
to obtain a controlled substance or combination of controlled
substances that is not medically necessary for the person or an
amount of a controlled substance or substances that is not
medically necessary for the person, obtains or attempts to obtain
from a practitioner a controlled substance or a prescription for a
controlled substance by misrepresentation, fraud, forgery,
deception, subterfuge, or concealment of a material fact. For
purposes of this subsection, a material fact includes whether the
person has an existing prescription for a controlled substance
issued for the same period of time by another practitioner.
(d-1) An offense under Subsection (a-1) is:
(1) a felony of the second degree if any controlled
substance that is the subject of the offense is listed in Schedule I
or II;
(2) a felony of the third degree if any controlled
substance that is the subject of the offense is listed in Schedule
III or IV; and
(3) a Class A misdemeanor if any controlled substance
that is the subject of the offense is listed in Schedule V.
SECTION 3. Subsection (a), Section 71.02, Penal Code, as
amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357
(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is
reenacted and amended to read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or
distribution of a controlled substance or dangerous drug in
violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; [or]
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) [(14)] any offense under Section 42.10; or
(16) [(14)] any offense under Section 46.06(a)(1) or
46.14.
SECTION 4. Subsections (b) and (c), Section 71.02, Penal
Code, as amended by Chapters 761 (H.B. 354) and 900 (S.B. 1067),
Acts of the 73rd Legislature, Regular Session, 1993, are reenacted
to read as follows:
(b) Except as provided in Subsections (c) and (d), an
offense under this section is one category higher than the most
serious offense listed in Subsection (a) that was committed, and if
the most serious offense is a Class A misdemeanor, the offense is a
state jail felony, except that if the most serious offense is a
felony of the first degree, the offense is a felony of the first
degree.
(c) Conspiring to commit an offense under this section is of
the same degree as the most serious offense listed in Subsection (a)
that the person conspired to commit.
SECTION 5. Subsection (a), Section 71.05, Penal Code, as
amended by Chapters 761 (H.B. 354) and 900 (S.B. 1067), Acts of the
73rd Legislature, Regular Session, 1993, is reenacted and amended
to read as follows:
(a) It is an affirmative defense to prosecution under
Section 71.02 that under circumstances manifesting a voluntary and
complete renunciation of the actor's [his] criminal objective, the
actor withdrew from the combination before commission of an offense
listed in [Subsection (a) of] Section 71.02(a) [71.02] and took
further affirmative action that prevented the commission of the
offense.
SECTION 6. Subsection (c), Section 71.05, Penal Code, is
amended to read as follows:
(c) Evidence that the defendant withdrew from the
combination before commission of an offense listed in [Subdivisions
(1) through (7) or Subdivision (10) of Subsection (a) of] Section
71.02(a) [71.02 of this code] and made substantial effort to
prevent the commission of an offense listed in [Subdivisions (1)
through (7) or Subdivision (10) of Subsection (a) of] Section
71.02(a) [71.02 of this code] shall be admissible as mitigation at
the hearing on punishment if the actor [he] has been found guilty
under Section 71.02 [of this code], and in the event of a finding of
renunciation under this subsection, the punishment shall be one
grade lower than that provided under Section 71.02 [of this code].
SECTION 7. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
SECTION 8. To the extent of any conflict, this Act prevails
over another Act of the 82nd Legislature, Regular Session, 2011,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 9. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 158 passed the Senate on
March 30, 2011, by the following vote: Yeas 31, Nays 0;
May 26, 2011, Senate refused to concur in House amendments and
requested appointment of Conference Committee; May 27, 2011, House
granted request of the Senate; May 28, 2011, Senate adopted
Conference Committee Report by the following vote: Yeas 31,
Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 158 passed the House, with
amendments, on May 25, 2011, by the following vote: Yeas 145,
Nays 2, two present not voting; May 27, 2011, House granted request
of the Senate for appointment of Conference Committee;
May 29, 2011, House adopted Conference Committee Report by the
following vote: Yeas 146, Nays 2, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor