85S10886 LHC-D
By: Moody H.B. No. 334
A BILL TO BE ENTITLED
AN ACT
relating to the civil and criminal penalties for possession of
certain small amounts of marihuana and an exception to prosecution
for possession of associated drug paraphernalia; creating a
criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 481.121(b), Health and Safety Code, is
amended to read as follows:
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana
possessed is two ounces or less but more than one ounce;
(2) a Class A misdemeanor if the amount of marihuana
possessed is four ounces or less but more than two ounces;
(3) a state jail felony if the amount of marihuana
possessed is five pounds or less but more than four ounces;
(4) a felony of the third degree if the amount of
marihuana possessed is 50 pounds or less but more than 5 pounds;
(5) a felony of the second degree if the amount of
marihuana possessed is 2,000 pounds or less but more than 50 pounds;
and
(6) punishable by imprisonment in the Texas Department
of Criminal Justice for life or for a term of not more than 99 years
or less than 5 years, and a fine not to exceed $50,000, if the amount
of marihuana possessed is more than 2,000 pounds.
SECTION 2. Subchapter D, Chapter 481, Health and Safety
Code, is amended by adding Sections 481.1211 and 481.1212 to read as
follows:
Sec. 481.1211. CIVIL PENALTY: POSSESSION OF SMALL AMOUNT OF
MARIHUANA. (a) Notwithstanding Section 481.121 and except as
otherwise provided by Section 481.1212, a person who knowingly or
intentionally possesses a usable quantity of marihuana in an amount
that is one ounce or less does not commit an offense but is liable to
the state for a civil penalty not to exceed $250.
(b) The imposition of a civil penalty under this section is
not a conviction and may not be considered a conviction for any
purpose.
Sec. 481.1212. OFFENSE: SUBSEQUENT POSSESSION OF SMALL
AMOUNT OF MARIHUANA. (a) A person commits an offense if the person:
(1) knowingly or intentionally possesses a usable
quantity of marihuana in an amount that is one ounce or less; and
(2) has previously been assessed a civil penalty three
times under Section 481.1211.
(b) An offense under this section is a Class C misdemeanor.
SECTION 3. Section 481.125, Health and Safety Code, is
amended by adding Subsection (g) to read as follows:
(g) It is a defense to prosecution under this section that
drug paraphernalia was knowingly or intentionally used, possessed,
or delivered solely in furtherance of a violation of Section
481.1211 or an offense under Section 481.1212.
SECTION 4. Subchapter B, Chapter 45, Code of Criminal
Procedure, is amended by adding Article 45.062 to read as follows:
Art. 45.062. PROCEEDINGS FOR CERTAIN MARIHUANA POSSESSION
VIOLATIONS AND OFFENSES. (a) A peace officer may not make an
arrest solely because of a violation of Section 481.1211, Health
and Safety Code, regardless of whether the person may be subject to
prosecution under Section 481.1212 of that code. A peace officer
may issue to a person a citation that contains written notice of the
time and place the person must appear before a justice court, the
name and address of the person charged, and the violation charged.
The citation must notify the person that the person may be subject
to prosecution for a Class C misdemeanor under Section 481.1212,
Health and Safety Code, if the person has previously been assessed a
civil penalty three times under Section 481.1211, Health and Safety
Code.
(b) The district or county attorney of the county in which
the conduct described by Section 481.1211, Health and Safety Code,
is alleged to have occurred may:
(1) bring an action in the justice court of the county
to collect the civil penalty of a person who receives a citation
under this section; or
(2) charge the person with an offense under Section
481.1212, Health and Safety Code, if the person has previously been
assessed a civil penalty three times under Section 481.1211 of that
code.
(c) Except as otherwise provided by this article, a civil
action under this article for a violation of Section 481.1211,
Health and Safety Code, shall be conducted in the manner provided by
this chapter as if an offense were charged.
(d) The court may not:
(1) issue an arrest warrant under Article 45.014 for a
violation of Section 481.1211, Health and Safety Code, or an
offense under Section 481.1212 of that code; or
(2) require the person who violates Section 481.1211,
Health and Safety Code, or commits an offense under Section
481.1212 of that code, to give bail under Article 45.016.
(e) A citation issued under this article is considered to be
a sufficient complaint for purposes of Articles 45.018 and 45.019
if the citation is filed with the court by a district or county
attorney.
(f) A person liable for a civil penalty under Section
481.1211, Health and Safety Code, may not appeal under Article
45.042.
(g) Before imposing a civil penalty under Section 481.1211,
Health and Safety Code, the court shall determine whether the
person subject to the penalty is indigent. If the court determines
the person is indigent, the court shall waive the penalty and may
order the person to complete not more than 10 hours of community
service.
(h) Subsections (n), (p), and (q) apply to a person for whom
a court waives a penalty under Subsection (g).
(i) The court may waive or reduce the civil penalty for a
person other than a person described by Subsection (g) if:
(1) the person subject to a civil penalty under
Section 481.1211, Health and Safety Code, attends a program that
provides education in substance abuse and is approved by the
Department of State Health Services, the Texas Department of
Licensing and Regulation, or the Texas Department of Public Safety;
or
(2) the person performs not more than 10 hours of
community service, as ordered by the court.
(j) If during a proceeding for a violation of Section
481.1211, Health and Safety Code, the court finds that the person
has previously been assessed a civil penalty under that section one
or two times, the court shall, in addition to assessing a civil
penalty, order the person to attend a program that provides
education in substance abuse and is approved by the Department of
State Health Services, the Texas Department of Licensing and
Regulation, or the Texas Department of Public Safety.
(k) If during a proceeding for a violation of Section
481.1211, Health and Safety Code, the court finds that the person
has previously been assessed a civil penalty under that section
three times, the court shall suspend the proceedings and notify the
appropriate prosecuting attorney so that the person may be charged
with an offense under Section 481.1212, Health and Safety Code.
(l) On a plea of guilty or nolo contendere for an offense
under Section 481.1212, Health and Safety Code, by a defendant and
payment of all court costs, the judge shall defer further
proceedings without entering an adjudication of guilt and place the
defendant on probation under the provisions of Article 45.051.
(m) The court may issue a capias for the arrest of a person
who fails to appear or to make payment, as directed by a citation
issued under this section.
(n) Law enforcement may seize any marihuana in possession of
a person subject to a civil penalty under Section 481.1211, Health
and Safety Code, or subject to prosecution under Section 481.1212
of that code. If marihuana is seized under this article in
connection with a violation of Section 481.1211, Health and Safety
Code, law enforcement shall preserve the marihuana as if the
marihuana were evidence of an offense under Section 481.1212,
Health and Safety Code, pending the final resolution of a civil
proceeding under this article. After final resolution of a civil
proceeding under this article, any marihuana seized is subject to
forfeiture and shall be disposed of in accordance with Section
481.159, Health and Safety Code.
(o) This article does not affect the authority of a peace
officer to conduct a search or seize marihuana or other property as
contraband under Chapter 18 or 59 or other law.
(p) The identity of a person cited for a violation of
Section 481.1211, Health and Safety Code, is confidential
information and may not be disclosed to the public unless the person
is charged with an offense under Section 481.1212, Health and
Safety Code, in connection with that citation.
(q) The identity of a person found liable for a civil
penalty under Section 481.1211, Health and Safety Code, is
confidential information and may not be disclosed to the public.
SECTION 5. Section 51.03(a), Family Code, is amended to
read as follows:
(a) Delinquent conduct is:
(1) conduct, other than a traffic offense, that
violates a penal law of this state or of the United States
punishable by imprisonment or by confinement in jail;
(2) conduct that violates a lawful order of a court
under circumstances that would constitute contempt of that court
in:
(A) a justice or municipal court;
(B) a county court for conduct punishable only by
a fine; or
(C) a truancy court;
(3) conduct that violates Section 49.04, 49.05, 49.06,
49.07, or 49.08, Penal Code; [or]
(4) conduct that violates Section 106.041, Alcoholic
Beverage Code, relating to driving under the influence of alcohol
by a minor (third or subsequent offense); or
(5) conduct for which a person is subject to a civil
penalty under Section 481.1211, Health and Safety Code, or that
violates Section 481.1212 of that code.
SECTION 6. Section 118.124, Local Government Code, is
amended to read as follows:
Sec. 118.124. PROHIBITED FEES. A justice of the peace is
not entitled to a fee for:
(1) the examination of a paper or record in the
justice's office;
(2) filing any process or document the justice issues
that is returned to court;
(3) a motion or judgment on a motion for security for
costs;
(4) taking or approving a bond for costs; [or]
(5) the first copy of a document in a criminal case
issued to:
(A) a criminal defendant in the case;
(B) an attorney representing a criminal
defendant in the case; or
(C) a prosecuting attorney; or
(6) the filing of a civil action by the state under
Section 481.1211, Health and Safety Code.
SECTION 7. The changes in law made by this Act apply only to
a violation of law that occurs on or after the effective date of
this Act. A violation that occurs before the effective date of this
Act is governed by the law in effect on the date the violation
occurred, and the former law is continued in effect for that
purpose. For purposes of this section, a violation of law occurred
before the effective date of this Act if any element of the
violation occurred before that date.
SECTION 8. This Act takes effect December 1, 2017.